EXHIBIT 1.1
UNDERWRITING AGREEMENT
BANKNORTH GROUP, INC.
(a Maine corporation)
$150,000,000
3.750% Senior Notes due 2008
Dated: April 23, 2003
Table of Contents
Page
SECTION 1. Representations and Warranties..............................................2
(a) Representations and Warranties by the Company.........................................2
(i) Compliance with Registration Requirements.....................................2
(ii) Incorporated Documents........................................................3
(iii) Independent Accountants.......................................................3
(iv) Financial Statements..........................................................3
(v) No Material Adverse Change in Business........................................4
(vi) Good Standing of the Company..................................................4
(vii) Good Standing of the Bank.....................................................4
(viii) FDI Act.......................................................................4
(ix) Good Standing of Subsidiaries.................................................4
(x) Authorization of Securities...................................................5
(xi) Authorization of Indenture....................................................5
(xii) Authorization of Agreement....................................................5
(xiii) Capitalization................................................................5
(xiv) Absence of Defaults and Conflicts.............................................5
(xv) Absence of Labor Dispute......................................................6
(xvi) Absence of Proceedings........................................................6
(xvii) Possession of Insurance.......................................................6
(xviii) Possession of Intellectual Property...........................................7
(xix) Possession of Licenses and Permits............................................7
(xx) Ratings.......................................................................7
(xxi) Manipulation..................................................................7
(xxii) Investment Company Act........................................................7
(xxiii) Other Contracts...............................................................8
(xxiv) Absence of Further Requirements...............................................8
(xxv) Title to Property.............................................................8
(b) Officers' Certificates................................................................8
SECTION 2. Sale and Delivery to Underwriters; Closing..................................8
(a) Securities............................................................................8
(b) Payment...............................................................................9
(c) Denominations; Registration...........................................................9
SECTION 3. Covenants of the Company....................................................9
(a) Compliance with Securities Regulations and Commission Requests........................9
(b) Filing of Amendments..................................................................9
(c) Delivery of Registration Statements..................................................10
(d) Delivery of Prospectus...............................................................10
(e) Continued Compliance with Securities Laws............................................10
(f) Blue Sky Qualifications..............................................................11
(g) Rule 158.............................................................................11
(h) DTC..................................................................................11
(i) Use of Proceeds......................................................................11
(j) Restriction on Sale of Securities....................................................11
i
(k) Reporting Requirements...............................................................11
SECTION 4. Payment of Expenses........................................................11
(a) Expenses.............................................................................11
(b) Termination of Agreement.............................................................12
SECTION 5. Conditions of Underwriters' Obligations....................................12
(a) Effectiveness of Registration Statement..............................................12
(b) Opinion of Counsel for Company.......................................................12
(c) Opinion of Counsel for The Bank of New York..........................................13
(d) Opinion of Counsel for Underwriters..................................................13
(e) Officers' Certificates...............................................................13
(f) Accountant's Comfort Letter..........................................................13
(g) Bring-down Comfort Letter............................................................14
(h) Maintenance of Rating................................................................14
(i) Additional Documents.................................................................14
(j) Termination of Agreement.............................................................14
SECTION 6. Indemnification............................................................14
(a) Indemnification of Underwriters......................................................14
(b) Indemnification of the Company, Directors and Officers...............................15
(c) Actions against Parties; Notification................................................15
(d) Settlement without Consent if Failure to Reimburse...................................16
SECTION 7. Contribution...............................................................17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.............18
SECTION 9. Termination of Agreement...................................................18
(a) Termination; General.................................................................18
(b) Liabilities..........................................................................18
SECTION 10. Default by One or More of the Underwriters.................................18
SECTION 11. Notices....................................................................20
SECTION 12. Parties....................................................................20
SECTION 13. GOVERNING LAW AND TIME.....................................................20
SECTION 14. Effect of Headings.........................................................20
SCHEDULE
Schedule A -- List of Underwriters........................................Sch. A-1
Schedule B -- Pricing Information ........................................Sch. B-1
EXHIBITS
Exhibit A -- Form of Opinion of Company's Counsel..............................A-1
ii
BANKNORTH GROUP, INC.
