4,000,000
Preferred Securities
MBNK Capital Trust I
UNDERWRITING AGREEMENT
November __, 1999
Wheat First Securities,
a division of First Union Capital Markets Corp.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
as Representatives of the Several Underwriters
c/o Wheat First Securities,
a division of First Union Capital Markets Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
MBNK Capital Trust I (the "Trust"), a statutory business trust created
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. (Sections 3801, ET SEQ.))
and Main Street Bancorp, Inc., a Pennsylvania corporation (the "Company" and
together with the Trust, the "Offerors"), confirm their agreement (the
"Agreement") with Wheat First Securities, a Division of First Union Capital
Markets Corp. ("Wheat First") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC ("▇▇▇▇▇▇"), 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 Wheat First and Janney are
acting as Representatives (in such capacity, Wheat First and Janney will be
referred to as the "Representatives"), with respect to the issue and sale by the
Trust and the purchase by the Underwriters, acting severally and not jointly, of
the respective number set forth in Schedule A of 4,000,000 ____% Preferred
Securities (liquidation amount of $10.00 per security) of the Trust (the
"Preferred Securities"). The Preferred Securities will be guaranteed by the
Company, to the extent described in the Prospectus, with respect to
distributions and payments upon liquidation, redemption and otherwise pursuant
to the Guarantee Agreement (the "Guarantee"), to be dated as of November __,
1999, between the Company and The Bank of New York, as Trustee (the "Guarantee
Trustee"). The Preferred Securities issued in book-entry form will be issued to
Cede & Co. as nominee of The Depository Trust Company ("DTC") pursuant to a
letter agreement, to be dated as
of the Closing Date (as defined herein) (the "DTC Agreement"), among the Trust,
the Property Trustee (as defined below) and DTC.
The entire proceeds from the sale of the Preferred Securities in the
Offering will be combined with the entire proceeds from the sale by the Trust to
the Company of its common securities (the "Common Securities") to purchase
$_______ aggregate principal amount of ____% Subordinated Debentures due
_______, 2029 (the "Subordinated Debentures") issued by the Company. The
Preferred Securities and the Common Securities will be issued pursuant to the
amended and restated trust agreement, to be dated as of November __, 1999 (the
"Trust Agreement"), among the Company, as depositor, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇ as administrators (the
"Administrators"), The Bank of New York, as property trustee (the "Property
Trustee"), and The Bank of New York (Delaware), as Delaware trustee (the
"Delaware Trustee," and, together with the Property Trustee, the "Trustees"),
and the holders, from time to time, of undivided beneficial interests in the
assets of the Trust. The Subordinated Debentures will be issued pursuant to an
indenture, to be dated as of November __, 1999 (the "Indenture"), between the
Company and The Bank of New York, as trustee (the "Debenture Trustee").
The Preferred Securities, the Guarantee and the Subordinated Debentures
are hereinafter collectively referred to as the "Securities."
The Indenture, the Trust Agreement, the Guarantee, the DTC Agreement,
and this Agreement are hereinafter referred to collectively as the "Operative
Documents."
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (File No. 333-_____)
containing a preliminary prospectus relating to the Offering under the
Securities Act of 1933, as amended (the "1933 Act"), and have filed such
amendments thereto and such amended preliminary prospectuses as may have been
required by the Commission on or prior to the date hereof and will file such
additional amendments to the registration statement and such amended
prospectuses relating to the Offering (pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), the 1933 Act, the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations") or
otherwise) as may hereafter be required by the Commission or pursuant to the
terms of this Agreement. Such registration statement, as amended, at the time
such registration statement becomes effective and, in the event any
post-effective amendment thereto becomes effective prior to the First Closing
Date (as hereinafter defined), at the time such post-effective amendment becomes
effective, and the prospectus relating to the Offering constituting a part
thereof (including, in the case of such registration statement, as amended, and
in the case of such prospectus, all financial statements, schedules and exhibits
thereto and the information, if any, deemed to be a part thereof pursuant to
Rule 430A(b) of the 1933 Act Regulations), as from time to time amended or
supplemented pursuant to the 1934 Act, the 1934 Act Regulations, the 1933 Act,
the 1933 Act Regulations or otherwise, are
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referred to herein as the "Registration Statement" and the "Prospectus,"
respectively, except that if any revised prospectus relating to the Offering
shall be provided to the Underwriters by the Offerors for use in the Offering
which differs from the prospectus relating to the Offering on file at the
Commission at the time of such use (whether or not such revised prospectus is
required to be filed by the Offerors pursuant to Rule 424(b) of the 1933 Act
Regulations), the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriters for such use. The
term "Preliminary Prospectus" means the preliminary prospectus dated November
__, 1999 distributed by the Underwriters prior to the date hereof.
The Offerors understand that the Underwriters propose to make the
Offering of the Securities as soon as the Representatives deems advisable after
the Registration Statement becomes effective and after the Trust Agreement, the
Indenture and the Guarantee have been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to
each Underwriter as of the date hereof and as of the Closing Date, and agree
with each Underwriter as follows:
(i) The Registration Statement and any Rule 462(b)
Registration Statement have been declared effective by the Commission
under the Securities Act. The Company has complied with the
Commission's satisfaction with all requests of the Commission for
additional and supplemental information. No stop order suspending the
effectiveness of the Registration Statement, or any other amendment
thereto and no cease and desist order or temporary order under Section
8A of the 1933 Act has been issued, and no proceeding for such purpose
has been instituted or is pending or threatened by the Commission. No
order preventing or suspending the use of any Prospectus or any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations and did 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, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
the "Underwriter Information" (as defined in Section 6(a) hereof)
relating to the Underwriters furnished in writing to the Company by or
on behalf of the Underwriters expressly for use therein.
