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EXHIBIT (1)-1
THE BANC CORPORATION
AND
TBC CAPITAL STATUTORY TRUST
800,000 PREFERRED SECURITIES*
UNDERWRITING AGREEMENT
________, 2000
STERNE, AGEE & LEACH, INC.
[INSERT ANY ADDITIONAL MANAGERS]
As Representatives of the Several Underwriters
c/o STERNE, AGEE & LEACH, INC.
800 Shades Creek Parkway, Suite 700
Birmingham, AL 35209
Gentlemen:
TBC Capital Statutory Trust (the "Trust"), a Connecticut statutory
trust under the Connecticut statutory trust Act (the "Connecticut Act"), and The
Banc Corporation, a Delaware corporation (the "Company" and together with the
Trust, the "Offerors") confirm their agreement with the several underwriters
(the "Underwriters") for whom you are acting as representatives (the
"Representatives") to issue and sell an aggregate of 800,000 shares (the
"Underwritten Preferred Securities") of the Trust's [___]% Cumulative Trust
Preferred Securities along with the accompanying guarantees to the Underwriters.
The preferred securities are more fully described in the Registration Statement
and the Prospectus hereinafter mentioned.
For the sole purpose of covering over-allotments in connection with the
sale of the Underwritten Preferred Securities, the Trust proposes to grant to
the Underwriters the option (the "Option"), as described in Section 2 hereof, to
purchase all or any part of 120,000 additional shares of [__]% Cumulative Trust
Preferred Securities along with the accompanying guarantees (the "Option
Preferred Securities"). The Underwritten Preferred Securities and the Option
Preferred Securities purchased pursuant to this Underwriting Agreement are
herein called the "Preferred Securities" and the proposed offering of the
Preferred Securities by the Underwriters is hereinafter referred to as the
"Public Offering."
The Preferred Securities will be guaranteed by the Company with respect
to distributions and amounts payable upon liquidation or redemption pursuant to
the terms and conditions set forth in the Preferred Securities Guarantee
Agreement (the "Guarantee") to be dated as of Closing Date (as defined below)
executed and delivered by the Company and State Street Bank and Trust Company
(the "Guarantee Trustee"). The Company and the Trust each understand that the
Underwriters propose to make a public offering of the Preferred Securities as
soon as they deem advisable after this Underwriting Agreement has been executed
and delivered, and the Trust Agreement (as defined in this Underwriting
Agreement), the Indenture (as defined in this Underwriting Agreement), and the
Guarantee have been qualified under the Trust Indenture Act. The entire proceeds
from the sale of the Preferred Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities (the
"Common Securities") and will be
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* Plus up to 120,000 additional shares to cover over-allotments, if any.
used by the Trust to purchase __% Subordinated Debentures (the "Debentures")
issued by the Company of equal liquidation
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value. The Preferred Securities and the Common Securities will be issued
pursuant to the Trust Agreement, to be dated as of the Closing Date (the "Trust
Agreement"), among the Company, as Sponsor, State Street Bank and Trust Company,
as property trustee (the "Property Trustee"), and the identified administrative
trustees (the "Administrative Trustees" 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 Debentures will be issued pursuant to
a subordinated indenture, to be dated as of Closing Date (the "Indenture"),
between the Company and State Street Bank and Trust Company, as debenture
trustee (the "Debenture Trustee").
The Preferred Securities, the Guarantee and the Debentures are
collectively referred to in this Underwriting Agreement as the "Securities." The
Indenture, the Trust Agreement and this Underwriting Agreement are collectively
referred to in this Underwriting Agreement as the "Operative Documents."
The Offerors have filed with the Securities and Exchange Commission
(the "Commission"), pursuant to the Securities Act of 1933, as amended (the
"Act"), published rules and regulations adopted by the Commission under the Act
(the "Rules") and the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder (the "Trust Indenture Act"), a registration statement on
Form S-1 ("Form S-1") (File No. 333-_______), including a preliminary
prospectus, relating to the Preferred Securities, and such amendments to such
registration statement as may have been filed with the Commission to the date of
this Underwriting Agreement. The term "preliminary prospectus" means any
preliminary prospectus (as referred to in Rule 430 or Rule 430A of the Rules)
included at any time as a part of the registration statement. The Offerors have
furnished to the Representatives copies of such registration statement, each
amendment to it filed with the Commission and each preliminary prospectus filed
by the Offerors with the Commission and any other offering materials used by the
Offerors. If such registration statement has not become effective, a further
amendment (the "Final Amendment") to such registration statement, including a
form of final prospectus, if necessary to permit such registration statement to
become effective, will promptly be filed by the Offerors with the Commission. If
such registration statement has become effective, a final prospectus (the "Rule
430A Prospectus") containing information permitted to be omitted at the time of
effectiveness by Rule 430A of the Rules will promptly be filed by the Offerors
with the Commission in accordance with the Rules. The registration statement as
amended at the time it becomes or became effective (the "Effective Date"),
including financial statements and all exhibits and any information deemed to be
included by Rule 430A, is called the "Registration Statement." The term
"Prospectus" means the prospectus as first filed with the Commission pursuant to
Rule 424(b) of the Rules, or if no such filing is required, the form of final
prospectus included in the Registration Statement at the Effective Date.
Any reference herein to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein on or before the Effective Date or
the date of such preliminary prospectus or the Prospectus, as the case may be.
As Representatives, you have advised the Offerors (a) that you are
authorized to enter into this Underwriting Agreement on behalf of the several
Underwriters and (b) the Underwriters are willing, acting severally and not
jointly, to purchase the amounts of the Underwritten Preferred Securities set
forth opposite their respective names in Schedule I hereto, plus their pro rata
portion of the Option Preferred Securities if you elect to exercise the
over-allotment Option in whole or in part for the accounts of the several
Underwriters.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the Offerors
and the Underwriters hereby agree as follows:
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE OFFERORS.
(a) The Offerors jointly and severally represent and warrant to,
and agree with, each Underwriter as follows:
(i) The Company has been duly organized, is in compliance
with its Restated Certificate of Incorporation and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
power and authority (corporate and other) to own its properties and conduct its
business as described in the
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Registration Statement and Prospectus; all significant subsidiaries (as defined
by the Act) of the Company (each, a "Subsidiary" and collectively, the
"Subsidiaries") have been duly incorporated, will be, and are validly existing
as a banking association or corporation, as the case may be, in good standing
under the laws of the jurisdiction of its association or incorporation, as the
case may be, with full power and authority (corporate and other) to own or lease
its properties and conduct its business; the Company and the Subsidiaries are
duly qualified to transact business in all jurisdictions in which the conduct of
their business or the ownership or lease of their properties requires such
qualifications; all of the outstanding shares of capital stock of each
Subsidiary are owned by the Company and have been duly and validly authorized
and issued, are fully paid and non-assessable.