(a Maine corporation) and
$150,000,000
3.750% Senior Notes due 2008
UNDERWRITING AGREEMENT
April 23, 2003
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
as Representatives of the several Underwriters listed in Schedule A
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Banknorth Group, Inc., a Maine corporation, (the "Company") confirms
its agreement with ▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇ Brothers"), ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, Inc. ("▇▇▇▇▇, ▇▇▇▇▇▇▇▇"), 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 which ▇▇▇▇▇▇ Brothers and ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ are acting as
Representatives (in such capacity, the "Representatives") with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of $150,000,000 aggregate principal amount of the
Company's 3.750% Senior Notes due 2008 in the respective amounts set forth in
said Schedule A hereto (the "Securities"). The Securities will be issued
pursuant to an Indenture, dated as of April 30, 2003 (as the same may be
supplemented and amended from time to time, the "Indenture") between the Company
and The Bank of New York, a New York banking corporation, as trustee (the
"Trustee"). The Securities are more fully described in the Prospectus (as
defined below).
The Company understands that the Underwriters propose to make a
public offering of the Securities as soon as the Representatives deem advisable
after this Agreement has been executed and delivered. Capitalized terms used
herein without definition have the respective meanings specified in the
Prospectus.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a shelf registration statement on Form S-3 (No. 333-81980),
as amended by Pre-
effective Amendment No. 1 thereto covering the registration of
the Securities and certain other securities described therein 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").
Such Registration Statement has been declared effective by the Commission and
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement, including the exhibits
thereto, schedules thereto, if any, at the time it became effective and
including documents incorporated by reference therein at such time, 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 term
"prospectus supplement" means a prospectus supplement specifically relating to
the Securities offered pursuant to this Agreement. The term "base prospectus"
means the prospectus included in the Registration Statement relating to the
Company's debt securities generally of which the Securities are a series. The
prospectus supplement and the base prospectus, including the documents
incorporated by reference therein under the 1933 Act at the time of the
execution of this Agreement, in the form first furnished to the Underwriters for
use in connection with the offering of the Securities, is herein called the
"Prospectus." For purposes of this Agreement, all references to the Registration
Statement, the prospectus supplement, the Prospectus 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 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 or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement 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 or the Prospectus, as the case may
be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time (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, 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 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. 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 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
Form T-1 (the "Forms T-1") under the Trust Indenture Act of the Trustee.
(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 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 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.
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(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 under the laws of the State
of Maine 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 and a financial holding company under the Bank Holding
Company Act of 1956, as amended.
(vii) Good Standing of the Bank. Banknorth, NA (the "Bank") is a
duly organized and validly existing national banking association under the laws
of the United States, continues to hold a valid certificate to do business as
such, has full power and authority to conduct its business as such and has the
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus. The Bank 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 authorization
necessary, except to the extent that the failure to be so authorized or be in
good standing would not have a Material Adverse Effect. All of the issued and
outstanding capital stock of the Bank has been duly authorized and validly
issued and is fully paid and non-assessable (except to the extent provided in
the National Bank Act); and all such capital stock of the Bank is owned by the
Company, free and clear of any pledge, lien, encumbrance or equity. The Company
has no subsidiaries which would constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X, other than the Bank, Northgroup (FM) Investment
Company, a Maine corporation and a wholly-owned subsidiary of the Bank
("Northgroup (FM)"), and Northgroup Preferred Capital Corp., a Maine corporation
of which all of the outstanding shares of common stock are held by Northgroup
(FM).
(viii) FDI Act. The Bank is an insured depositary under the
provisions of the Federal Deposit Insurance Act, as amended (the "FDI Act").
(ix) Good Standing of Subsidiaries. Each of the Company's
subsidiaries other than the Bank has been duly incorporated and is validly
existing or subsisting, as the case may be, as a corporation in good standing
under the laws of the jurisdiction of its incorporation or
4
organization and, to the extent applicable, each such subsidiary is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, except for such
jurisdictions where the failure to be so qualified would not have a Material
Adverse Effect; all of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable; except as set forth or incorporated by reference in the
Prospectus, the capital stock of each such subsidiary is owned by the Company,
free and clear of any pledge, lien, encumbrance, claim or equity.