(ii) At the time the Registration Statement and any amendment
thereto becomes effective, the Registration Statement and any amendment
thereto, and the Prospectus and any further amendment or supplement
thereto, will conform in
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all material respects to the requirements of the 1933 Act and the 1933
Act Regulations and will not, as of the effective date of each of the
Registration Statement, and any amendment thereto, and as of the
applicable filing date of the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
the Underwriter Information.
(iii) ▇▇▇▇▇ & Company, Inc., which has audited certain
financial statements of the Company, are independent public accountants
with respect to the Company and its subsidiaries, as required by the
1933 Act, the 1933 Regulations, the 1934 Regulations and Commission
Regulation S-X.
(iv) The consolidated financial statements, together with the
related schedules and notes, included in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its subsidiaries at the dates indicated and the
consolidated results of operations and cash flows of the Company and
its 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, except as disclosed in the notes to such financial
statements. The supporting schedules, if any, included in the
Registration Statement and the Prospectus present fairly, in all
material respects, the information required to be stated therein. The
summary financial data included in the Registration Statement and the
Prospectus present fairly, in all material respects, the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement
and the Prospectus.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby and, except for normal
recurring dividends on the capital stock of the Company, there has not
been (A) any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Trust, or the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business,
(B) any transaction entered into by the Trust, the Company or any
subsidiary, other than in the ordinary course of business, that is
material to the Trust, or the Company and its subsidiaries, considered
as one enterprise, or (C) any dividend or distribution of any kind
declared, paid or made by the Company on its capital stock.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania and has
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the corporate power and authority under such laws to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs
or business prospects of the Company and its subsidiaries, considered
as one enterprise.
(vii) Main Street Bank is a duly organized and validly
existing state-chartered bank under the laws of the Commonwealth of
Pennsylvania and continues to hold a valid certificate to do business
as such and has full power and authority to conduct its business as
such. Main Street Bank is referred to herein as the "Significant
Subsidiary." The Significant Subsidiary has the authority under its
jurisdiction of organization to own, lease and operate its properties
and to conduct its business and is duly authorized to transact business
and is in good standing in each jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make
such qualification necessary, except to the extent that the failure to
so qualify or to be in good standing would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(viii) The Company does not have any subsidiaries which are
material to its business, except to the extent that the Significant
Subsidiary may be deemed to be so material.
(ix) (a) The Company had at the date indicated a duly
authorized and outstanding capitalization as set forth in the
Registration Statement and the Prospectus, (b) all of the outstanding
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable, and (c) none of
the outstanding shares of capital stock of the Company was issued in
violation of the preemptive rights of any stockholder of the Company.
(x) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act with the power
and authority to own property and to conduct its business as described
in the Registration Statement and the Prospectus and to enter into and
perform its obligations under the Operative Documents, as applicable,
and the Preferred Securities; the Trust is not a party to or otherwise
bound by any material agreement other than those described in the
Registration Statement and the Prospectus; and based on an opinion of
counsel, the company believes the Trust is and will, under current law,
be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation.
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(xi) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Registration
Statement and the Prospectus, will be validly issued and will represent
undivided beneficial interests in the assets of the Trust; the issuance
of the Common Securities is not subject to preemptive or other similar
rights; and at the Closing Date, all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right.
(xii) As of the Closing Date, the Preferred Securities will
have been duly authorized by the Trust Agreement and, when issued and
delivered against payment therefor in accordance with the Trust
Agreement, as provided herein, will be validly issued and fully paid
and non-assessable undivided beneficial interests in the assets of the
Trust and will conform in all material respects to the description
thereof contained in the Prospectus and the issuance of the Preferred
Securities will not be subject to preemptive or other similar rights.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Offerors.
(xiv) The Trust Agreement has been duly authorized by the
Company and, at the Closing Date, will have been duly executed and
delivered by the Company and the Trustees, and assuming due
authorization, execution and delivery of the Trust Agreement by the
Trustees, the Trust Agreement will, at the Closing Date, be a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the receivership, conservatorship and
supervisory powers of bank regulatory agencies generally as well as to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally or by general principles of
equity (regardless of whether enforcement is considered in a proceeding
at law or in equity) and the availability of equitable remedies
(collectively, the "Enforceability Exceptions").
(xv) The Guarantee has been duly authorized by the Company
and, at the Closing Date, the Guarantee will have been duly executed
and delivered by the Company, and will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be
limited by the Enforceability Exceptions.
(xvi) The Indenture has been duly authorized by the Company
and, at the Closing Date, will have been duly executed and delivered by
the Company and will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that
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enforcement thereof may be limited by the Enforceability Exceptions,
and will have been duly qualified under the 1939 Act.
