Exhibit 1.3
UNDERWRITING AGREEMENT
CHITTENDEN CORPORATION
(a Vermont corporation)
and
▇▇▇▇▇▇▇▇▇▇ CAPITAL TRUST [ ]
(a Delaware statutory business trust)
[ ] Capital Securities
[ ]% Capital Securities
(Liquidation Amount $25 Per Capital Security)
Dated: [ ], 200[ ]
Table of Contents
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SECTION 1. Representations and Warranties.................................. 3
(a) Representations and Warranties by the Company and the Trust............ 3
(i) Compliance with Registration Requirements..................... 3
(ii) Incorporated Documents........................................ 4
(iii) Independent Accountants....................................... 4
(iv) Financial Statements.......................................... 4
(v) No Material Adverse Change in Business........................ 5
(vi) Good Standing of the Company.................................. 5
(vii) Good Standing of Subsidiaries................................. 5
(viii) FDI Act....................................................... 6
(ix) Existence of Trust............................................ 6
(x) Common Securities............................................. 6
(xi) Authorization of Trust Agreement.............................. 6
(xii) Administrative Trustees....................................... 6
(xiii) Guarantee Agreement........................................... 6
(xiv) Capital Securities............................................ 7
(xv) Authorization of Indenture.................................... 7
(xvi) Authorization of Debentures................................... 7
(xvii) Authorization of Agreement.................................... 7
(xviii) Capitalization................................................ 7
(xix) Absence of Defaults and Conflicts............................. 8
(xx) Absence of Labor Dispute...................................... 9
(xxi) Absence of Proceedings........................................ 9
(xxii) Possession of Insurance....................................... 9
(xxiii) Possession of Intellectual Property........................... 9
(xxiv) Possession of Licenses and Permits............................ 9
(xxv) Manipulation.................................................. 10
(xxvi) Investment Company Act........................................ 10
(xxvii) Other Contracts............................................... 10
(xxviii) Absence of Further Requirements............................... 10
(xxix) Title to Property............................................. 10
(b) Officers' Certificates................................................. 11
SECTION 2. Sale and Delivery to Underwriters; Closing...................... 11
(a) Initial Capital Securities......................................... 11
(b) Option Capital Securities.......................................... 11
(c) Payment............................................................ 12
(d) Denominations; Registration........................................ 12
SECTION 3. Covenants of the Company and the Trust.......................... 12
(a) Compliance with Securities Regulations and Commission Requests..... 12
(b) Filing of Amendments............................................... 13
(c) Delivery of Registration Statements................................ 13
(d) Delivery of Prospectus............................................. 13
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(e) Continued Compliance with Securities Laws.......................... 14
(f) Blue Sky Qualifications............................................ 14
(g) Rule 158........................................................... 14
(h) DTC................................................................ 14
(i) Use of Proceeds.................................................... 15
(j) Restriction on Sale of Securities.................................. 15
(k) Listing............................................................ 15
(l) Reporting Requirements............................................. 15
SECTION 4. Payment of Expenses............................................. 15
(a) Expenses........................................................... 15
(b) Termination of Agreement........................................... 16
SECTION 5. Conditions of Underwriters' Obligations......................... 16
(a) Effectiveness of Registration Statement............................ 16
(b) Opinion of Counsel for Company..................................... 16
(c) Opinion of Special Tax Counsel for the Trust and the Company....... 16
(d) Opinion of Special Delaware Counsel for the Trust.................. 17
(e) Opinion of Counsel for The Bank of New York........................ 17
(f) Opinion of Counsel for Underwriters................................ 17
(g) Officers' Certificates............................................. 17
(h) Accountant's Comfort Letter........................................ 18
(i) Bring-down Comfort Letter.......................................... 18
(j) Maintenance of Rating.............................................. 18
(k) Over-allotment Option.............................................. 18
(l) Additional Documents............................................... 19
(m) Termination of Agreement........................................... 19
(n) Approval of Listing................................................ 19
SECTION 6. Indemnification................................................. 19
(a) Indemnification of Underwriters.................................... 19
(b) Indemnification of Trust by Company................................ 20
(c) Indemnification of Trust, Company, Directors and Officers.......... 20
(d) Actions against Parties; Notification.............................. 21
(e) Settlement without Consent if Failure to Reimburse................. 21
SECTION 7. Contribution.................................................... 21
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.. 23
SECTION 9. Termination of Agreement........................................ 23
(a) Termination; General............................................... 23
(b) Liabilities........................................................ 23
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SECTION 10. Default by One or More of the Underwriters..................... 24
SECTION 11. Notices........................................................ 24
SECTION 12. Parties........................................................ 24
SECTION 13. GOVERNING LAW AND TIME......................................... 25
SECTION 14. Effect of Headings............................................. 25
SCHEDULE
Schedule A-- List of Underwriters........................ Sch. A-1
EXHIBITS
Exhibit A-- Form of Opinion of Company's Counsel.............. A-1
Exhibit B-- Form of Opinion of Trust's Special
Delaware Counsel.............................................. B-1
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CHITTENDEN CORPORATION
(a Vermont corporation)
and
▇▇▇▇▇▇▇▇▇▇ CAPITAL TRUST [ ]
(a Delaware statutory business trust)
[ ] Capital Securities
[ ]% Capital Securities
(Liquidation Amount $25 Per Capital Security)
UNDERWRITING AGREEMENT
[ ], 200[ ]
▇▇▇▇▇▇ Brothers Inc.
as Representative of the several Underwriters
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇▇▇ Capital Trust [ ] (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 Code, 12 Del. C. ss. ss. 3801 et
seq.), confirms its agreement with ▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇ Brothers") and
each of the other Underwriters named in Schedule A hereto (collectively the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇ Brothers is acting
as Representative (in such capacity, the "Representative") with respect to the
issue and sale by the Trust and the purchase by the Underwriters, acting
severally and not jointly, of [ ]% Capital Securities (liquidation amount $25
per capital security) in the respective numbers set forth in said Schedule A
hereto (the "Initial Capital Securities") and with respect to the grant by the
Trust to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of the additional
Capital Securities to cover over-allotments, if any. The aforesaid [ ] Initial
Capital Securities and all or part of the [ ] Capital Securities subject to the
option described in Section 2(b) hereof (the "Option Capital Securities") are
hereinafter called, collectively, the "Capital Securities." The Capital
Securities are more fully described in the Prospectus (as defined below).