(x) Authorization of Securities. The Securities 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 Securities 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) 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 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).
(xii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xiii) Capitalization. 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.
(xiv) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries 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 or any subsidiary of the
Company is a party or by which any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary of the Company is subject,
except for such defaults that would not result in a Material Adverse Effect and
the execution and delivery by the Company of, and the performance by the Company
of its obligations under this Agreement, the Indenture and the Securities, and
the consummation of the sale of the Securities and the fulfillment of the terms
5
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 is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such actions result in any
violation of the provisions of the Articles of Incorporation or By-Laws of the
Company, nor will such actions result in any violation (in each case material to
the Company and its subsidiaries considered as a whole ) of any statute or any
order, rule or regulation of any court or regulatory authority or other
governmental body having jurisdiction over 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 of its obligations under this Agreement and the issuance and delivery of
the Securities, except such approvals as have been obtained under the 1933 Act
and 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 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.
(xv) 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.
(xvi) Absence of Proceedings. 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 the Company, 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 of its
obligations hereunder; the aggregate of all pending legal 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.
(xvii) 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
6
companies of similar size and scope of operations in similar businesses, and all
such insurance is in full force and effect.
(xviii) 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.
(xix) 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
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.
(xx) Ratings. As of the Closing Time, the Securities will have
been rated at least Baa1by ▇▇▇▇▇'▇ Investors Services, Inc., at least BBB by
Standards & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. and at least
BBB by Fitch, Inc..
(xxi) Manipulation. The Company has 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.
(xxii) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
7
(xxiii) 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 reports 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.
(xxiv) 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 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.
(xxv) 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 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 delivered to Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company 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) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company 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 price set forth on Schedule B, the aggregate principal amount of Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
8
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other
place as shall be agreed upon by the Underwriters and the Company, at 9:00 A.M.
(Eastern time) on the fifth 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 (such time and date of payment and delivery being
herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriters of certificates for the Securities to be purchased by them. It
is understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for the 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 Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time but such payment shall not relieve such Underwriter from its obligations
hereunder.
(c) Denominations; Registration. Certificates for the Securities
shall be in such denominations and registered in such names as the
Representatives may request in writing at least two full business days before
the Closing Time. The certificates for the Securities will be made available for
examination and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company will comply with the requirements of Rule 424 and will notify the
Underwriters immediately, and 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 Securities for offering or sale in any jurisdiction or of
the initiation or threatening of any proceedings for any of such purposes. The
Company 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 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 will give the Representatives
notice of their intention to file or prepare any amendment to the Registration
Statement (including any
9
filing under Rule 462(b)) or any amendment, supplement or revision to either the
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 Representatives with copies of any such documents
to, and consult with, the Representatives and their 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 Representatives or counsel
for the Representatives shall object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Representatives 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 they may reasonably request, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Representatives. 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 will deliver to each
Underwriter, without charge, as many copies of the Prospectus as such
Underwriter reasonably requests, and the Company 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 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 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 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, 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 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.
10
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the 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 the Securities contemplated hereby; 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 Securities have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction.
(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 Company will cooperate with the Underwriters and use
its their best efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of The Depository Trust Company.
(i) Use of Proceeds. 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, the Company will not, without the prior written
consent of the Representatives, directly or indirectly, (i) sell, offer to sell,
contract to sell, or otherwise dispose of, any additional Securities, any
similar debt securities or any security convertible into or exchangeable into or
exercisable for Securities or any debt securities substantially similar to the
Securities, (ii) sell or grant any option, right or warrant for the sale of any
such securities, or (iii) enter into any swap or other derivatives transaction
that transfers benefits or risks of ownership of any such securities. The
foregoing sentence shall not apply to the Securities offered in connection with
this offering.