(xvii) The Subordinated Debentures have been duly authorized
by the Company and, at the Closing Date, will have been duly executed
by the Company and, when authenticated in the manner provided for in
the Indenture and delivered against payment therefor as described in
the Registration Statement and the Prospectus, will constitute valid
and binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as enforcement thereof may be
limited by the Enforceability Exceptions; and the Subordinated
Debentures will be in the form contemplated by, and entitled to the
benefits of, the Indenture and will conform in all material respects to
the description thereof in the Prospectus.
(xix) Each of the Administrators of the Trust is an officer of
the Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(xx) The Trust is not, and following consummation of the
transactions contemplated hereby will not be, an "investment company"
or a company "controlled" by an "investment company" which is required
to be registered under the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxi) The Operative Documents described in the Registration
Statement and the Prospectus conform in all material respects to the
summary descriptions thereof contained in the Registration Statement
and the Prospectus.
(xxii) None of the Trust, the Company nor the Significant
Subsidiary is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound or to
which any of its properties may be subject, except for such defaults
that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise; the execution and delivery of the Operative Documents by
the Trust or the Company, as the case may be, the issuance and delivery
of the Securities, the consummation by the Offerors of the transactions
contemplated in the Operative Documents, and compliance by the Offerors
with the terms of the Operative Documents to which they are a party
have been duly authorized by all necessary corporate action on the part
of the Company, and do not and will not result in any violation of the
charter or by-laws of the Company or of the Significant Subsidiary or
the Trust Agreement or the certificate of trust of the Trust filed with
the State of Delaware on September __, 1999 (the "Trust Certificate"),
and do not and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a
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default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Trust, the
Company or any of the Significant Subsidiary under (A) any indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Trust, the Company or the Significant Subsidiary is a
party or by which it may be bound or to which any of its properties may
be subject, except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs
or business prospects of the Trust, or the Company and its subsidiaries
considered as one enterprise or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Trust, the Company or the Significant Subsidiary or any of its
properties, except for such defaults that would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xxiii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, other than those that have been made
or obtained, is necessary or required for the performance by the
Company or the Trust of their obligations hereunder, in connection with
the issuance and sale of the Preferred Securities or the consummation
of the transactions contemplated by the Operative Documents, except
such as may be required by the securities as "Blue Sky" laws of the
various states in connection with the offer and sale of the Preferred
Securities.
(xxiv) Except as disclosed in the Registration Statement and
the Prospectus, there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign,
now pending or, to the knowledge of the Company or the Trust,
threatened against or affecting the Trust, or the Company or the
Significant Subsidiary that is required to be disclosed in the
Registration Statement and the Prospectus or that, in the final
outcome, could, in the judgment of the Company, result in any material
adverse effect on the condition (financial or otherwise), earnings or
business of the Trust, or the Company and its subsidiaries considered
as one enterprise, or that could materially and adversely affect the
properties or assets of the Trust, or the Company and its subsidiaries
considered as one enterprise, or that could adversely affect the
consummation of the transactions contemplated in the Operative
Documents; the aggregate liability or loss, if any, resulting from the
final outcome of all pending legal or governmental proceedings to which
the Trust, the Company or any of the Significant Subsidiaries is a
party or which affect any of its properties that are not described in
the Registration Statement and the Prospectus, including ordinary
routine litigation incidental to its business, would not have a
material adverse effect on the condition (financial or otherwise),
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earnings or business affairs of the Trust, or the Company and its
subsidiaries considered as one enterprise.
(xxv) There are no contracts or documents of a character
required to be described in the Registration Statement and the
Prospectus that are not described as required.
(xxvi) The Offerors and the Significant Subsidiary each owns
or possesses, or can acquire on reasonable terms, adequate patents,
patent licenses, trademarks, service marks and trade names necessary to
carry on their businesses as presently conducted, except where the
failure to own, procure or obtain any of the foregoing would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, and none of the Offerors
nor the Significant Subsidiary has received any notice of infringement
of or conflict with asserted rights of others with respect to any
patents, patent licenses, trademarks, service marks or trade names
that, in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), earnings or business of the Trust,
or the Company and its subsidiaries considered as one enterprise.
(xxvii) The Offerors and the Significant Subsidiary each owns,
possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and
neither the Offerors nor any of the Significant Subsidiary has received
any notice of proceedings relating to revocation or modification of any
such licenses, permits, certificates, consents, orders, approvals or
authorizations that, in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could materially adversely affect the
condition (financial or otherwise), earnings or business of the Trust,
or the Company and its subsidiaries considered as one enterprise.
(xxix) The Offerors and the Significant Subsidiary each has
good and marketable title to all properties and assets described in the
Registration Statement and the Prospectus as owned by it, free and
clear of all liens, charges, encumbrances or restrictions, except such
as (A) are described in the Registration Statement and the Prospectus
or (B) are neither material in amount nor materially significant in
relation to the business of the Trust, or the Company and its
subsidiaries considered as one enterprise; and all of the leases and
subleases material to the business of the Trust, and the Company and
its subsidiaries considered as one enterprise, and under which the
Offerors or the Significant Subsidiary holds properties described in
the Registration Statement and the Prospectus, are in full force and
effect, and neither the Offerors nor the Significant Subsidiary has any
notice of any material claim of any sort that has been asserted
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by anyone adverse to the rights of the Offerors or such Significant
Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of such corporation to the
continued possession of the leased or subleased premises under any such
lease or sublease.
(xxx) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Preferred Securities or the Common Stock.