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The Capital Securities and the Common Securities, referred to below, will
be guaranteed by Chittenden Corporation (a Vermont corporation) (the "Company"),
to the extent set forth in the Prospectus, with respect to distributions and
amounts payable upon liquidation or redemption (the "Securities Guarantee")
pursuant to the Guarantee Agreement (the "Guarantee Agreement") to be dated as
of Closing Time (as defined below), executed and delivered by the Company and
The Bank of New York (the "Guarantee Trustee"), a New York banking corporation
not in its individual capacity but solely as trustee, for the benefit of the
holders from time to time of the Capital Securities and the Common Securities,
referred to below. The Company and the Trust each understand that the
Underwriters propose to make a public offering of the Capital Securities as soon
as the Representative deems advisable after this Agreement has been executed and
delivered, and the Trust Agreement (as defined herein), the Indenture (as
defined herein) and the Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The entire proceeds from the
sale of the Capital Securities will be combined with the entire proceeds from
the sale by the Trust to the Company of its common securities (the "Common
Securities") and will be used by the Trust to purchase $ [ ] aggregate principal
amount of [ ]% Junior Subordinated Debentures due [ ], 20[ ] (the "Debentures")
issued by the Company and, if all or part of the Option Capital Securities are
purchased, up to approximately an additional $[ ] aggregate principal amount of
Debentures (the "Option Debentures"). The aforesaid Initial Debentures and
Option Debentures are hereinafter called, collectively, the "Debentures." The
Capital Securities and the Common Securities will be issued pursuant to the
Amended and Restated Trust Agreement of the Trust, to be dated as of Closing
Time (the "Trust Agreement"), among the Company, as sponsor, The Bank of New
York, as property trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee"), and [ ], [ ] and [ ]
as administrative trustees (the "Administrative Trustees" and together with the
Property Trustee and the Delaware Trustee, the "Trustees"), and the holders from
time to time of undivided beneficial interests in the assets of the Trust. The
Debentures will be issued pursuant to an Indenture, dated as of Closing Time
(the "Indenture"), between the Company and The Bank of New York, as trustee (the
"Debenture Trustee"). The Capital Securities, the Securities Guarantee and the
Debentures are collectively referred to herein as the "Securities." Capitalized
terms used herein without definition have the respective meanings specified in
the Prospectus (as defined below).
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on Form S-3 (Nos.
333-[ ] and 333-[ ]-01), as amended by Pre-effective Amendment No. 1 thereto,
including the related preliminary prospectus, covering the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), which
permits the delayed or continuous offering of securities pursuant to Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus (including a prospectus
supplement relating to the Securities) in accordance with the provisions of Rule
430A ("Rule 430A") of the 1933 Act Regulations, if applicable, and paragraph (b)
of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company
has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations,
prepare and file a term sheet relating to the Securities (a "Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b). The information
included in such prospectus or in such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration
2
statement at the time it became effective (a) pursuant to paragraph (b) of Rule
430A is referred to as "Rule 430A Information" or (b) pursuant to paragraph (d)
of Rule 434 is referred to as "Rule 434 Information." The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Capital Securities together with a base prospectus. Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, if any, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for
use in connection with the offering of the Capital Securities is herein called
the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to
the preliminary prospectus dated [ ], 200[ ], together with the Term Sheet, and
all references in this Agreement to the date of the Prospectus shall mean the
date of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, the preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company and the Trust. The
Company and the Trust jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time and, if applicable,
as of each Date of Delivery (as defined below) (in each case, a "Representation
Date"), and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company and the Trust, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
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At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, at the date hereof, and at each Representation Date, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and
the rules and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not 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. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time and at each Date of
Delivery, if any, included or will include an untrue statement of a material
fact or omitted or will 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. If Rule 434 is used, the Company and the Trust will comply
with the requirements of Rule 434. The representations and warranties in this
subsection shall not apply (A) to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Trust or the Company in writing by any
Underwriter through ▇▇▇▇▇▇ Brothers expressly for use in the Registration
Statement or the Prospectus or (B) to that part of the Registration Statement
that constitutes the Statements of Eligibility and Qualification on Forms T-1
(the "Forms T-1") under the Trust Indenture Act of the Debenture Trustee, the
Property Trustee and the Guarantee Trustee.
Each preliminary prospectus and the preliminary prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations, and any
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act Regulations")
and, when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the date hereof, at the
time the Prospectus was issued and at Closing Time and at each Date of Delivery,
if any, did not and will not 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.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(IV) Financial Statements. The financial statements incorporated by
reference in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly, in all material respects, the
financial position of the Company and its consolidated
4
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein. The selected
financial data included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements incorporated by reference in the Registration Statement.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the 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 (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise and (C) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class
of its capital stock, except for dividends paid by the Company in the ordinary
course of business consistent with past practice.
(vi) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Vermont and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; and the Company is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and
is validly existing as a corporation or national banking association in good
standing under the laws of the jurisdiction in which it is chartered or
organized, has full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except for such jurisdictions where the failure to be so qualified would not
result in a Material Adverse Effect; all of the issued and outstanding capital
stock of each such subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of the outstanding shares of capital
stock of any such subsidiary was issued in violation of the preemptive or
similar rights of
5
any securityholder of that subsidiary. The Company has no subsidiaries which,
individually or in the aggregate, when considered as a single subsidiary, would
constitute a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X,
other than ▇▇▇▇▇▇▇▇▇▇ Trust Company[, The Bank of Western Massachusetts and
Flagship Bank and Trust Company].