(ii) The Trust has been duly created and is validly
existing as a statutory trust in good standing under the Connecticut Act with
the power and authority (trust and other) to own its property and conduct its
business as described in the Registration Statement and Prospectus, to issue and
sell the Common Securities to the Company pursuant to the Trust Agreement, to
issue and sell the Preferred Securities, to enter into and perform its
obligations under this Underwriting Agreement and to consummate the transactions
herein contemplated; the Trust has no subsidiaries and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so qualified or to be
in good standing would not have a material adverse effect on the Trust; the
Trust has conducted and will conduct no business other than the transactions
contemplated by this Underwriting Agreement and described in the Prospectus; the
Trust is not a party to or bound by any agreement or instrument other than this
Underwriting Agreement, the Trust Agreement and the agreements and instruments
contemplated by the Trust Agreement and described in the Prospectus; the Trust
has no liabilities or obligations other than those arising out of the
transactions contemplated by this Underwriting Agreement and the Trust Agreement
and described in the Prospectus; the Trust is not a party to or subject to any
action, suit or proceeding of any nature; the Trust is not, and at the Closing
Date or any Option Closing Date will not be, to the knowledge of the Offerors,
classified as an association taxable as a corporation for United States federal
income tax purposes; and the Trust is, and as of the Closing Date or any Option
Closing Date will be, treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(iii) The capital stock of the Company and the equity
securities of the Trust conform to the description thereof contained in the
Prospectus or the financial information included therein (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus). The outstanding
shares of capital stock and equity securities of each Offeror have been duly
authorized and validly issued and are fully paid and nonassessable, and no such
shares were issued in violation of the preemptive or similar rights of any
security holder of an Offeror; no person has any preemptive or similar right to
purchase any shares of capital stock or equity securities of the Offerors.
Except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no outstanding
rights, options or warrants to acquire from the Offerors any securities of the
Offerors other than options and warrants issued by the Company pursuant to its
employee benefit plans, and there are no outstanding securities convertible into
or exchangeable for any such securities and no restrictions upon the voting or
transfer of any capital stock of the Company or equity securities of the Trust
pursuant to the Company's corporate charter or bylaws, the Trust Agreement or
any agreement or other instrument to which an Offeror is a party or by which an
Offeror is bound, provided however that the holders of the Preferred Securities
will have limited voting rights as described in the Prospectus. As of the
Closing Date (as defined below) and any Option Closing Date (as defined below),
if applicable, and upon application of the estimated net proceeds of the
offering the Offerors will have the authorized capitalization set forth under
the caption, "Capitalization" in the Prospectus. No further corporate approval
or authority on behalf of the Offerors will be required for the issuance and
sale of the Preferred Securities to be sold by the Trust as contemplated herein.
(iv) (A) The Trust has all requisite power and
authority to issue, sell and deliver the Preferred Securities in accordance with
and upon the terms and conditions set forth in this Underwriting Agreement and
the Trust Agreement. All corporate and trust action required to be taken by the
Offerors for the authorization, issuance, sale and delivery of the Preferred
Securities in accordance with such terms and conditions has been validly and
sufficiently taken. The Preferred Securities, when delivered in accordance with
this Underwriting Agreement, will be duly and validly issued and outstanding,
will be fully paid and nonassessable undivided beneficial interests in the
assets of the Trust, will be entitled
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to the benefits of the Trust Agreement, will not be issued in violation of or
subject to any preemptive or similar rights, and will conform in all material
respects to the description thereof in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the Trust Agreement. None of the Preferred
Securities, immediately prior to delivery, will be subject to any security
interest, lien, mortgage, pledge, encumbrance, restriction upon voting or
transfer, preemptive rights, claim, equity or other defect.
(B) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and issued as
provided in the Indenture and delivered to the Trust pursuant to the Trust
Agreement, will constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and will conform in all material
respects to the description thereof contained in the Prospectus.
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to the Guarantee
Trustee for the benefit of the Trust, will constitute a valid and legally
binding obligation of the Company and will conform in all material respects to
the description thereof contained in the Prospectus.
(D) The Agreement as to Expenses and Liabilities
(the "Expense Agreement") has been duly and validly authorized, and, when duly
and validly executed and delivered by the Company, will constitute a valid and
legally binding obligation of the Company and will conform in all material
respects to the description thereof contained in the Prospectus.
(v) Any preliminary prospectus, the Prospectus and the
Registration Statement have been carefully prepared by the Offerors in
conformity with the requirements of the Act and the Rules, including Form S-1
and the Trust Indenture Act. The Registration Statement has been filed with the
Commission under the Act.
(vi) Neither the Commission nor any other agency, body,
authority, court or arbitrator of competent jurisdiction has, by order or
otherwise, prohibited or suspended the use of any preliminary prospectus or the
Prospectus relating to the proposed offering of the Preferred Securities or
instituted proceedings for that purpose. The Registration Statement, the
Prospectus and any preliminary prospectus and any amendments or supplements
thereto at the time they became or become effective or were filed or are filed
with the Commission contained or will contain all statements which are required
to be stated therein by, and in all material respects conformed or will conform
to the requirements of, the Act, the Rules and the Trust Indenture Act. Neither
the Registration Statement, nor any preliminary prospectus nor any amendment
thereto, and neither the Prospectus nor any supplement thereto, as of its date
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
provided, however, that the Offerors make no representations or warranties as to
information contained in or omitted from the Registration Statement or any
preliminary prospectus or the Prospectus, or any such amendment or supplement,
in reliance upon, and in conformity with, written information furnished to the
Offerors by or on behalf of any Underwriter through the Representatives,
expressly for use in the preparation thereof.
(vii) The consolidated financial statements of the Company
and the Subsidiaries, together with related notes and schedules as set forth in
the Registration Statement, present fairly the consolidated financial position
and the consolidated results of operations of the Company and the Subsidiaries
consolidated, at the indicated dates and for the indicated periods. Such
financial statements have been prepared in accordance with generally accepted
principles of accounting, consistently applied throughout the periods involved,
and all adjustments necessary for a fair presentation of results for such
periods have been made. The Summary Consolidated Financial Data and the Selected
Consolidated 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 and unaudited financial statements from which they were derived.
(viii) There is no action or proceeding pending or, to the
knowledge of the Offerors, threatened against the Offerors or any Subsidiary
before any court or administrative or governmental agency or other body which
might (A) result in any material adverse change in the condition (financial or
otherwise), or in the earnings, business, affairs, properties, business
prospects or results of operations of the Offerors and the Subsidiaries taken as
a whole, whether or not arising in
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the ordinary course of business, or (B) affect the performance of this
Underwriting Agreement or the consummation of the transactions herein
contemplated, except as disclosed in the Registration Statement and for which
the Company maintains a reserve in an amount which is adequate to cover
potential liabilities.
(ix) The Company and each Subsidiary has good and
marketable title to all of the material properties and assets reflected in the
financial statements hereinabove described or as described in the Prospectus as
being owned by them, subject to no lien, mortgage, pledge, charge or encumbrance
of any kind except those securing indebtedness described in such financial
statements or as described in the Prospectus or which do not materially affect
the present or proposed use of such properties or assets. The Company and the
Subsidiaries occupy their leased properties under valid, subsisting and binding
leases with only such exceptions as in the aggregate are not material and do not
interfere with the conduct of the business of the Company.