(xxxi) None of the Trust, the Company, or any of their
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
("Affiliates"), or any person acting on its or any of their behalf
(other than the Underwriters, as to whom the Offerors make no
representation) has engaged or will engage, in connection with the
offering of the Preferred Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the 1933 Act.
(xxxii) There are no persons with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
▇▇▇▇ ▇▇▇.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or the Significant Subsidiary and delivered to
the Representatives or to counsel for the Underwriters shall be deemed only a
representation and warranty by the Trust or the Company, as the case may be, to
each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at a price of
$10.00 per Security, the number of Preferred Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional Preferred Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Deliveries of certificates for the Preferred Securities shall be
made at the office of Wheat First in Richmond, Virginia, and payment of the
purchase price for the Firm Preferred Securities shall be made by Wheat First,
on behalf of the several Underwriters, to the Trust by wire transfer of
immediately available funds contemporaneous with closing at such place as shall
be agreed upon by Wheat First and the Offerors, at 10:00 A.M. on November __,
1999 (unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after
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such date as shall be agreed upon by Wheat First and the Offerors (such time and
date of payment and delivery being herein called the "Closing Date").
(c) Payment for the Preferred Securities purchased by the Underwriters
shall be made to the Trust by wire transfer of immediately available funds,
against delivery for the respective accounts of the Underwriters of certificates
for the Firm Preferred Securities. Certificates for the Preferred Securities
shall be in such denominations and registered in such names as the Underwriters
may request in writing at least one business day before the Closing Date. It is
understood that each Underwriter has authorized the Representatives, for their
accounts, to accept delivery of, receipt for, and make payment of the purchase
price for, the Preferred Securities which it has agreed to purchase. Wheat First
and ▇▇▇▇▇▇, individually and not as Representatives of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Preferred Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Date, but such payment shall not relieve
such Underwriter from its obligations hereunder. The certificates representing
the Preferred Securities shall be made available for examination and packaging
by the Underwriters in Richmond, Virginia not later than 10:00 A.M. on the last
business day prior to the Closing Date.
(d) As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase Subordinated Debentures of the Company, the
Company hereby agrees to pay at the Closing Date, to the Representatives in
immediately available funds, for the accounts of the several Underwriters, $____
per Preferred Security to be delivered by the Trust hereunder at the Closing
Date, as the case may be.
(e) The Underwriters will comply with all material applicable laws and
rules in connection with the sale of the Securities and the Underwriters are not
acting as an agent for the Company.
SECTION 3. COVENANTS OF THE OFFERORS. The Offerors covenant with each
Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any post-effective amendments to the Registration Statement to be
declared effective by the Commission (as and when specified in the reasonable
request of the Representatives) and will prepare the Prospectus in a form
reasonably approved by the Representatives and file such Prospectus pursuant to
Rule 424(b) under the 1933 Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the 1933 Act. The Company will make no further amendment or any
supplement to the Registration Statement or the Prospectus prior to any First
Closing Date which shall be reasonably disapproved by the Representatives after
reasonable notice thereof. The Company will notify the Representatives
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immediately and confirm the notice in writing (i) when the Registration
Statement or any post-effective amendment thereto (and any other amendment
thereto) has been declared effective by the Commission, (ii) of the transmittal
to the Commission for filing of any amendment or supplement to the Prospectus,
(iii) of the receipt by the Company of any comments from the Commission or any
state securities commission with respect to the transactions contemplated by
this Agreement, (iv) of any request by the Commission or any state securities
commission for any amendment or supplement to the Registration Statement or the
Prospectus, or for additional information, (v) of the issuance by the
Commissioner or any state securities commission or court of competent
jurisdiction of any order suspending either the Offering or the use of either
the Preliminary Prospectus or the Prospectus or of the threat of any such action
by any such entity, (vi) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto or of the receipt by the Company of any notification with respect to the
suspension of the registration, qualification or exemption of the Preferred
Securities for offering or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose. In the event of the issuance of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such registration,
qualification or exemption, the Company promptly will use its best efforts to
obtain its withdrawal.
(b) The Company will give the Representatives notice of its intention
to file or prepare any amendment or supplement to the Registration Statement or
any amendment or supplement to the Prospectus (whether, in the case of the
Registration Statement and the Prospectus, by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise and, in the case of the Prospectus,
by amending or supplementing the Prospectus then being used by the
Underwriters).
(c) The Company has furnished or will deliver to the Representatives
and counsel for the Underwriters, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters.
(d) The Company will deliver to each Underwriter, without charge, from
time to time until the effective date of the Registration Statement, as many
copies of each Preliminary Prospectus as such Underwriter may reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter, without
charge, from time to time 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 for the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission thereunder.
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(e) If any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or 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 the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such 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) If, at the time that the Registration Statement or a post-effective
amendment thereto becomes effective, any information shall have been omitted
therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then
immediately following effectiveness, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus, or, if
required by such Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted and will use its best efforts to cause any such post-effective amendment
to be declared effective as promptly as practicable.
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Preferred Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Preferred Securities have been so
qualified the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
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(i) The Offerors will cooperate with the Underwriters and use their
best efforts to permit the Preferred Securities to be eligible for clearance and
settlement through the facilities of DTC.