(viii) FDI Act. Each Subsidiary is an insured depositary under the
provisions of the Federal Deposit Insurance Act, as amended (the "FDI Act").
(ix) Existence of Trust. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act, is and
will be treated as a "grantor trust" for federal income tax purposes under
existing law, has the business trust power and authority to conduct its business
as presently conducted and as described in the Prospectus and is not required to
be authorized to do business in any other jurisdiction; the Trust does not have
any consolidated or unconsolidated subsidiaries; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to GAAP.
(x) Common Securities. The Common Securities have been duly authorized
by the Trust Agreement and, when issued and delivered by the Trust to the
Company in accordance with the terms of the Trust Agreement and against payment
therefor as described in the Prospectus, will be validly issued and (subject to
the terms of the Trust Agreement) fully paid undivided beneficial interests in
the assets of the Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights; no holder thereof will be subject to
personal liability by reason of being such a holder; 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.
(xi) Authorization of Trust Agreement. The Trust Agreement has been
duly authorized by the Company and duly qualified under the 1939 Act and, when
validly executed and delivered by the Company and the Administrative Trustees,
and assuming the due authorization, execution and delivery of the Trust
Agreement by the Delaware Trustee and the Property Trustee, the Trust Agreement
will constitute a valid and binding agreement of the Company and the Trustees,
enforceable against the Company and the Trustees in accordance with its terms,
(A) except as enforcement thereof may be limited by (i) bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and (ii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution and (B)
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(xii) Administrative Trustees. Each of the Administrative Trustees is
an officer or employee of the Company and has been duly authorized by the
Company to execute and deliver the Trust Agreement.
(xiii) Guarantee Agreement. The Guarantee Agreement has been duly
authorized by the Company and duly qualified under the 1939 Act and, when
validly executed and delivered by the Company, and assuming due authorization,
execution and delivery of the Guarantee Agreement by the Guarantee Trustee, will
constitute a valid and binding agreement of
6
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiv) Capital Securities. The Capital Securities have been duly
authorized by the Trust Agreement and, when authenticated in the manner provided
for in the Trust Agreement and issued and delivered pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued
and (subject to the terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; the issuance of the
Capital Securities is not subject to preemptive or other similar rights; and
holders of Capital Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
incorporated under the General Corporation Law of the State of Delaware.
Pursuant to the Trust Agreement, however, Capital Security holders may be
obligated (A) to provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or exchanges of Capital
Security certificates and the issuance of replacement Capital Security
certificates and (B) 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.
(xv) Authorization of Indenture. The Indenture has been duly authorized
by the Company and duly qualified under the 1939 Act and, when duly executed and
delivered by the Company and assuming the due authorization, execution and
delivery of the Indenture by the Debenture Trustee, will constitute a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(xvi) Authorization of Debentures. The Debentures have been duly
authorized by the Company, and when executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and paid for as
provided in this Agreement, the Debentures will constitute 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
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(xvii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Trust.
(xviii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus in the column entitled
"Actual" under the caption
7
"Capitalization" (except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). The shares of issued and
outstanding capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(xix) Absence of Defaults and Conflicts. Neither the Company, its
subsidiaries nor the Trust is in violation of its charter or by-laws or other
organizational documents or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company, any subsidiary of the
Company or the Trust is a party or by which any of them may be bound, or to
which any of the property or assets of the Company, any subsidiary of the
Company or the Trust is subject, except for such defaults that would not result
in a Material Adverse Effect; and the execution and delivery by the Company and
the Trust of, and the performance by the Company and the Trust of their
obligations under, this Agreement, the execution and delivery by the Company of,
and the performance by the Company of its obligations under, the Trust
Agreement, the Guarantee Agreement, the Indenture and the Debentures, the
issuance and delivery by the Trust of the Common Securities and Capital
Securities and the consummation of the sale of the Capital Securities and the
fulfillment of the terms herein contemplated do not and will not, whether with
or without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust, loan
agreement, guarantee, lease, financing agreement or other similar agreement or
instrument to which the Company or any of its subsidiaries (including the Trust)
is a party or by which the Company or any of its subsidiaries (including the
Trust) is bound or to which any of the property or assets of the Company or any
of its subsidiaries (including the Trust) is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of the
Company or any subsidiary or of the Certificate of Trust or Trust Agreement of
the Trust, nor will such actions result in any violation (in each case material
to the Company and its subsidiaries (including the Trust) considered as a whole
or as to the Trust separately) of any statute or any order, rule or regulation
of any court or regulatory authority or other governmental body having
jurisdiction over the Trust or the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for, and the
absence of which would materially affect, the performance by the Company and the
Trust of their obligations under this Agreement and the issuance and delivery of
the Capital Securities, except such approvals as will be obtained under the 1933
Act, the 1934 Act or the 1939 Act and as may be required by the securities or
Blue Sky laws of the various states in connection with the sale of the Capital
Securities. As used herein, a "Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by
the Company or any subsidiary.
8
(xx) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any subsidiary of the Company exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xxi) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or regulatory or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company or the Trust, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets of the
Company and its subsidiaries taken as a whole or the consummation of the
transactions contemplated in this Agreement or the performance by the Company or
the Trust of its obligations hereunder; the aggregate of all pending legal or
regulatory or governmental proceedings to which the Company or any subsidiary of
the Company is a party or of which any of their respective property or assets is
the subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xxii) Possession of Insurance. The Company and its subsidiaries carry
or are entitled to the benefits of insurance in such amounts and covering such
risks as is generally deemed adequate for its business and consistent with
insurance coverage maintained by companies of similar size and scope of
operations in similar businesses, and all such insurance is in full force and
effect.
(xxiii) Possession of Intellectual Property. The Company and its
subsidiaries own or possess or can acquire on reasonable terms, the patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names
(collectively, "patent and proprietary rights") presently employed by them in
connection with the business now operated by them as described in the
Prospectus, except where lack thereof would not result in a Material Adverse
Effect, and the Company and its subsidiaries have not received any notice or are
not otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any patent or proprietary rights or of any facts or
circumstances which would render any patent and proprietary rights invalid or
inadequate to protect the interest of the Company and its subsidiaries therein,
and which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in any Material Adverse Effect.