(x) Except as otherwise set forth in the Prospectus, the
Company and each Subsidiary have filed all Federal, State and foreign tax
returns which have been required to be filed and have paid all taxes indicated
by said returns and all assessments received by them or any of them to the
extent that such taxes have become due.
(xi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, as they may be amended
or supplemented, (A) there has not been any material adverse change in the
condition (financial or otherwise), or in the earnings, business, affairs,
properties, business prospects or results of operations of either of the
Offerors and/or the Subsidiaries taken as a whole nor do the Offerors have
knowledge of any such change that is threatened, (B) there has not been any
transaction entered into by either of the Offerors or the Subsidiaries that is
material to the earnings, business, affairs, properties, business prospects or
operations of the Offerors or the Trust, other than transactions in the ordinary
course of business and changes and transactions contemplated by the Registration
Statement and the Prospectus, as they may be amended or supplemented, and (C)
there has not been any material change in the capital stock, long term debt or
material liabilities of the Offerors. Neither of the Offerors nor any of the
Subsidiaries have any material contingent obligations which are not disclosed in
the Registration Statement and the Prospectus.
(xii) Neither the Offerors nor any of the Subsidiaries
individually or in the aggregate are in breach or violation of or default under
any indenture, mortgage, deed of trust, lease, contract, note or other agreement
or instrument to which it is a party or by which it or any of its properties is
bound and which default may result in a material adverse change in the condition
(financial or otherwise) or in the earnings, business, affairs, properties,
business prospects or results of operations of either of the Offerors and/or the
Subsidiaries taken as a whole. The consummation of the transactions contemplated
by this Underwriting Agreement, the Trust Agreement, the Guarantee and the
Expense Agreement and the fulfillment of the terms thereof will not result in a
breach or violation of any of the material terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, lease,
contract, note or other agreement or instrument to which the Offerors or any
Subsidiary is a party, or of the Offerors' charter or bylaws or any law,
decree, order, rule, writ, injunction or regulation applicable to the Offerors
or any Subsidiary of a court or of any regulatory body or administrative agency
or other governmental body having jurisdiction.
(xiii) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and delivery
by the Offerors of this Underwriting Agreement, the Trust Agreement, the
Guarantee and the Expense Agreement and performance of their obligations
thereunder (except such additional steps as may be necessary to qualify the
Preferred Securities for public offering by the Underwriters under state
securities or Blue Sky laws) have been obtained or made and is in full force and
effect.
(xiv) The Offerors and each Subsidiary hold all material
licenses, authorizations, charters, certificates and permits from governmental
authorities which are necessary to the conduct of their businesses and neither
the Offerors nor any Subsidiary has received notice of any proceeding relating
to the revocation or modification of any of such licenses, authorizations,
charters, certificates or permits. The Offerors and the Subsidiaries own or
otherwise possess rights to use the licenses, inventions, copyrights,
trademarks, service marks and trade names presently employed by them in
connection with the business now operated by them, and neither the Offerors nor
any Subsidiary has infringed or received any notice
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of infringement of or conflict with asserted rights of others with respect to
any of the foregoing.
(xv) Each of Ernst & Young LLP, Saltmarsh, Cleavland &
Gund and Williams, Cox, Weidner and Cox, who have certified certain of the
financial statements filed with the Commission and included as part of the
Registration Statement and Prospectus, are independent public accountants within
the meaning of the Act, the Rules and Regulation S-X of the Commission and Rule
101 of the Code of Professional Ethics of the American Institute of Certified
Public Accountants.
(xvi) There are no agreements, contracts or other documents
of a character required to be described in the Registration Statement or the
Prospectus or required by Form S-1 to be filed as exhibits to the Registration
Statement which are not described or filed as required.
(xvii) No labor dispute exists or is imminent with the
Company's employees or with employees of any Subsidiary which could materially
adversely affect the condition (financial or otherwise), earnings, business,
affairs, properties, business prospects or results of operations of the
Offerors.
(xviii) Except as contemplated by Section 2 hereof and as
disclosed in the Prospectus and permitted by the Rules, the Offerors have not
(themselves or through any person) taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to,
cause or result in a violation of Section 5 of the Act or Regulation M under the
Exchange Act ("Regulation M") or in stabilization or manipulation of the price
of the Company's common stock or the Preferred Securities.
(xix) This Underwriting Agreement has been duly authorized,
executed and delivered by the Offerors and is enforceable against the Offerors
in accordance with its terms, subject to all applicable bankruptcy, insolvency,
moratorium, receivership, and other laws relating to or affecting the rights of
creditors generally and subject to the discretion of a court of equity in
administering any such rights or remedies. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly authorized by
the Company, and, when executed and delivered by the Company on the Closing
Date, each of said agreements will constitute a valid and legally binding
obligation of the Company and will be enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy, moratorium, reorganization,
fraudulent transfer or other laws relating to or affecting creditors, rights
generally and except as any indemnification or contribution provisions thereof
may be limited under applicable securities laws or public policy. Each of the
Indenture, the Trust Agreement and the Guarantee has been duly qualified under
the Trust Indenture Act and will conform in all material respects to the
description thereof contained in the Prospectus.
(xx) Neither of the Offerors nor any Subsidiary is in
violation of any law, ordinance, governmental rule or regulation or court decree
to which it may be subject, which violation might have a material adverse effect
on the condition (financial or otherwise), earnings, business, affairs,
properties, business prospects or the results of operations of either of the
Offerors and/or the Subsidiaries taken as a whole. The Preferred Securities have
been approved for quotation on the American Stock Exchange subject to official
notice of issuance.
(b) Any certificate signed by any officer or
trustee of the Trust or the Company, as the case may be and delivered to you or
counsel for the Representatives shall be deemed a representation and warranty by
the Trust or the Offerors to the Underwriters as to the matters covered thereby.
2. PURCHASE, SALE AND DELIVERY OF THE UNDERWRITTEN PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and covenants
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 agrees, severally and not jointly, to purchase, at a price of $25
per share, the number of the Underwritten Preferred Securities set forth
opposite the name of each Underwriter in Schedule I attached hereto, subject to
adjustment in accordance with Section 10 hereof. Each Underwriter shall be
entitled to a commission ("Commission") from the Company of $1.00 per
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Preferred Security sold by such Underwriter.
(b) Payment for the Underwritten Preferred Securities shall be
made by certified or bank cashier's checks in clearing house funds (which will
be next day funds) or, upon mutual agreement of the parties, by wire transfer of
U.S. Funds to a designated account of the Trust drawn to the order of the Trust
against book entry delivery of the Preferred Securities to the Representatives
for the accounts of the several Underwriters. Payment and delivery will be made
at such place as shall be agreed upon by the Representatives and the Trust, at
8:00 A.M., Central Time, on ____________, 2000 or at such other time and date
not later than six days after the Effective Date as you and the Offerors shall
agree upon, such time and date of payment being herein referred to as the
"Closing Date." Appropriate documentation regarding the Underwritten Preferred
Securities will be delivered as the Representatives request in writing not later
than the second full business day prior to the Closing Date, and will be made
available for inspection at such location as the Representatives may reasonably
request, at least one full business day prior to the Closing Date. The
Commission for the Underwritten Preferred Securities shall be deposited by the
Company into an escrow account with The Trust Company of Sterne, Agee & Leach,
Inc. pursuant to an Escrow Agreement prepared by Underwriter's counsel no later
than one (1) business day prior to the Closing Date.