(j) The Trust will use the net proceeds received by it from the sale of
the Preferred Securities, and the Company will use the proceeds received by it
from the sale of the Subordinated Debentures, in the manners specified in the
Prospectus under "Use of Proceeds."
(k) Prior to March __, 2000, neither the Trust nor the Company will,
without the prior written consent of the Representatives, directly or
indirectly, issue, sell, offer or agree to sell, grant any option for the sale
of, or otherwise dispose of, any securities that are substantially similar to
the Preferred Securities, any security convertible into exchangeable or
exercisable for Preferred Securities or any equity security substantially
similar to the Preferred Securities (except for the Securities issued pursuant
to this Agreement or with the prior written consent of the Representatives).
SECTION 4. PAYMENT OF EXPENSES.
The Company will pay all costs and expenses incident to the performance
of its obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 9 hereof, including all costs and expenses incident to (i) the printing
or other production of documents, including the Operative Documents, with
respect to the transactions, including any costs of printing the Registration
Statement originally filed with respect to the Preferred Securities and any
amendment thereto, any Rule 462(b) Registration Statement, and the Prospectus
and any amendment or supplement thereto, this Agreement and any blue sky
memoranda, (ii) all arrangements relating to the delivery to the Underwriters of
copies of the foregoing documents, (iii) the fees and disbursements of the
counsel, the accountants and any other experts or advisors retained by the
Company, (iv) preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Preferred Securities, including transfer agent's and
registrar's fees, (v) the qualification of the Preferred Securities under state
securities and blue sky laws, including filing fees and fees and disbursements
of counsel for the Underwriters relating thereto, (vi) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Preferred Securities, and (vii) the fees and expenses of any trustee
appointed under any of the Operative Documents, including the fees and
disbursements of counsel for such trustees in connection with the Operative
Document. If the sale of the Preferred Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 9 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by any of the Underwriters, the Company will reimburse the
Representatives upon demand for all reasonable out-of-pocket expenses (including
counsel fees and disbursements) that
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shall have been incurred by it in connection with the proposed purchase and sale
of the Preferred Securities. The Company shall not in any event be liable to any
of the Underwriters for the loss of anticipated profits from the transactions
covered by this Agreement.
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 Offerors contained in Section 1 hereof or
in certificates of any Trustee of the Trust, officer of the Company or any of
its subsidiaries delivered pursuant to the provisions hereof, to the performance
by the Offerors of their obligations hereunder, and to the following further
conditions:
(a) EFFECTIVENESS OF THE REGISTRATION STATEMENT. If the Registration
Statement or any post-effective amendment to the Registration Statement filed
prior to the Closing Date has not been declared effective as of the time of
execution hereof, the Registration Statement or any such post-effective
amendment, and, if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement, shall have been declared effective not later than
the earlier of (i) 11:00 A.M., Eastern Standard Time, on the first business day
following the date on which this Agreement is executed, and (ii) the time
confirmations are sent or given as specified by Rule 462(b) or, with respect to
the Registration Statement, such later time and date as shall have been
consented to by the Representatives; if required, the Prospectus or any term
sheet that constitutes a part thereof and any amendment or supplement thereto
shall have been filed with the Commission in the manner and within the time
period required by Rules 434 and 424(b) under the Act; no stop order suspending
the effectiveness of the Registration Statement or any amendment thereto shall
have been issued, and no proceedings for that purpose shall have been instituted
or threatened or, to the knowledge of the Company or the Representatives, shall
be contemplated by the Commission; and the Company shall have complied with any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise).
(b) OPINION OF OUTSIDE COUNSEL FOR OFFERORS. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇▇ & ▇▇▇, P.C., counsel for the Company, to the effect set forth
in Exhibit A hereto. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of Trustees of the Trust, officers of the Company and its
subsidiaries and certificates of public officials.
(c) OPINION OF SPECIAL DELAWARE COUNSEL FOR OFFERORS. If the opinion
referred to in Section 5(b) does not cover applicable matters of Delaware law,
at the Closing Date, the Underwriters shall have received the favorable opinion,
dated as of the Closing Date, of special Delaware counsel to the Offerors, to
the effect set forth in Exhibit B hereto.
(d) OPINION OF COUNSEL FOR THE BANK OF NEW YORK. At the Closing Date,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Date, of
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▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP counsel to The Bank of New York, as
Property Trustee under the Trust Agreement, and Guarantee Trustee under the
Guarantee Agreement, to the effect set forth in Exhibit C hereto.
(e) OPINION OF SPECIAL TAX COUNSEL FOR THE OFFERORS. At the Closing
Date, the Underwriters shall have received an opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇▇ & ▇▇▇, P.C., special tax counsel to the Offerors, that (i) 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 (ii)
although the discussion set forth in the Prospectus under the heading "Certain
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 Preferred Securities, such discussion
constitutes, in all material respects, a fair and accurate summary of the United
States federal income tax consequences of the purchase, ownership and
disposition of the Preferred Securities under current law. Such opinion may be
conditioned on, among other things, the initial and continuing accuracy of the
facts, financial and other information, covenants and representations set forth
in certificates of officers of the Company and other documents deemed necessary
for such opinion.