(k) Reporting Requirements. The Company, 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 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 Securities, (iii) the
11
preparation, issuance and delivery of the certificates for the 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 Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the 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 any preliminary prospectus 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 Securities, (ix) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with the
Indenture, (x) any fees payable in connection with the rating of the Securities
and (xi) the cost and charges associated with the approval of the Securities by
The Depository Trust Company for "book-entry" transfer. It is understood,
however, that, except as expressly provided in this Section 4 and Sections 6, 7
and 9(b) hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them and any advertising expenses connected with any offers they
may make.
(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 contained in Section 1 hereof or
in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its 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. The Prospectus shall
have been filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., 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 opinion shall
be limited to Maine, New York and federal law. In giving such opinion, such
counsel may rely (i) as to all matters governed by the laws of jurisdictions
other than the laws of the State of Maine and the federal law of the United
States, upon opinions of other counsel, who shall be counsel satisfactory to
12
counsel to the Underwriters, in which case the opinion shall state that such
counsel believes the Underwriters and such counsel are entitled to so rely, and
(ii) with respect to the laws of the State of New York pertaining to validity
and enforceability of the Securities and the Indenture, upon the opinion of
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Underwriters. Such counsel may
also state that, insofar as such opinion involves factual matters, such counsel
has relied, to the extent such counsel deems proper, upon certificates of
officers of the Company and/or the Bank and certificates of public officials.
(c) Opinion of Counsel for The Bank of New York. At Closing Time,
the Representatives shall have received an opinion, dated as of Closing Time, of
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to The Bank of New York, as Trustee, in
form and substance satisfactory to the Underwriters.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives 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 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.
(e) 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, 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
Representatives 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, on behalf of the Company, 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.
(f) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from KPMG LLP, the
Company's independent public accountants, a letter dated such date, in form and
substance satisfactory to the Representatives, 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
13
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from KPMG 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 (f) 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.
(h) Maintenance of Rating. At Closing Time, the Securities shall be
rated at least Baa1 by ▇▇▇▇▇'▇ Investors Service, Inc., BBB by Standard & Poor's
Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. and BBB by Fitch, 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
Representatives, confirming that the Securities have such ratings; and since the
date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the 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.
(i) Additional Documents. At Closing Time, 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 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 in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
(j) 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 Representatives by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to 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 contained in the Registration Statement (or
any amendment thereto) 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
14
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(d) below) any such
settlement is effected with the prior 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), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, each of
its directors, each of the Company's officers who signed the Registration
Statement, 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 Company by such
Underwriter through ▇▇▇▇▇▇ Brothers 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
15
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.
(d) 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) hereof 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; provided that an indemnifying
party shall not be liable for any such settlement effected without its consent
if such indemnifying party, prior to the date of such settlement (1) reimburses
such indemnified party in accordance with such request for the amount of such
fees and expenses of counsel as the indemnifying party believes in good faith to
be reasonable and (2) provides written notice to the indemnified party that the
indemnifying party disputes in good faith the reasonableness of the unpaid
balance of such fees and expenses.
16
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 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 on the one hand and the Underwriters on the other hand from the offering
of the 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 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 on the one hand and
the Underwriters on the other hand in connection with the offering of the
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
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.
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 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 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.
17
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 who signed the
Registration Statement, 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 aggregate principal amount 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 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 Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the 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 Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the 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
Maine 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.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at Closing Time to purchase the Securities
which it or they are obligated
18
to purchase under this Agreement (the "Defaulted Securities"), the
Representatives 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 Representatives 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
aggregate principal amount of 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
aggregate principal amount of Securities to be purchased on such date, 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 Representatives or the Company shall
have the right to postpone Closing Time 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.
19
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
Representatives shall be directed to ▇▇▇▇▇▇ Brothers at ▇▇▇▇▇▇ Brothers Inc.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Fixed Income
Syndicate (with a copy to the General Counsel); and notices to the Company shall
be directed to it at Banknorth Group, Inc., ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice President and
General Counsel.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and the Company 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 Company 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 Company 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.
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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 Company in accordance with its terms.