(c) In addition, on the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Trust hereby grants an Option to the several
Underwriters to purchase the Option Preferred Securities at the price per share
as set forth in the first paragraph of this Section 2. The Option may be
exercised in whole or in part (but only once) at any time upon written notice
(or oral notice, subsequently confirmed in writing) given not less than 30 days
following the date of this Underwriting Agreement, by you, as the
Representatives of the several Underwriters, to the Trust setting forth the
number of Option Preferred Securities as to which the several Underwriters are
exercising the Option and the names and denominations in which the Option
Preferred Securities are to be registered. Closing of the purchase of the Option
Preferred Securities, if any, shall occur no later than four business days
following the date upon which notice of exercise of the Option is given to the
Trust ("Option Closing Date"). The number of Option Preferred Securities to be
purchased by each Underwriter shall be in the same proportion as the total
number of Underwritten Preferred Securities being purchased by such Underwriter
bears to the total number of Underwritten Preferred Securities being purchased
by all Underwriters as a group, as more particularly indicated on Schedule I,
subject to adjustment in accordance with Section 10 and as adjusted by you in
such manner to avoid fractional shares. The Option may be exercised only to
cover over-allotments in the sale of the Underwritten Preferred Securities by
the Underwriters. You, as Representatives, may cancel such Option at any time
prior to its expiration by giving written notice (or oral notice, subsequently
confirmed in writing) of such cancellation to the Offerors. To the extent, if
any, that the Option is exercised, payment for the Option Preferred Securities
shall be made at such closing by a certified or bank cashier's check in clearing
house funds (which will be next day funds) or, upon mutual agreement of the
parties, by wire transfer of U.S. Funds to a designated account of the Trust,
drawn to the order of the Trust. The Commission for the Option Preferred
Securities shall be deposited by the Company into an escrow account with The
Trust Company of Sterne, Agee & Leach, Inc. pursuant to an Option Escrow
Agreement prepared by Underwriter's counsel no later than one (1) business day
prior to the Option Closing Date.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the Public Offering of the Underwritten Preferred
Securities is to be made as soon as the Representatives deem it advisable to do
so after the Registration Statement has become effective. The Underwritten
Preferred Securities are to be initially offered to the public at the public
offering price set forth in the Prospectus. The Representatives may from time to
time thereafter change the public offering price and other selling terms. To the
extent, if at all, that any Option Preferred Securities are purchased pursuant
to Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as Representatives for the
Underwriters in the offering and sale of the Preferred Securities, in accordance
with an Agreement Among Underwriters which has been entered into among you and
the several other Underwriters.
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4. COVENANTS OF THE OFFERORS.
(a) The Offerors jointly and severally covenant and agree with the
several Underwriters that:
(i) The Offerors will use its best efforts to cause the
Registration Statement to become effective and will not, either before or after
effectiveness, file any amendment thereto or supplement to the Prospectus
(including a Prospectus filed pursuant to Rule 424(b) which differs from the
Prospectus on file at the time the Registration Statement becomes effective) of
which the Representatives shall not previously have been advised and furnished
with a copy or to which the Representatives shall have reasonably objected in
writing or which is not in compliance with the Act or Rules.
(ii) The Offerors will advise the Representatives promptly
of any request of the Commission or other securities regulatory agency ("Other
Securities Regulator") for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information, or of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the institution of any
proceedings for that purpose, or comparable action taken or initiated by any
Other Securities Regulator, and the Offerors will use their best efforts to
prevent the issuance of any stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Offerors will cooperate with the Representatives
in endeavoring to qualify the Preferred Securities for sale under the securities
laws of such jurisdictions (including foreign jurisdictions) as the
Representatives reasonably may have designated in writing, and will make such
applications, file such documents and furnish such information as may be
reasonably required for that purpose; provided however, the Offerors shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not so qualified or required
to file such a consent. The Offerors will, from time to time, prepare and file
such statements, reports, and other documents, as are or may be required to
continue such qualifications in effect for so long a period as the
Representatives may reasonably request for distribution of the Preferred
Securities.
(iv) The Offerors will deliver to, or upon the order of,
the Representatives, from time to time, as many copies of any preliminary
prospectus as the Representatives may reasonably request. The Offerors will
deliver to, or upon the order of, the Representatives on the Effective Date and
thereafter from time to time during the period when delivery of a Prospectus is
required under the Act as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Representatives may reasonably
request. The Offerors will deliver to the Representatives at or before the
Closing Date, one signed copy of the Registration Statement and all amendments.
thereto including all exhibits filed therewith, and will deliver to the
Representatives such number of copies of the Registration Statement, and of all
amendments thereto, as the Representatives may reasonably request.
(v) If during the period in which a Prospectus is
required by law to be delivered by an Underwriter or dealer any event shall
occur as a result of which, in the judgment of the Offerors or in the opinion of
counsel for the Underwriters, with the concurrence of the Offerors and its
counsel, it becomes necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances existing at the
time the Prospectus is delivered to a purchaser, not misleading, or, if it is
necessary at any time to amend or supplement the Prospectus to comply with any
law, the Offerors promptly will notify the Representatives and, subject to the
Representatives' prior review, prepare and file with the Commission and any
appropriate Other Securities Regulator an appropriate amendment or supplement to
the Prospectus so that the Prospectus as so amended or supplemented will not, in
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law.
(vi) The Offerors will make generally available to their
security holders in the manner contemplated by Rule 158(b) under the Act, as
soon as it is practicable to do so, but in any event not later than the
forty-fifth day after the fiscal quarter first occurring one year after the
Effective Date, a consolidated earnings statement of the Offerors (which need
not be audited) in reasonable detail covering a period of at least twelve
consecutive months beginning after the Effective
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<PAGE> 9
Date, which earnings statement shall satisfy the requirements of Section 11(a)
of the Act and will advise you in writing when such Statement has been so made
available.
(vii) The Offerors will, for a period of three (3) years
from the Closing Date, deliver to the Representatives copies of annual reports
and information furnished by the Offerors to their stockholders or filed with
any securities exchange pursuant to the requirements of such exchange or with
the Commission pursuant to the Act or the Exchange Act, as amended. The Offerors
will deliver to the Representatives similar reports with respect to any
significant subsidiaries, as that term is defined in the Rules, which are not
consolidated in the Offerors's financial statements.
(viii) As soon as the Offerors are advised thereof, they
will advise the Representatives, and confirm the advice in writing, that the
Registration Statement and any amendments shall have become effective.
(ix) The Offerors will use the net proceeds from the sale
of the Preferred Securities in the manner forth in the Prospectus under the
caption "Use of Proceeds."
(x) Other than as permitted by the Act and the Rules, the
Offerors will not distribute any prospectus or offering materials in connection
with the offering and sale of the Preferred Securities.