(f) OPINION OF COUNSEL FOR UNDERWRITERS. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇ & Bird LLP, counsel for the Underwriters, with respect to the
incorporation and legal existence of the Company, the Preferred Securities, the
Indenture, the Guarantee, this Agreement, and the Prospectus and other related
matters as the Underwriters may require. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of Trustees of the Trust, officers of
the Company and its subsidiaries and certificates of public officials. Such
counsel may rely as to matters of Delaware law on the opinions of counsel
furnished pursuant to subsection (c) of this Section.
(g) CERTIFICATES. At the Closing Date, there shall not have been, since
the date hereof 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
Trust, or the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and the Underwriters shall
have received a certificate of the Chairman, any Vice Chairman, the Chief
Executive Officer, the President or any Vice President of the Company and of the
chief financial officer or the chief accounting officer of the Company and a
certificate of an Administrative Trustee of the Trust, dated as of the Closing
Date, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 hereof were true and
correct, in all material respects, when made and are true and correct, in all
material respects, with the same force and effect as though expressly made at
and as of the Closing Date, and (iii) the Offerors have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Date.
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(h) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Underwriters shall have received from ▇▇▇▇▇ & Company, Inc. a
letter, dated such date, in form and substance reasonably satisfactory to 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
Prospectus.
(i) BRING-DOWN COMFORT LETTER. At the Closing Date, the Underwriters
shall have received from ▇▇▇▇▇ & Company, Inc. a letter, dated as of the Closing
Date, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to the
Closing Date.
(j) OTHER INFORMATION. On or before the Closing Date, the
Representatives and counsel for the Underwriters shall have received such
further certificates, documents or other information as they may have reasonably
requested from the Company.
(k) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Offerors at any
time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 6, 7 and 8 and this Section 5(k) shall survive any such
termination and remain in full force and effect.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Offerors agree to jointly and
severally indemnify and hold harmless each Underwriter and each person, if any,
who 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 included in the
Registration Statement or any amendment to the Registration Statement,
including the information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) of the 1933 Act
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Regulations, 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
contained in any preliminary prospectus or prospectus, including 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(c) below) any such settlement is effected
with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
the Representatives), 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 Section 6(a) 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 Offerors by
any Underwriter through the Representatives expressly for use in the
Registration Statement or any amendment to the Registration Statement
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). Such written information provided by the
Underwriters is referred to as "Underwriter Information."
The foregoing indemnification with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities
purchased Preferred Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Offerors shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if such is required by law, at or prior to
the written confirmation of the sale of such shares to such person and
if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability.
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(b) INDEMNIFICATION OF OFFERORS, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors and officers, the Trust, each of the Trustees and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) 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 Offerors by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) 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 the Representatives,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Offerors. 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.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances under which the indemnification provided for in
Section 6 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each
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indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Offerors on the one hand and the Underwriters on the
other hand from the offering of the Preferred Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and 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
considerations.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the Preferred
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
Preferred Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Underwriters
in the Preferred Offering, bear to the aggregate initial offering price of the
Preferred Securities. The relative fault of the Company, 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, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Offerors 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 Preferred Securities purchased 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 such untrue or
alleged untrue statement or omission or alleged omission.
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No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 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 officer and director of the Company, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of 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 trustees of the Trust
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Trust or the Company, and shall
survive delivery of the Preferred Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Underwriters may terminate this Agreement
with respect to the Preferred Securities, by notice to the Offerors, at any time
at or prior to the Closing Date (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 Trust or the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or any outbreak of hostilities or escalation thereof or
other calamity or crisis, in each case the effect of which is such as to make
it, in the reasonable judgment of the Underwriters, impracticable to market the
Preferred Securities or to enforce contracts for the sale of the Preferred
Securities, or (iii) if trading in any securities of the Company has been
suspended or limited by the Commission, or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market
System has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or Pennsylvania
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
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Section 4 hereof, and provided further that Sections 6, 7, and 8 and this
Section 9 shall survive such termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at the Closing Date to purchase the Preferred
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Preferred Securities"), the Underwriters 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 Preferred Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Underwriters shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Preferred Securities does not exceed 10%
of the total number of Preferred Securities to be purchased hereunder, 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
purchasing obligations hereunder bear to the purchasing obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Preferred Securities exceeds 10% of the
Preferred Securities to be purchased hereunder, this Agreement 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 a termination
of this Agreement, either the Underwriters or the Company shall have the right
to postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the 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
Underwriters shall be directed to the Underwriters c/o Wheat First at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ with a
copy to ▇▇▇▇▇▇ & Bird LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III; notices to the
Offerors shall be directed to Main Street Bancorp, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer, with a copy to ▇▇▇▇▇▇▇ & ▇▇▇, P.C., One Glenhardie
Corporate Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
-22-
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Offerors 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 and the Offerors
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal Representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Preferred Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA.
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.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
MAIN STREET BANCORP, INC.
By:
--------------------------------------
Title:
-----------------------------------
MBNK CAPITAL TRUST I
By: Main Street Bancorp, Inc.
By: By:
--------------------------------------
Title:
-----------------------------------
-23-
CONFIRMED AND ACCEPTED,
as of the date first above written:
WHEAT FIRST SECURITIES,
A DIVISION OF FIRST UNION
CAPITAL MARKETS CORP.