(xxiv) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except for such Governmental Licenses
the absence of which would not cause a Material Adverse Effect; the Company and
its subsidiaries are in compliance with the terms and conditions of all such
9
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xxv) Manipulation. The Company and its subsidiaries have not taken and
will not take, directly or indirectly, any action designed to or which
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Securities.
(xxvi) Investment Company Act. Neither the Company nor the Trust is,
and upon the issuance and sale of the Capital Securities as herein contemplated
and the application of the net proceeds therefrom as described in the Prospectus
neither will 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 "1940 Act").
(xxvii) Other Contracts. Other than such agreements, contracts and
other documents as are described in the Prospectus or otherwise filed as
Exhibits to the Company's annual report on Form 10-K, quarterly report on Form
10-Q or current reports on Form 8-K incorporated by reference in the Prospectus,
there are no agreements, contracts or documents of a character described in Item
601 of Regulation S-K of the Commission to which the Company or any of its
Subsidiaries is a party.
(xxviii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company or the Trust of its obligations
hereunder, in connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by this Agreement
or for the due execution, delivery or performance of the Indenture by the
Company, except such as have been already obtained or as may be required under
the 1933 Act or the 1933 Act Regulations or state securities laws and except for
the qualification of the Indenture under the 1939 Act.
(xxix) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries; and 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 or any
of its subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any notice of
any material claim of
10
any sort that has been asserted by anyone adverse to the rights of the Company
or any subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or
sublease.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or the Trust delivered to Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, respectively, to each Underwriter as to the matters covered thereby on
the date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing
(a) Initial Capital Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the purchase price of $25 per Capital Security, the number of
Initial Capital Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Capital Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, subject, in each case, to such adjustments among the
Underwriters as they in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(b) Option Capital Securities. In addition, on the basis of the
representations, warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the Trust hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional [ ]
Capital Securities (the "Option Capital Securities") at a price per Option
Capital Security equal to the price per Initial Capital Security plus
accumulated distributions, if any, from [ ], 200[ ] to the date of delivery and
payment. Such option will expire 30 days after the date of this Agreement and
may be exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Initial Capital Securities upon notice by ▇▇▇▇▇▇ Brothers to
the Trust and the Company setting forth the number of Option Capital Securities
as to which the several Underwriters are then exercising the option and the
time, date and place of payment and delivery for such Option Capital Securities.
Any such time and date of payment and delivery (each, a "Date of Delivery")
shall be determined by ▇▇▇▇▇▇ Brothers, the Trust and the Company, but shall not
be later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, unless otherwise agreed upon by ▇▇▇▇▇▇
Brothers, the Trust and the Company. If the option is exercised as to all or any
portion of the Option Capital Securities, each of the Underwriters, severally
and not jointly, will purchase that proportion of the total number of Option
Capital Securities then being purchased which the number of Initial Capital
Securities each such Underwriter has severally agreed to purchase bears to the
total number of Initial Capital Securities, subject to such adjustments as
▇▇▇▇▇▇ Brothers in its discretion shall make to eliminate any sales or purchases
of a fractional number of Option Capital Securities.
11
(c) Payment. As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Capital
Securities will be used to purchase the Debentures, the Company hereby agrees to
pay at the Closing Time and at each Date of Delivery to the Underwriters a
commission of $[ ] per Capital Security. Payment of the purchase price for, and
delivery of certificates for, the Initial Capital Securities shall be made at
the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the Underwriters,
the Company and the Trust, at 9:00 A.M. (Eastern time) on the third (fourth, if
the pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Underwriters, the Company and the Trust (such
time and date of payment and delivery being herein called "Closing Time"). In
addition, in the event that the Underwriters have exercised their option to
purchase any or all of the Option Capital Securities, payment of the purchase
price for, and delivery of such Option Capital Securities, shall be made at the
above-mentioned offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, or at such other
place as shall be agreed upon by the Underwriters, the Trust and the Company, on
the relevant Date of Delivery as specified in the notice from ▇▇▇▇▇▇ Brothers to
the Trust and the Company.
Payment shall be made to the Trust by wire transfer of immediately
available funds to the order of the Trust, against delivery to the Underwriters
of certificates for the Capital Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representative, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for the Capital Securities which it has agreed to purchase. ▇▇▇▇▇▇
Brothers, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Capital
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
At Closing Time, or the Date of Delivery, as the case may be, the Company
will pay, or cause to be paid, the commission payable at such time under this
Section 2 to ▇▇▇▇▇▇ Brothers on behalf of the Underwriters by wire transfer of
immediately available funds.
(d) Denominations; Registration. Certificates for the Capital Securities
shall be in such denominations and registered in such names as the
Representative may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Capital Securities will be made available for examination
and packaging by the Representative in The City of New York not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Trust. The Company and the
Trust jointly and severally covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company and the Trust, subject to Section 3(b), will comply with the
requirements of Rule 424, Rule 430A or Rule 434, as applicable, and will notify
the Underwriters immediately, and
12
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall 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 by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
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, any prospectus, or of the suspension of the qualification of the
Capital Securities for offering or sale in any jurisdiction or of the initiation
or threatening of any proceedings for any of such purposes. The Company and the
Trust will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company and the Trust will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company and the Trust will give the
Representative notice of their intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term Sheet
or any amendment, supplement or revision to either any prospectus included in
the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representative with copies of any such documents to, and consult with, the
Representative and its counsel within a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which the Representative or counsel for the Representative shall
object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representative and counsel for the Representative, without
charge, as many signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and, upon request, documents incorporated or
deemed to be incorporated by reference therein) as it may reasonably request,
and will also deliver to the Representative, without charge, a conformed copy of
the Registration Statement as originally filed and of each amendment thereto
(without exhibits). The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectus. The Company has delivered to each Underwriter,
without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company will deliver to
each Underwriter, without charge, as many copies of the Prospectus as such
Underwriter reasonably requests, and the Company and the Trust hereby consent to
the use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
13
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the Trust
will comply 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 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 Capital Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters and for the Company or the Trust, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements 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 opinion of 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 and the Trust will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company and the Trust will each use its
best efforts, in cooperation with the Underwriters, to qualify the Capital
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Underwriters may
designate and to maintain such qualifications in effect for as long as may be
required to complete the distribution of Capital Securities contemplated hereby;
provided, however, that neither the Company nor the Trust shall 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. In each jurisdiction
in which the Capital Securities have been so qualified, the Company and the
Trust will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for as long as may be
required to complete the distribution of the Capital Securities contemplated
hereby. The Company and the Trust will also supply the Underwriters with such
information as is necessary for the determination of the legality of the Capital
Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) DTC. The Trust and the Company will cooperate with the Underwriters and
use their best efforts to permit the Capital Securities to be eligible for
clearance and settlement through the facilities of The Depository Trust Company.