(xi) The Offerors will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Offerors, a registrar
for the Preferred Securities and will use their best efforts to establish and
maintain the listing of the Preferred Securities (and, subject to distribution
thereof, the Subordinated Debentures) on the American Stock Exchange.
(xii) Except as contemplated hereby or by the Prospectus,
the Offerors will not, for a period of 180 days after the Effective Date of the
Registration Statement, offer to sell, contract to sell, sell or otherwise
dispose of any shares of the Preferred Securities or securities convertible into
shares of the Preferred Securities without your prior written consent.
Furthermore, the Offerors will cause each executive officer and director of the
Offerors (as set forth in the Prospectus) to furnish to you, on or prior to the
execution of this Underwriting Agreement, a letter or letters, in form and
substance satisfactory to counsel for Underwriters, pursuant to which each such
person shall agree not to offer for sale, sell, distribute or otherwise dispose
of any shares of preferred securities of the Offerors during the 180 days
following the Effective Date, except with your written consent; provided
however, that nothing herein shall
prevent such persons from transferring or assigning their shares of the
Preferred Securities pursuant to a bona fide gift or pledge transaction.
The foregoing covenants and agreements shall apply to any successor of
the Offerors, including without limitation, any entity into which the Offerors
might convert or merge.
5. COSTS AND EXPENSES.
(a) Expenses.
The Company, as borrower under the Subordinated Debentures,
will pay all expenses incident to the performance of its, and the Trust's,
obligations under this Underwriting Agreement, including (i) the preparation,
printing and any filing of the Registration Statement (including financial
statements and any schedules or exhibits and any document incorporated therein
by reference) and of each amendment or supplement thereto, (ii) the preparation,
printing and delivery to the Underwriters of this Underwriting Agreement, the
Operative Documents and such other documents as may be required in connection
with the offering, purchase, sale and delivery of the Preferred Securities,
(iii) the preparation, issuance and delivery of the certificates for the
Preferred 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 Preferred Securities to the Underwriters, (iv) the fees and disbursements
of the Company's counsel, accountants and other advisors, (v) rating agency
fees, (vi) the fees and expenses of any trustee appointed under any of the
Operative Documents, including the fees and disbursements of
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counsel for such trustees in connection with the Operative Documents, (vii) the
qualification of the Preferred Securities under state blue sky laws, including
filing fees and the reasonable fees and actual accountable 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, (viii)
the printing and delivery to the Underwriters of copies of each preliminary
prospectus and of the Prospectus and any amendments or supplements thereto, if
any, (ix) the preparation, printing and delivery supplement thereto, if any, (x)
the fees and expenses of any transfer agent or registrar for the Preferred
Securities, (xi) the filing fees incident to the review by the NASD Regulation,
Inc. of the terms of the Underwriters' compensation for the sale of the
Preferred Securities, (xii) the fees and expenses incurred in connection with
the listing of the Preferred Securities on the American Stock Exchange and, if
applicable, the Debentures on a national securities exchange or automated
quotation system, (xiii) the fees and expenses of the Indenture Trustee,
including the fees and disbursements of counsel for the Indenture Trustee in
connection with the Indenture and the Debentures, (xiv) the fees and expenses of
the Property Trustee, including the fees and disbursements of counsel for the
Property Trustee in connection with the Trust Agreement and the Certificate of
Trust, (xv) the fees and expenses of the Guarantee Trustee, (xvi) any fees and
expenses in connection with the rating of the Preferred Securities and the
Subordinated Debentures and (xvii) the cost and charges of qualifying the
Preferred Securities with the Depositary Trust Company.
(b) Termination of Agreement.
If this Underwriting Agreement is terminated because the
conditions of Section 7 hereof are not satisfied or by the Underwriters in
accordance with the provisions of Section 6 or Section 10 of this Underwriting
Agreement, the Company shall reimburse the Underwriters for all of their actual
accountable out-of-pocket costs and expenses, including reasonable attorneys'
fees and out-of-pocket expenses reasonably incurred in connection with
investigating, marketing and proposing to market the Preferred Securities or in
contemplation of performing their obligations hereunder, but the Company shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Preferred
Securities.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the several Underwriters are subject to the
accuracy, as of the Closing Date, of the representations and warranties of the
Offerors contained herein, and to the performance by the Offerors of their
respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not
later than 8:30 A.M., Central Time, on _________, 2000, unless a later time and
date is agreed to by the Representatives, and no stop order or other order
suspending the effectiveness thereof or the qualification of the Preferred
Securities under the state securities or Blue Sky laws of any jurisdiction shall
have been issued and no proceeding for that purpose shall have been taken or, to
the knowledge of the Offerors, shall be contemplated or threatened by the
Commission or any Other Securities Regulator. If the Offerors have elected to
rely upon Rule 430A of the Rules, the price of the Preferred Securities and any
price-related information previously omitted from the effective Registration
Statement pursuant to such Rule 430A shall have been transmitted to the
Commission for filing Pursuant to Rule 424(b) of the Act within the prescribed
time period, and prior to the Closing Date the Offerors shall have provided
evidence satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been promptly
filed and declared effective in accordance with the requirements of Rule 430A
under the Act. All requests for additional information on the part of the
Commission or any other government or regulatory authority with jurisdiction (to
be included in the Registration Statement or Prospectus or otherwise) shall be
complied with to the satisfaction of the Commission or such authorities.
(b) The Representatives shall have received on the Closing Date
and any Option Closing Date the opinion of Haskell, Slaughter & Young, L.L.C.,
counsel for the Offerors, dated the Closing Date and any Option Closing Date,
addressed to the Underwriters in form and substance satisfactory to Ritchie &
Rediker, L.L.C., counsel to the Underwriters, 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
Delaware with corporate power and authority to own its properties and conduct
its
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business as described in the Prospectus; each of the Subsidiaries is validly
existing as a state banking corporation in good standing under the laws of the
jurisdiction of its organization, and has corporate power and authority to own
its properties and conduct its business as described in the Prospectus; each of
the Company and the Subsidiaries is duly qualified to transact business in all
jurisdictions in which the conduct of its business or the location of the
properties owned or leased by it requires such qualification; and all of the
outstanding shares of capital stock of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable, and except as
set forth in the Prospectus and the Registration Statement and except for
directors' qualifying shares, if any, no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to convert
any obligations into any shares of capital stock or of ownership interests in
the Subsidiaries are outstanding.
(ii) The Preferred Securities, Debentures and Guarantee of
the Company and the equity securities of the Trust conform in all material
respects to the description thereof contained in the Prospectus. The common
stock of the Company authorized and issued as set forth under the caption
"Capitalization" in the Prospectus, has been duly authorized and validly issued,
and is fully paid and nonassessable. There are no outstanding rights, options or
warrants to purchase from the Company, no other outstanding securities
convertible into or exchangeable for, and no commitments, plans or arrangements
to issue, any shares of capital stock of the Company or equity securities of the
Trust, except as described in the Prospectus in connection with the Company's
employee benefit plans.
(iii) The Registration Statement has become effective under
the Act and to the best knowledge of such counsel, no stop order proceedings
with respect thereto have been instituted or are pending or threatened under the
Act.