By:
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
By:
-------------------------------------
▇▇▇ ▇. Junior
Vice President
-24-
SCHEDULE A
Number of
Name of Underwriters Preferred Securities
-------------------- --------------------
Wheat First Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
--------------------
Total 4,000,000
--------------------
--------------------
EXHIBIT A
Form of Opinion of ▇▇▇▇▇▇▇ & ▇▇▇, P.C., Counsel for the Company, to be
delivered pursuant to Section 5(b) of this Agreement:
1. The Company is validly existing as a corporation under the laws of
the Commonwealth of Pennsylvania and has full corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement and in the Prospectus. The Company is duly
authorized to transact business and is in good standing in each jurisdiction in
which it owns or leases property of a nature, or transacts business of a type,
that would make such qualification necessary, except to the extent that the
failure to so qualify or to be in good standing would not have a material
adverse effect on the financial conditionor earnings of the Company and its
subsidiaries, considered as one enterprise.
2. Based solely on a letter dated ____________ from ______________ of
the Federal Reserve, the Company is registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended.
3. Main Street Bank is validly existing as a state-chartered bank under
the laws of the Commonwealth of Pennsylvania and has full corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and in the Prospectus Main Street
Bank being referred to herein as the "Significant Subsidiary." The Significant
Subsidiary is duly authorized to transact business and is in good standing in
each jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or to be in good standing would not have a
material adverse effect on the financial condition)or earnings of the Company
and its subsidiaries, considered as one enterprise.
4. All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and non-assessable and
have not been issued in violation of the preemptive rights of any shareholder of
the Company.
5. Under the laws of the Commonwealth of Pennsylvania, its Articles of
Incorporation and its Bylaws, the Company has the corporate power and authority
to execute and deliver, and to perform its obligations under, the Operative
Documents to which it is a party and to issue and perform its obligations under
the Subordinated Debentures.
6. This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions.
A-1
7. The Trust Agreement has been duly authorized, executed and delivered
by the Company.
8. The Guarantee has been duly and validly authorized, executed and
delivered by the Company, and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions; and the Guarantee has been duly qualified under the 1939 Act.
9. The Indenture has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions; and the Indenture has been duly qualified under the 1939 Act.
10. The Subordinated Debentures have been duly and validly authorized
for issuance by the Company, and when executed, authenticated and delivered in
the manner provided for in the Indenture and paid for in accordance with the
Subordinated Debenture Purchase Agreement, 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 to the
extent that enforcement thereof may be limited by the Enforceability Exceptions;
and the issuance of the Subordinated Debentures is not subject to preemptive or
other similar rights arising under the Articles of Incorporation or Bylaws of
the Company, under the laws of the Commonwealth of Pennsylvania or, to our
knowledge of such counsel, pursuant to any other instrument.
11. Such counsel has reviewed the statements in the Prospectus under
the captions "Capitalization," "Description of the Preferred Securities,"
"Description of the Junior Subordinated Debentures," "Description of the
Guarantee," and "Relationship Among the Preferred Securities, the Junior
Subordinated Debentures and the Guarantee" to the extent that such statements
purport to summarize certain provisions of the Preferred Securities, the
Subordinated Debentures, the Guarantee, and the Indenture such statements fairly
summarize such provisions in all material respects and conform in all material
respects to the instruments defining the same.
12. Neither the Company nor the Trust is or, immediately following
consummation of the transactions contemplated by the Agreement, will be required
to be registered under the Investment Company Act of 1940, as amended.
13. Except as disclosed in the Registration Statement or the
Prospectus, to the knowledge of such counsel, there is no action, suit or
proceeding before or by any government, governmental instrumentality or court,
domestic or foreign, now pending or threatened against or affecting the Company
or any subsidiary that in the final outcome would in our judgment result in any
material adverse change in the financial condition or earnings of the Company
and its subsidiaries considered as one enterprise, or that could
A-2
materially and adversely affect the properties or assets of the Company and its
subsidiaries considered as one enterprise, or that would adversely affect the
consummation of the transactions contemplated in the Operative Documents. To the
knowledge of such counsel, the aggregate liability or loss, if any, resulting
from the final outcome of all pending legal or governmental proceedings to which
the Company or any subsidiary is a party or which affect any of its properties
that are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to its business, would not have
a material adverse effect on the condition, financial or otherwise, earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
14. The execution and delivery by the Company of the Operative
Documents to which it is a party, the issuance and delivery of the Preferred
Securities and the Common Securities and the consummation by the Company of the
transactions contemplated by the Operative Documents do not and will not violate
or conflict with the Certificate of Incorporation or the Bylaws of the Company.
15. The execution and delivery by the Company of the Operative
Documents to which it is a party, the issuance and delivery of the Preferred
Securities and the Common Securities and the consummation by the Company of the
transactions contemplated by the Operative Documents do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary under (a) any indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any subsidiary is a party
or by which it may be bound or to which any of its properties may be subject and
which has been filed as an exhibit to the Company's Annual Report on Form 10-K
for the year ended December 31, 1999, or (b) to the knowledge of such counsel,
any existing applicable law, rule, regulation, qualification, judgment, order or
decree of any governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of its properties, except
for such conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company or
its subsidiaries considered as one enterprise.
16. No Governmental Approval which has not been made or obtained is
required for the execution or delivery by the Company of the Operative Documents
to which it is a party, or the consummation by the Company of the transactions
contemplated thereby, except approvals issued by the NASD and pursuant to the
securities or "blue sky" laws of any jurisdiction, as to which such counsel need
express no opinions.