14
(i) Use of Proceeds. The Trust and the Company will use the proceeds
referred to in the Prospectus under "Use of Proceeds" in the manner described
therein.
(j) Restriction on Sale of Securities. During a period of 30 days from the
date of the Prospectus, neither the Company nor the Trust will, without the
prior written consent of ▇▇▇▇▇▇ Brothers, directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any Capital Securities or Debentures (or any
equity or debt securities substantially similar to the Capital Securities or
Debentures, respectively). The foregoing sentence shall not apply to the Capital
Securities or Debentures to be sold hereunder.
(k) Listing. The Company will use its best efforts to effect the listing of
the Securities on the New York Stock Exchange.
(l) Reporting Requirements. The Company and the Trust, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance
of its and the Trust's obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Capital Securities, (iii) the preparation, issuance and delivery of the
certificates for the Capital Securities to the Underwriters, including any stock
or other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Capital Securities to the Underwriters, (iv) the
fees and disbursements of the Company's and the Trust's counsel, accountants and
other advisors, (v) the qualification of the Capital Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, if any, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and the
Prospectus and any amendments or supplements thereto, (vii) the printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any supplement
thereto, if any, (viii) the fees and expenses of any transfer agent or registrar
for the Capital Securities, (ix) the fees and expenses of the Debenture Trustee,
including the fees and disbursements of counsel for the Debenture Trustee in
connection with the Indenture and the Debentures, (x) the reasonable fees and
expenses of the Delaware Trustee, the Property Trustee and the Guarantee
Trustee, including the fees and disbursements of counsel for the Delaware
Trustee, the Property Trustee and the Guarantee Trustee, (xi) any fees payable
in connection with the rating of the Capital Securities and the Debentures,
(xii) the cost and charges associated with the approval of the Capital
Securities by The Depository Trust Company for "book-entry" transfer and (xiii)
the fees and
15
expenses incurred in connection with the listing of the Capital Securities and,
if applicable, the Debentures on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Trust contained in Section
1 hereof or in certificates of any officer of the Company or any Trustee
delivered pursuant to the provisions hereof, to the performance by the Company
and the Trust of their respective covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus 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) or, if the Company has elected to rely upon Rule 434, a Term
Sheet shall have been filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representative
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇
Procter LLP, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters substantially to the effect set forth
in Exhibit A hereto and to such further effect as counsel to the Underwriters
may reasonably request. 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 and its subsidiaries and
certificates of public officials.
(c) Opinion of Special Tax Counsel for the Trust and the Company. At
Closing Time, the Company, the Trust and the Representative shall have received
an opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, special tax
counsel to the Trust and the Company, that (i) the Debt Securities will be
classified for United States federal income tax purposes as indebtedness of the
Company, (ii) the Trust will be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation
and (iii) although the discussion set forth in the Prospectus under the heading
"United States Federal Income Tax Consequences" does not purport to discuss all
possible United States federal income tax consequences of the purchase,
ownership and disposition of the Capital Securities and the Debentures, such
discussion constitutes, in all material respects, a fair and accurate summary of
the United States federal income tax consequences of the purchase, ownership and
disposition of the Capital Securities and the Debentures under current law. Such
counsel may also state that,
16
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) Opinion of Special Delaware Counsel for the Trust. At Closing Time, the
Representative shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to
the Trust, together with signed or reproduced copies of such letter for each of
the Underwriters to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(e) Opinion of Counsel for The Bank of New York. At Closing Time, the
Representative shall have received an opinion, dated as of Closing Time, of
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to The Bank of New York, as Property
Trustee and Debenture Trustee, and an opinion, dated as of Closing Time, of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Finger, P.A., counsel to The Bank of New York (Delaware), as
Delaware Trustee and Guarantee Trustee, in form and substance satisfactory to
the Underwriters.
(f) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the validity of the Capital Securities, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Underwriters. 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 and
its subsidiaries and certificates of public officials.
(g) Officers' Certificates. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, (A) any material adverse change in the condition,
financial or otherwise, or in the 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, and the
Representative shall have received a certificate of the Chairman, the President,
a Vice Chairman or a Vice President of the Company and of the chief financial or
chief accounting officer or the Treasurer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) insofar as they relate to the Company, the representations and warranties
in Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time (except for representations or
warranties which by their terms speak as of a different date or dates), (iii)
the Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are, to the best of the Company's knowledge,
threatened by the Commission; or (B) any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Trust, and the Representative shall have received a certificate of an
Administrative Trustee of
17
the Trust, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) insofar as they relate to the Trust, the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time
(except for representations or warranties which by their terms speak as of a
different date or dates), (iii) the Trust has complied in all material respects
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are, to the best of the
Trust's knowledge, threatened by the Commission.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a
letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
each of the Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(i) Bring-down Comfort Letter. At Closing Time, the Representative shall
have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (h) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(j) Maintenance of Rating. At Closing Time and any relevant Date of
Delivery, the Capital Securities shall be rated at least [ ] by ▇▇▇▇▇'▇
Investors Service, Inc. and [ ] by Standard & Poor's Ratings Group, a division
of ▇▇▇▇▇▇-▇▇▇▇, Inc., and the Company shall have delivered to the Underwriters a
letter dated the Closing Time, from each such rating agency, or other evidence
satisfactory to the Representative, confirming that the Capital Securities have
such ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Capital Securities or any
of the Company's debt or preferred securities by any "nationally recognized
statistical rating agency," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall
have publicly announced that it has under surveillance or review its rating of
the Securities or any of the Company's debt or preferred securities.