(iv) The Registration Statement, all preliminary
prospectuses, the Prospectus and each amendment or supplement thereto comply as
to form in all material respects with the requirements of the Act and the Rules,
except that such counsel need express no opinion as to the financial statements,
schedules and other statistical and financial information included therein.
(v) The statements under the captions "Capitalization,"
"Description of the Preferred Securities," "Description of the Subordinated
Debentures," "Description of Guarantee," "Relationship Among the Preferred
Securities, the Subordinated Debentures and the Guarantee," "United States
Federal Income Tax Consequences," "ERISA Considerations," and "Supervision and
Regulation," in the Prospectus insofar as such statements constitute a summary
of legal and regulatory matters and consequences, documents, instruments or
proceedings referred to therein are accurate descriptions of the matters
summarized therein and fairly present in all material respects the information
called for with respect to such legal and regulatory matters and consequences,
documents, instruments and proceedings, other than financial and statistical
data as to which said counsel expresses no opinion or belief.
(vi) Any holders of securities of the Offerors who have
rights to the registration of shares of preferred securities or other securities
because of the filing of the Registration Statement by the Offerors have waived
such rights in writing.
(vii) To the best knowledge of such counsel, after due
inquiry, except as set forth in the Registration Statement and Prospectus, no
holders of Preferred Securities or other securities of the Offerors have
registration rights with respect to such securities.
(viii) To the best knowledge of such counsel, after due
inquiry, there are no contracts or documents required to be filed as exhibits to
the Registration Statement or described in the Registration Statement or
Prospectus which are not so filed or described as required, and such contracts
and statements as are summarized in the Registration Statement or Prospectus are
fairly summarized in all material respects as required.
(ix) To the best knowledge of such counsel, after due
inquiry, there are no legal, regulatory or administrative proceedings pending or
threatened against the Offerors or any Subsidiary which may be material to the
earnings, business, affairs, properties, business prospects or operations of
either of the Offerors and/or the Subsidiaries taken as a whole except as set
forth in the Prospectus.
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(x) The Company has all requisite corporate power and
authority to issue, sell and deliver the Debentures in accordance with and upon
the terms and conditions set forth in this Underwriting Agreement and the
Indenture as described in the Prospectus. All corporate action required to be
taken by the Company for the authorization, issuance, sale and delivery of the
Debentures in accordance with such terms and conditions has been validly and
sufficiently taken. The Preferred Securities conform in all material respects to
the description thereof in the Registration Statement, the Prospectus and the
Trust Agreement. The Preferred Securities have been approved for quotation on
the American Stock Exchange subject to official notice of issuance. There are no
preemptive or, to the best of our knowledge, other rights to subscribe for or to
purchase, and other than as disclosed in the Prospectus, no restrictions upon
the voting or transfer of, any shares of capital stock or equity securities of
the Offerors or the Subsidiaries pursuant to the corporate charter, bylaws or
other governing documents or the Trust Agreement of the Offerors or the
Subsidiaries, or, to such counsel's knowledge, any agreement or other instrument
to which either Offeror or any of the Subsidiaries is a party or by which either
Offeror or any of the Subsidiaries may be bound, provided however that the
holders of the Preferred Securities will have limited voting rights as described
in the Prospectus.
(xi) The Company has all requisite corporate power to
enter into and perform its obligations under this Underwriting Agreement, and
this Underwriting Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
obligations of the Company enforceable in accordance with its terms, except as
the enforcement hereof or thereof may be limited by general principles of equity
and by bankruptcy, insolvency, reorganization, receivership, fraudulent
transfer, moratorium or other laws relating to or affecting creditors rights
generally, and except as the indemnification and contribution provisions hereof
may be limited under applicable laws and public policy and certain remedies may
not be available in the case of a non-material breach.
(xii) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by the Company. Each of the Indenture
and Guarantee is a valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, fraudulent transfer, moratorium or
other laws affecting the rights and remedies of creditors generally and of
general principles of equity and public policy
(xiii) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the benefits of the
Indenture and, assuming due authentication of such Debentures by the Trustee,
are legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, fraudulent transfer, moratorium and
other laws affecting the rights and remedies of creditors generally and of
general principles of equity and public policy.
(xiv) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, receivership, fraudulent
transfer, moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity and public policy.
(xv) To such counsel's knowledge, neither of the Offerors
nor any of the Subsidiaries is in breach or violation of, or default under, with
or without notice or lapse of time or both, its corporate charter, bylaws or
other governing documents or the Trust Agreement. The execution, delivery and
performance of this Underwriting Agreement and the consummation of the
transactions contemplated by this Underwriting Agreement, the Indenture, the
Guarantee, the Expense Agreement and the Trust Agreement do not and will not
conflict with, result in the creation or imposition of any lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or any of
the Subsidiaries or the Preferred Securities pursuant to, or constitute a breach
or violation of, or constitute a default under, with or without notice or lapse
of time or both, any of the terms, provisions or conditions of the charter,
bylaws or other governing document or the Trust Agreement of the Offerors or the
Subsidiaries, or to such counsel's knowledge, (i) any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license or any other agreement or instrument to which either Offeror
or the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or (ii) any order, decree, judgment,
franchise, license, permit, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or foreign,
known to such counsel having jurisdiction over the Offerors
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or the Subsidiaries or any of their respective properties. No authorization,
approval, consent or order of, or filing, registration or qualification with,
any person (including, without limitation, any court, governmental body or
authority) is required under Delaware or Connecticut law in connection with the
transactions contemplated by this Underwriting Agreement in connection with the
purchase and distribution of the Preferred Securities by the Underwriters.
(xvi) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in connection with the execution and
delivery of this Underwriting Agreement and the Trust Agreement and the
consummation of the transactions therein contemplated (other than required by
state securities and Blue Sky laws as to which such counsel need express no
opinion) except such as have been obtained or made, specifying the same.
(xvii) The Offerors and the Subsidiaries hold all material
licenses, certificates and permits from governmental authorities that are
necessary for the conduct of their respective businesses.
(xviii) Except as set forth in the Prospectus, to such
counsel's knowledge, there are no contractual encumbrances or restrictions, or
legal restrictions (excluding any encumbrances or restrictions of general
application to state banks contained in laws, rules and regulations of
applicable regulatory authorities) on the ability of the Subsidiaries (A) to pay
dividends or make any other distributions on its capital stock or to pay
indebtedness owed to the Company, (B) to make any loans or advances to, or
investments in, the Company or (C) to transfer any of its property or assets to
the Company.
(xix) 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 for United States federal income tax purposes, and as a result,
each beneficial owner of Preferred Securities (a "Securityholder") will be
treated as owning an undivided beneficial interest in the Debentures.
(xx) Unless the Company exercises its option to extend the
interest payment period, stated interest on the Debentures generally will be
included in income by a Securityholder at the time such interest income is paid
or accrued in accordance with the Securityholder's regular method of tax
accounting.