17. The Registration Statement and any post-effective amendments
thereto have become effective under the 1933 Act and, to the knowledge of such
counsel, no
A-3
stop order suspending the effectiveness of the Registration Statement or such
amendments thereto has been issued under the 1933 Act, and no proceeding
therefor has been instituted or is pending or threatened by the Commission.
18. The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Closing Date
(other than the financial statements and related notes thereto, related
schedules and financial and statistical data, and descriptions of accounting
treatment included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
19. In addition, such counsel shall state (and may do so under separate
cover) that they have participated in the preparation of the Registration
Statement and the Prospectus and, while they are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
specified above), or the basis of the foregoing, no facts have come to the
attention of such counsel to lead them to believe that, as of the effective date
of the Registration Statement or any post-effective amendment thereto or the
date of the Prospectus or as of the Closing Date, either the Registration
Statement, any post-effective amendment thereto, or the Prospectus (or, as of
its date, any further amendment or supplement thereto made by the Company prior
to the Closing Date) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except for the financial statements and related notes
thereto, related schedules and financial and statistical data, and descriptions
of accounting treatment included therein, as to which such counsel need express
no belief).
20. Such counsel does not know of any amendment or supplement to the
Registration Statement or any post-effective amendment thereto required to be
filed or of any contract, agreement, instrument, lease, license, arrangement or
understanding of a character required to be filed as an exhibit to, described
in, the Registration Statement, post-effective amendment thereto, or the
Prospectus, as amended or supplemented, which is not filed or described as
required.
A-4
EXHIBIT B
Form of Opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, Special Delaware Counsel
to the Offerors, to be delivered pursuant to Section 5(c) of this Agreement:
1. The Trust has been duly created and is validly existing in good
standing as a statutory business trust under the Delaware Business Trust Act.
2. Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (a) execute and deliver, and to
perform its obligations under, the Operative Documents to which it is a party,
(b) issue and perform its obligations under the Preferred Securities and the
Common Securities, and (c) conduct its business as described in the Registration
Statement, or the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Administrators, and is enforceable against the Company and the
Administrators, in accordance with its terms, except to the extent that
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.
4. The Preferred Securities have been duly authorized by the Trust
Agreement, and the Preferred Securities, when duly issued, executed and
authenticated in accordance with the Trust Agreement and delivered and paid for
in accordance with the Agreement, will be, subject to the qualifications set
forth in paragraph 6 below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and will be entitled to the benefits of the
Trust Agreement, except to the extent that 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.
5. The Common Securities have been duly authorized for issuance by the
Trust Agreement and, when issued, executed and authenticated in accordance with
the Trust Agreement and delivered and paid for in accordance with the Common
Security Purchase Agreement, will be validly issued undivided beneficial
interests in the assets of
B-1
the Trust. The issuance of the Common Securities is not subject to preemptive
rights under the Delaware Business Trust Act or the Trust Agreement.
6. The holders of the Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law. We
bring to your attention, however, that the holders of the Preferred Securities
may be obligated, pursuant to the Trust Agreement, to (a) provide indemnity
and/or security in connection with, and pay taxes or governmental charges
arising from, transfers or exchange of Preferred Securities and the issuance of
replacement Preferred Securities Certificates and (b) provide security or
indemnity in connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
7. No authorization, approval, consent or order of any Delaware court
or any Delaware governmental authority or Delaware agency is required to be
obtained by the Trust solely in connection with the execution, delivery or
performance by the Trust of the Operative Documents to which it is a party, or
the consummation by the Trust of the transactions contemplated thereby or the
issuance and sale of the Preferred Securities. We express no opinion in this
paragraph 7, however, as to any governmental approvals which may be required
under state securities or "blue sky" laws.
8. None of the execution and delivery by the Trust of the Operative
Documents, or the issuance and sale of the Preferred Securities by the Trust in
accordance with the terms of the Agreement or the consummation by the Trust of
the other transactions contemplated thereby, (a) violate any applicable Delaware
laws, or (b) conflict with the Certificate of Trust or the Trust Agreement,
except that we express no opinion in this paragraph 8 with respect to (i) the
rights to indemnity and contribution contained in the Trust Agreement which may
be limited by state securities laws or the public policy underlying such laws or
(ii) any state securities or "blue sky" laws.
B-2
EXHIBIT C
Form of Opinion of _________, Special Counsel for the Property Trustee,
Guarantee Trustee, and Debenture Trustee to be delivered pursuant to Section
5(d) of this Agreement:
1. The Bank of New York is a New York banking corporation validly
existing under the laws of the State of New York.
2. The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Guarantee, and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Guarantee.
4. The Property Trustee has the requisite power and authority to
execute and deliver the Trustee Agreement, and has taken all necessary action to
authorize the execution and delivery of the Trust Agreement.
5. Each of the Indenture and the Guarantee has been duly executed and
delivered by the Indenture Trustee and the Guarantee Trustee, respectively, and
constitutes a legal, valid and binding obligation of the Indenture Trustee and
the Guarantee Trustee, respectively, enforceable against the Indenture Trustee
and the Guarantee Trustee, respectively, in accordance with its respective
terms, except that certain payment obligations may be enforceable solely against
the assets of the Trust and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation, or other
similar laws affecting the enforcement of creditors' rights generally, and by
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
6. The Securities delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
C-1