(k) Over-allotment Option. In the event that the Underwriters exercise
their option to purchase all or any portion of the Option Capital Securities,
the representations and warranties of the Trust and the Company contained herein
and the statements in any certificates furnished by the Trust or the Company or
any of its subsidiaries hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, the Representative shall have
received:
(i) A certificate, dated such Date of Delivery, of the Chairman, the
President, a Vice Chairman or a Vice President of the Company and of the chief
financial officer or chief accounting officer of the Company and of an
Administrative Trustee of the Trust, confirming that the certificates delivered
at the Closing Time pursuant to Section 5(g) hereof remain true and correct as
of such Date of Delivery.
18
(ii) The opinions of (i) ▇▇▇▇▇▇▇ Procter LLP, counsel for the Company
and (ii) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel to the Trust, each in form and
substance reasonably satisfactory to the Representative, dated such Date of
Delivery, relating to the Option Capital Securities and otherwise to the same
effect as the opinions required by Sections 5(b) and 5(d) hereof.
(iii) The opinion of ▇▇▇▇▇▇▇ Procter LLP, special tax counsel to the
Trust and the Company, in form and substance reasonably satisfactory to the
Representative, dated such Date of Delivery, relating to the Option Capital
Securities and otherwise to the same effect as the opinions required by Section
5(c) hereof.
(iv) The opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Capital
Securities and otherwise to the same effect as the opinion required by Section
5(f) hereof.
(v) A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in form and substance reasonably
satisfactory to the Representative and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Underwriters pursuant to Section 5(h) hereof, except that the "specified date"
on the letter furnished pursuant to this paragraph shall be a date not more than
three business days prior to such Date of Delivery.
(l) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Capital Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and Trust in connection with the issuance and sale of the
Capital Securities as herein contemplated shall be satisfactory in form and
substance to the Representative and counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement (or, with respect to the Underwriters' exercise of their
over-allotment option for the purchase of Option Capital Securities on a Date of
Delivery after Closing Time, the obligations of the Underwriters to purchase
Option Capital Securities on such Date of Delivery) may be terminated by the
Representative by notice to the Company at any time at or prior to Closing Time
(or such Date of Delivery, as applicable), and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
(n) Approval of Listing. At the Closing Time, the Capital Securities shall
have been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. Each of the Company and the Trust
jointly and severally agrees to indemnify and hold harmless each Underwriter and
each person, if any, who
19
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇ Brothers), reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇ Brothers expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Trust by Company. The Company agrees to indemnify
the Trust against all loss, liability, claim, damage and expense whatsoever as
due from the Trust under Section 6(a) hereunder.
(c) Indemnification of Trust, Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company and the
Trust, the Company's directors, each of the Company's officers and the Trustee
of the Trust who signed the Registration Statement, and each person, if any, who
controls the Company and the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged
20
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through ▇▇▇▇▇▇
Brothers expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus, if any, or the Prospectus (or any
amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇ Brothers, and, in
the case of parties indemnified pursuant to Section 6(c) above, counsel to the
indemnified parties shall be selected by the Company, in each case reasonably
acceptable to the indemnifying party. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein; then each indemnifying party
21
shall contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Trust on the one hand and the Underwriters on the other hand
from the offering of the Capital Securities pursuant to this Agreement or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Trust on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions, which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Trust on the one hand
and the Underwriters on the other hand in connection with the offering of the
Capital Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company and the Trust on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Trust and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
22
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company and the Trustee of the
Trust who signed the Registration Statement, and each person, if any, who
controls the Company or the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Initial Capital
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or the Trustees of the Trust or any of
its other subsidiaries submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Capital Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this Agreement,
by notice to the Company and the Trust, at any time at or prior to Closing Time
or any relevant Date of Delivery (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the 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, (ii) if
there has occurred any material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis (including, without limitation, an act of terrorism) or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative,
impracticable or inadvisable to market the Capital Securities or to enforce
contracts for the sale of the Capital Securities, (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States or (iv) if a
banking moratorium has been declared by either Federal, New York or Vermont
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
23
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or the relevant Date of Delivery, as
the case may be, to purchase the Capital Securities which it or they are
obligated to purchase under this Agreement (the "Defaulted Securities"), the
Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number
of Capital Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Capital Securities to be purchased on such date, this Agreement (or, with
respect to the Underwriters' exercise of the over-allotment option for the
purchase of Option Capital Securities on a Date of Delivery after Closing Time,
the obligations of the Underwriters to purchase, and the Trust to sell, such
Option Capital Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a termination
of this Agreement or (ii) in the case of a Date of Delivery after the Closing
Time, a termination of the obligations of the Underwriters and the Trust with
respect to the related Option Capital Securities, as the case may be, either the
Representative or the Company shall have the right to postpone Closing Time or
the relevant Date of Delivery, as the case may be, for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Representative shall be directed to ▇▇▇▇▇▇ Brothers at ▇▇▇▇▇▇ Brothers Inc., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Fixed Income Syndicate
(with a copy to the General Counsel); notices to the Trust shall be directed to
it at The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 21 West, New York, New
York 10286, attention of Corporate Trust Administration; and notices to the
Company shall be directed to it at ▇▇▇▇▇▇▇▇▇▇ Corporation, Two ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of F. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice
President, General Counsel and Corporate Secretary.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and the Trust and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or
24
corporation, other than the Underwriters, the Company and the Trust and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and the Trust and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
25
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters, the Company and the Trust in accordance with
its terms.