(xxi) Gain or loss will be recognized by a Securityholder
on a sale of Preferred Securities (including a redemption for cash) in an amount
equal to the difference between the amount realized (which for this purpose,
will exclude amounts attributable to accrued interest or original issue discount
not previously included in income) and the Securityholder's adjusted tax basis
in the Preferred Securities sold or so redeemed. Gain or loss recognized by the
Securityholder on Preferred Securities held for more than one year will
generally be taxable as long-term capital gain or loss.
In rendering the opinion above, such counsel may rely as to all matters
governed by Delaware law on the opinion of counsel referred to in paragraph (c)
of this Section 6. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come to the
attention of such firm which leads it to believe that the Registration Statement
or any amendment thereto at the time the Registration Statement or amendment
became effective or the Prospectus or any amendment or supplement thereto as of
their respective dates contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading (except that such counsel need express no view as to financial
statements, schedules and other financial information included therein). With
respect to such statement, such firm may state that their belief is based upon
the procedures set forth therein, but is without independent check and
verification.
(c) The Representatives shall have received on the Closing Date
and any Option Closing Date the opinion of Bingham & Dana, LLP, special
Connecticut counsel to the Offerors, shall have furnished to the Underwriters
their signed opinion, dated as of Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to such counsel, to the
effect that:
The Operative Agreements to which the Trust is a party each as set
forth in the opinion shall be herein referred to
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as the "Operative Documents".
(i) The Trust has been duly formed and is validly existing as a
statutory trust under the Connecticut Statutory Trust Act, Chapter 615 of Title
34 of the Connecticut General Statutes, Section 500, et seq. (the "Act").
(ii) The Trust Agreement constitutes a valid and binding
obligation of the Property Trustee enforceable against the Property Trustee in
accordance with the terms thereof.
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Depositor and the Administrative Trustees, enforceable against
the Depositor and the Administrative Trustees in accordance with its terms.
(iv) The Trust has the requisite trust power and authority to (a)
execute and deliver, and to perform its obligations under, the Operative
Documents, and (b) perform its obligations under such Operative Documents.
(v) Each of the Operative Documents to which the Trust is a party
constitutes a valid and binding obligation of the Trust, enforceable against the
Trust in accordance with the terms thereof.
(vi) The Preferred Securities have been duly authorized by the
Trust under the Trust Agreement, and the Preferred Securities, when duly issued,
executed and authenticated pursuant to this Agreement in accordance therewith,
will be validly issued, fully paid and nonassessable and will evidence undivided
beneficial interests in the assets of the Trust and will be entitled to the
benefits of the Trust Agreement.
(vii) The Common Securities have been duly authorized by the
Trust Agreement, and the Common Securities, when duly issued, executed and
authenticated to the Company in accordance with the Trust Agreement and the
Common Purchase Agreement and delivered and paid for in accordance therewith,
will be, validly issued, fully paid and nonassessable and will evidence
beneficial undivided interests in the assets of the Trust and will be entitled
to the benefits of the Trust Agreement.
(viii) Neither the execution, delivery or performance by the
Trust of the Operative Documents, the consummation by the Trust of the
transactions contemplated thereby, nor compliance by the Trust with any of the
terms and provisions thereof, (a) violates the Trust Agreement, or, to the best
of our knowledge, contravenes or will contravene any provision of, or
constitutes a default under, or results in any breach of, or results in the
creation of any lien (other than as permitted under the Operative Documents)
upon property of the Trust under, any indenture, mortgage, chattel mortgage,
deed of trust, conditional sales contract, bank loan or credit agreement,
license or other agreement or instrument, in each case known to us, to which it
is a party or by which it is bound or (b) violates any applicable Connecticut
law governing the Trust, or, to the best of our knowledge, any judgment or order
of any court or other tribunal, in each case known to us, applicable to or
binding on it.
(ix) No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in respect of,
any Connecticut governmental authority regulating the Trust is required for the
execution, delivery, validity or performance of, or the carrying out by, the
Trust of any of the transactions contemplated by the Operative Documents, other
than any such consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
(x) The holders of the Preferred Securities, will be entitled to
the same limitation of personal liability extended to shareholders of domestic
corporations organized under the laws of the State of Connecticut.
Such opinion may state that it is limited to the laws of the
State of Connecticut and the opinion expressed in paragraph (iii) above is
subject to the effect upon the Trust Agreement of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance 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.
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(d) The Representatives shall have received on the Closing Date
and any Option Closing Date the opinion of Bingham & Dana, LLP, special counsel
to the State Street Bank and Trust Company, as the Property Trustee, Indenture
Trustee and the Guarantee Trustee, shall have furnished to the Underwriters
their signed opinion, dated as of Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to such counsel, to the
effect that:
The Operative Agreements to which State Street is party as well as
certain other documents each set forth in the opinion are herein referred to as
the "Operative Documents".
(i) State Street is a state chartered trust company, validly
formed under the laws of the Commonwealth of Massachusetts, is authorized to
transact the business of banking under the laws of the State and has the
requisite corporate and trust power and authority (a) to execute, deliver and
perform its obligations under the Operative Documents to which it is a party in
its individual capacity and (b) as Property Trustee, Indenture Trustee and
Guarantee Trustee, as the case may be, to execute, deliver and perform its
obligations (on behalf of the Bank Trust) under the Operative Documents to which
the Property Trustee (on behalf of the Bank Trust), Indenture Trustee and the
Guarantee Trustee, as the case may be, is a party.
(ii) State Street, individually, and in its capacity as Property
Trustee, Guarantee Trustee and Indenture Trustee, as the case may be, has duly
authorized, executed and delivered the Operative Documents to which the Property
Trustee, Indenture Trustee and the Guarantee Trustee, as the case may be, is
party. Each of the Indenture and the Guarantee constitutes a valid and binding
obligation of State Street, individually and in its capacity as Indenture
Trustee and as Guarantee Trustee, as the case may be, enforceable in accordance
with the terms thereof.
(iii) The Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
(iv) Neither the execution, delivery or performance by State Street
or the Trustees, as the case may be, of the Operative Documents, the
consummation by State Street or the Trustees, as the case may be, of the
transactions contemplated thereby, nor compliance by State Street or the
Trustees, as the case may be, with any of the terms and provisions thereof, (a)
requires any approval of its stockholders, or, to the best of our knowledge, any
consent or approval of or the giving of notice to any holders of any
indebtedness or obligations (or any trustees for such holders) of it known to
us, (b) violates its charter documents or by-laws, or, to the best of our
knowledge, contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the creation of any
lien (other than as permitted under the Operative Documents) upon its property
under, any indenture, mortgage, chattel mortgage, deed of trust, conditional
sales contract, bank loan or credit agreement, license or other agreement or
instrument, in each case known to us, to which it is a party or by which it is
bound or (c) violates any applicable State law governing the banking or trust
powers of State Street or the Trustees, as the case may be, or, to the best of
our knowledge, any judgment or order of any court or other tribunal, in each
case known to us, applicable to or binding on it. No consent, approval, order or
authorization of, giving of notice to, or registration with, or taking of any
other action in respect of, any state governmental authority regulating the
banking or trust powers of State Street or the Trustees, as the case may be, is
required for the execution, delivery, validity or performance of, or the
carrying out by, State Street or the Trustees, as the case may be, of any of the
transactions contemplated by the Operative Documents, other than any such
consent, approval, order, authorization, registration, notice or action as has
been duly obtained, given or taken.