Very truly yours,
BANKNORTH GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Executive Vice
President and Chief
Operating Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
By: ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
21
SCHEDULE A
PRINCIPAL AMOUNT OF
UNDERWRITER SECURITIES
----------- -------------------
▇▇▇▇▇▇ Brothers Inc.......................................... $ 75,000,000
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc................................. 75,000,000
-----------
Total..................................... $ 150,000,000
===========
Sch. A-1
SCHEDULE B
BANKNORTH GROUP, INC.
$150,000,000
3.750% Senior Notes due 2008
1. The initial public offering price of the Securities shall be
99.810% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 99.260% of the principal amount thereof.
3. The interest rate on the Securities shall be 3.750% per annum.
Sch. B-1
Exhibit A
Form of opinion, dated as of Closing Time, of ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P., counsel for the Company, 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 Maine.
(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) Banknorth, NA (the "Bank") is a duly organized and validly
existing national banking association under the laws of the United States,
continues to hold a valid certificate to do business as such, has full power and
authority to conduct it business as such and as described in the Prospectus; and
has the authority to own, lease and operate its properties and to conduct it
business as described in the Prospectus.
(vi) The Bank is duly authorized to transact 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 authorization necessary,
except to the extent that the failure to be so authorized or be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise. To our knowledge,
the Company has no subsidiaries which constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X except for the Bank, Northgroup (FM) and
Northgroup Preferred Capital Corp..
(vii) 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.
(viii) The Underwriting Agreement has been duly authorized by the
Company and has been duly executed and delivered by the Company.
(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),
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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 Securities are in the form contemplated by the Indenture,
have been duly authorized, executed and delivered by the Company and, when the
Securities have been duly authenticated by the Trustee in accordance with the
provisions of the Indenture, the Securities 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 Indenture has been duly qualified under the ▇▇▇▇ ▇▇▇.
(xii) The Indenture and the Securities conform as to legal matters
in all material respects to the descriptions thereof contained in the
Prospectus.
(xiii) 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 Maine to
subscribe for the Securities.
(xiv) The documents incorporated by reference in the Prospectus
(other than the financial statements, notes to financial statements, financial
tables, other financial or statistical data 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.
(xv) The statements made (1) in the prospectus supplement under the
caption "Description of the Notes," and in the base prospectus under the
captions "Description of the Debt Securities" and "Supervision and
Regulation,"(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, 2002 under
the caption "Item 1. Business - Supervision and Regulation," insofar as such
statements purport to summarize certain provisions of the Securities, the
Indenture, 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.
(xvi) The Bank is an insured depositary institution under the
provisions of the Federal Deposit Insurance Act, as amended.
(xvii) 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) is necessary or required in connection with the due authorization,
execution
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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.
(xviii) 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 with its
obligations under the Underwriting Agreement, the Indenture and the 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)(xiv) of the Underwriting 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 of the Company 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 or
any subsidiary of the Company 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 or any
subsidiary of the Company 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 Articles of Incorporation or By-laws of the Company, 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 or any subsidiary of the Company or any of their
respective properties, assets or operations.
(xix) The Company is not, and upon the issuance and sale of the
Securities as contemplated in the Underwriting Agreement and the application of
the net proceeds therefrom as described in the Prospectus will not be, required
to be registered under the Investment Company Act of 1940, as amended.
(xx) 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.
(xxi) 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.
(xxii) The Registration Statement was declared effective under the
1933 Act on February 12, 2002; 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); no stop order suspending the effectiveness of
the Registration Statement has been issued by the
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Commission and, no proceeding for that purpose is pending or, to such counsel's
knowledge, threatened by the Commission.
(xxiii) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(xxiv) The Registration Statement, as of its effective date, and as
of the time of filing with the Commission of the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 2002 under the 1934 Act (the "10-K
Filing Time"), 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 or statistical data and supporting schedules included therein or
excluded therefrom or the exhibits to the Registration Statement.
Such counsel shall also have furnished to the Representatives 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 KPMG 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 (except for financial
statements, notes to financial statements, financial tables, other financial or
statistical 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 and at the 10-K Filing Time, 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 or
statistical data and supporting schedules included or incorporated by reference
therein or omitted therefrom and the Form 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.
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