Very truly yours,
▇▇▇▇▇▇▇▇▇▇ CORPORATION
By:
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman, President and
Chief Executive Officer
▇▇▇▇▇▇▇▇▇▇ CAPITAL TRUST [ ]
By: ▇▇▇▇▇▇▇▇▇▇ CORPORATION, as Sponsor
By:
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman, President and
Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: ▇▇▇▇▇▇ BROTHERS INC.
By:
---------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in
Schedule A hereto.
26
SCHEDULE A
Number of
Initial
Capital
Underwriter Securities
----------
▇▇▇▇▇▇ Brothers Inc. ........................................... [ ]
[Other underwriters]
Total......................................... [ ]
==========
Sch. A-1
Exhibit A
Form of opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel
for the Company and the Trust, substantially to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Vermont.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended.
(v) The authorized capital stock of the Company is as set forth in the
Prospectus in the column entitled "Actual" under the caption "Capitalization";
the shares of issued and outstanding capital stock of the Company are fully paid
and non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(vi) Each Subsidiary has been duly incorporated and is validly existing
as a corporation or a national banking association in good standing under the
laws of the jurisdiction in which it is chartered or organized, has full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to be so qualified would not result in a
Material Adverse Effect; all of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and none of the outstanding shares of capital stock of any such
subsidiary was issued in violation of the preemptive or similar rights of any
securityholder of that subsidiary. The Company has no subsidiaries which,
individually or in the aggregate, when considered as a single subsidiary, would
constitute a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X,
other than ▇▇▇▇▇▇▇▇▇▇ Trust Company[, The Bank of Western Massachusetts and
Flagship Bank and Trust Company].
(vii) Each Subsidiary is an insured depositary under the provisions of
the Federal Deposit Insurance Act, as amended.
A-1
(viii) The Underwriting Agreement has been duly authorized by the
Company and has been duly executed and delivered by each of the Company and the
Trust.
(ix) The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery of the
Indenture by The Bank of New York, constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(x) The Debentures are in the form contemplated by the Indenture, have
been duly authorized, executed and delivered by the Company and, when the
Debentures have been duly authenticated by the Debenture Trustee in accordance
with the provisions of the Indenture, the Debentures will constitute 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
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(xi) The Trust Agreement has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery of the Trust Agreement by The Bank of New York and The Bank of New York
(Delaware), the Trust Agreement constitutes a valid and binding agreement of the
Company and is enforceable against the Company and the Administrative Trustees
in accordance with its terms, except as enforcement thereof may be limited by
(i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws relating
to or affecting the rights and remedies of creditors generally, (ii) principles
of equity, including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law) and (iii)
the effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(xii) The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery of the Guarantee Agreement by the Bank of New York, the Guarantee
Agreement constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(xiii) The Indenture, the Guarantee Agreement and the Trust Agreement
have each been duly qualified under the 1939 Act.
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(xiv) The Trust Agreement, the Indenture, the Guarantee Agreement, the
Capital Securities, Securities Guarantee and the Debentures conform as to legal
matters in all material respects to the descriptions thereof contained in the
Prospectus.
(xv) The holders of outstanding shares of capital stock of the Company
are not entitled to any preemptive rights under the Articles of Incorporation or
By-laws of the Company or the laws of the State of Vermont to subscribe for the
Capital Securities or the Debentures.
(xvi) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which such counsel need express no opinion), when they
were filed with the Commission complied as to form in all material respects with
the requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
(xvii) The statements made (1) in the prospectus supplement under the
captions "Certain Terms of the Capital Securities," "Certain Terms of the Junior
Subordinated Debentures," and "Relationship among the Capital Securities, the
Junior Subordinated Debentures and the Guarantee" and in the base prospectus
under the captions "Description of Capital Securities," "Description of
Guarantee," "Description of Junior Subordinated Debt" and "Relationship among
the Capital Securities, the Corresponding Junior Subordinated Debt Securities
and the Guarantees," (2) in the Registration Statement under Item 15 and (3) in
the Company's Annual Report on Form 10-K for the year ended December 31, 200[ ]
under the caption "Item 1. Business - Supervision and Regulation," insofar as
such statements purport to summarize certain provisions of the Capital
Securities, the Common Securities, the Debentures, the Securities Guarantee, the
Indenture, the Trust Agreement, the Guarantee Agreement, the Articles of
Incorporation and By-laws of the Company or to the extent that they constitute
matters of law or legal conclusions, have been reviewed by such counsel and are
correct in all material respects.
(xviii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act and the
1933 Act Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which we need express
no opinion, and except for the qualification of the Trust Agreement, the
Indenture and the Guarantee Agreement under the 1939 Act) is necessary or
required in connection with the due authorization, execution and delivery of the
Underwriting Agreement or the due execution, delivery or performance of the
Indenture by the Company or for the offering, issuance, sale or delivery of the
Securities.
(xix) The execution, delivery and performance of the Underwriting
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Underwriting Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds") and compliance by the Company and the Trust with
their obligations under the Underwriting Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement, the Debentures and the Capital Securities do
not and will not, whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default or Repayment Event
(as defined in Section 1(a)(xix) of the Underwriting
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Agreement) under or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, any subsidiary or the
Trust pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument, known to us,
to which the Company, any subsidiary or the Trust is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company, any subsidiary or the Trust is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have a
Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any subsidiary or of the
Certificate of Trust, Trust Agreement or other organizational documents of the
Trust, or any applicable law, statute, rule, regulation, judgment, order, writ
or decree, known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company, any subsidiary of the
Company, the Trust or any of their respective properties, assets or operations.
(xx) Neither the Company nor the Trust is, and upon the issuance and
sale of the Capital Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus neither will be, required
to be registered under the Investment Company Act of 1940, as amended.
(xxi) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of such counsel, threatened, against
or affecting the Company or any of its subsidiaries, of a character required to
be disclosed in the Registration Statement which is not adequately disclosed in
the Prospectus or which could reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Underwriting Agreement or the performance by
the Company of its obligations thereunder.
(xxii) There is no franchise, contract or other document, known to such
counsel, of a character required to be described in the Registration Statement
or Prospectus, or to be filed as an exhibit, which is not described or filed as
required.
(xxiii) The Registration Statement was declared effective under the
1933 Act on [ ], 200[ ]; any required filing of the Prospectus pursuant to Rule
424(b); under the 1933 Act has been made in the manner and within the time
period required by Rule 424(b); and, such counsel has been orally advised by the
Commission that no stop order suspending the effectiveness of the Registration
Statement has been issued by the Commission and, no proceeding for that purpose
is pending or, to such counsel's knowledge, threatened by the Commission.
(xxiv) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(xxv) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, complied as to form in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations, except that in each
case such counsel need not express an opinion as to the financial statements,
notes to financial statements, financial tables, other financial data and
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supporting schedules included therein or excluded therefrom or the exhibits to
the Registration Statement.
Such counsel shall also have furnished to the Representative a written statement
addressed to the Underwriters and dated as of the Closing Time, to the effect
that (x) such counsel has acted as counsel to the Company in connection with the
preparation of the Registration Statement, the Prospectus and the documents
incorporated by reference therein, and in the course of preparation of those
documents such counsel has participated in conferences with representatives of
the Company and with representatives of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and (y) based upon
such counsel's examination of the Registration Statement, the Prospectus and the
documents incorporated by reference therein, such counsel's investigations made
in connection with the preparation of the Registration Statement, the Prospectus
and the documents incorporated by reference therein and such counsel's
participation in the conferences referred to above, nothing has come to the
attention of such counsel that would lead it to believe that the Registration
Statement or any amendment thereto, including the Rule 430A Information and Rule
434 Information (if applicable), (except for financial statements, notes to
financial statements, financial tables, other financial data and supporting
schedules included or incorporated by reference therein or omitted therefrom and
the Forms T-1, as to which such counsel need make no statement), at the time
such Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements, notes to financial statements, financial tables, other
financial data and supporting schedules included or incorporated by reference
therein or omitted therefrom and the Forms T-1, as to which such counsel need
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented 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 the light
of the circumstances under which they were made, not misleading. Such opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
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Exhibit B
Form of opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
P.A., special Delaware counsel for the Trust, substantially to the effect that:
(i) The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Act. All filings required under
the laws of the State of Delaware with respect to the formation and valid
existence of the Trust as a business trust have been made. Under the Trust
Agreement and the Delaware Act, the Trust has the requisite business trust power
and authority to conduct its business as described in the Prospectus.
(ii) The Trust Agreement constitutes a legal, valid and binding
obligation of the Company and each of the Trustees, and is enforceable against
the Company and each of the Trustees in accordance with its terms, except to the
extent that enforcement of the Trust Agreement may be limited by (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
(iii) The Capital Securities have been duly authorized for issuance in
accordance with the Trust Agreement and, when issued, executed, authenticated,
delivered and paid for in accordance with the Trust Agreement and the
Underwriting Agreement, will be validly issued, fully paid and, subject to the
qualifications set forth in paragraph (iv) below, non-assessable undivided
beneficial interests in the assets of the Trust, will not be subject to
preemptive or other similar rights under the Trust Agreement or the Delaware Act
and will entitle the holders of the Capital Securities to the benefits of the
Trust Agreement except to the extent that enforcement of the Trust Agreement may
be limited by (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and other similar
laws relating to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
(iv) Under the Trust Agreement and the Delaware Act, each holder of the
Capital Securities of the Trust, in such capacity, will be entitled to the same
limitation on personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware; provided, however, we express no opinion with respect to the
liability of any holder of Capital Securities who is, was or may become a named
trustee of the Trust. We note that the holders of Capital Securities may be
obligated, pursuant to the Trust Agreement, (A) to provide indemnity and/or
security in connection with and pay taxes or government charges arising from
transfers or exchanges of Capital Security certificates and the issuance of
replacement Capital Security certificates, and (B) to provide security or
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indemnity in connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
(v) The Common Securities have been duly authorized for issuance in
accordance with the Trust Agreement and, when issued, executed, delivered and
paid for in accordance with the Trust Agreement will be validly issued and fully
paid and, subject to the qualifications set forth in paragraph (vi) below,
non-assessable undivided beneficial interests in the assets of the Trust, will
not be subject to preemptive or other similar rights under the Trust Agreement
or the Delaware Act and will entitle the holders of the Common Securities to the
benefits of the Trust Agreement except to the extent that enforcement of the
Trust Agreement may be limited by (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or transfer and
other similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(vi) Under the Trust Agreement and the Delaware Act, each holder of
Common Securities of the Trust, in such capacity, will be entitled to the same
limitation on personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware; provided, however, we express no opinion with respect to the
liability of any holder of Common Securities who is, was or may become a named
trustee of the Trust. Notwithstanding the foregoing, we note that, pursuant to
the Trust Agreement, holders of Common Securities may be obligated to make
payments or provide indemnity or security under the circumstances set forth
therein.
(vii) Under the Trust Agreement and the Delaware Act, the Trust has the
requisite trust power and authority to execute and deliver the Underwriting
Agreement and to perform its obligations under the Underwriting Agreement and to
consummate the transactions contemplated thereby. Under the Trust Agreement and
the Delaware Act, the execution and delivery by the Trust of the Underwriting
Agreement, and the performance of its obligations thereunder, have been duly
authorized by all requisite trust action on the part of the Trust.
(viii) Such counsel has reviewed the statements made in the base
prospectus under the captions "The ▇▇▇▇▇▇▇▇▇▇ Capital Trusts" and "Description
of Capital Securities" and in the prospectus supplement under the captions
"▇▇▇▇▇▇▇▇▇▇ Capital Trust [ ]" and `Certain Terms of the Capital Securities"
and, insofar as they contain statements of Delaware law, such statements are
fairly presented.
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