Such opinion may state that it is limited to the laws of the
Commonwealth of Massachusetts and the opinion expressed in paragraph (iii) above
is subject to the effect upon the Trust Agreement of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance 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.
(e) The Representatives shall have received from Ritchie &
Rediker, L.L.C., counsel to the Underwriters, an opinion dated the Closing Date,
substantially to the effects specified in subparagraphs (iii) and (iv) of
paragraph (b) of
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<PAGE> 16
this Section 6, and that the Company is a validly organized and existing
corporation under the laws of the State of Delaware. In rendering such opinion,
Ritchie & Rediker, L.L.C. may rely as to all matters governed other than by the
Federal laws on the opinion of counsel referred to in paragraph (b) of this
Section 6. in addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that the Registration Statement, the
Prospectus or any amendment or supplement thereto as of their respective dates
contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading (except
that such counsel need express no view as to financial statements, schedules and
other financial information included therein). With respect to such statement,
such firm may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(f) The Representatives shall have received at or prior to the
Closing Date from Ritchie & Rediker, L.L.C. a memorandum or summary, in form and
substance satisfactory to the Representatives, with respect to the qualification
for offering and sale by the Underwriters of the underwritten Preferred
Securities under the securities laws of such states and foreign jurisdictions as
the Representatives may reasonably have requested.
(g) At the time this Agreement is executed and at the Closing Date
and the Option Closing Date, as the case may be, the Representative shall have
received a letter, addressed to the Underwriters, and in form and substance
reasonably satisfactory to Representative, from Ernst & Young LLP, independent
public accountants for the Company, dated the date of delivery:
(i) confirming that they are, and during the period
covered by their report(s) included in the Registration Statement and the
Prospectus were, independent certified public accountants with respect to the
Company within the meaning of the Act and the published Rules and Regulations
and stating that the disclosure under the heading entitled "Experts" in the
Registration Statement is correct insofar as it relates to them;
(ii) stating that, in their opinion, the financial
statements and the footnotes thereto of the Company included in the Registration
Statement examined by them comply in form and in all material respects with the
applicable accounting requirements of the Act and the related published rules
and regulations;
(iii) stating that, on the basis of procedures (but not an
examination made in accordance with generally accepted auditing standards)
consisting of a reading of the latest available unaudited interim consolidated
financial statement of the Company (with an indication of the date of the latest
available unaudited interim financial statements), a reading of the latest
available minutes of the shareholders and Boards of Directors of the Company and
committees of such Board of Directors, inquiries to certain officers and other
employees of the Company responsible for financial and accounting matters, and
other specified procedures and inquiries, nothing has come to their attention
that caused them to believe that: (A) any unaudited financial statements and
schedules of the Company included in the Registration Statement and Prospectus
do not comply in form and in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations under the Act or the Exchange Act or are not
fairly presented in conformity with generally accepted accounting principles
(except to the extent that certain footnote disclosures regarding any stub
period may have been omitted in accordance with the applicable rules and
regulations of the Commission under the Exchange Act) applied on a basis
consistent with that of the audited financial statements appearing therein, (B)
there was any change in the capital stock or long-term debt of the Company or
any decrease in the net current assets or shareholders' equity of the Company as
of the date of the latest available monthly financial statements of the Company
as of a specified date not more than five business days prior to the date of
such letter, each as compared with the amounts shown in the June 30, 2000
balance sheet included in the Registration Statement and Prospectus, other than
as properly described in the Registration Statement and Prospectus or any change
or decrease (which shall be set forth therein) which, in the sole discretion of
the Representative, the Representative shall accept), or (C) that there was a
net decrease in consolidated net interest income, consolidated net income of the
Company during the period from June 30, 2000 to the date of the latest available
monthly financial statements of the Company or to a specified date not more than
five business days prior to the date of such letter, each as compared to the
corresponding period in 1999, other than as properly described in the
Registration Statement and Prospectus or any decrease (which shall be set forth
therein) which, at the sole discretion of
16
<PAGE> 17
the Representative, the Representative shall accept; and
(iv) stating that they have compared specific numerical
data and financial information pertaining to the Company set forth in the
Registration Statement (including, but not limited to, the number of
shareholders of the Company and the number of issued and outstanding shares of
the common stock of the Company as of June 30, 2000), which have been specified
by the Representative prior to the date of this Agreement, to the extent that
such data and information may be derived from the general accounting records of
the Company, and excluding any questions requiring any interpretation by legal
counsel with results obtained from the application of specified readings,
inquiries, and other appropriate procedures (which procedures do not constitute
an examination in accordance with generally accepted auditing standards) set
forth in the letter, and found them to be in agreement.
(h) The Representatives shall have received on the Closing Date
and any Option Closing Date a certificate of the Chairman of the Board of
Directors and the Chief Financial Officer of the Company, respectively, to the
effect that, as of the Closing Date and any Option Closing Date, each of them
severally represents as follows:
(i) that (A) the representations and warranties of the
Company in this Underwriting Agreement are true and correct on and as of the
Closing Date and any Option Closing Date, as the case may be, and (B) the
Company has complied with all the agreements and has satisfied all of the
conditions on its part to be performed or satisfied at or prior to the Closing
Date and any Option Closing Date, as the case may be.
(ii) that (A) the Registration Statement has become
effective under the Act; (B) no stop order suspending the effectiveness of the
Registration Statement or the use or effectiveness of the Prospectus has been
issued; (C) no proceedings for such purpose have been taken or, to his
knowledge, are contemplated by the Commission or any Other Securities Regulator;
and (D) all requests for additional information on the part of the Commission or
any Other Securities Regulator have been complied with.
(iii) He has carefully examined the Registration Statement
and the Prospectus and, in his opinion, since the Effective Date, no event has
occurred which should have been set forth in a supplement to or an amendment to
the Prospectus which has not been so set forth in such supplement or amendment.
(i) The Underwriters shall have received from an authorized
representative of the Trust on the Closing Date, a certificate dated as of the
Closing Date, to the effect as follows:
(i) the representations and warranties of the Trust in
this Underwriting Agreement are true and correct as though made on and as of the
Closing Date (and, if applicable, the Option Closing Date);
(ii) the Trust has complied with all the agreements and
satisfied all the conditions required by this Underwriting Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date and since
the most recent date as of which information is given in the Prospectus, except
as contemplated by the Prospectus, the Trust has not incurred any liabilities or
obligations, direct or contingent, or entered into any transactions not in the
ordinary course of business and there has not been any adverse change in the
condition (financial or otherwise) of the Trust.
(j) The Offerors shall have furnished to the Representatives such
additional information and further certificates and documents confirming the
representations and warranties contained herein and related matters as the
Representatives may reasonably have requested.
(k) On the Closing Date, the Underwriters shall have received duly
executed counterparts of the Trust Agreement, the Guarantee, the Indenture and
the Expense Agreement.
(l) Since the respective dates as of which information is given in
the Prospectus, there shall not have occurred any material adverse change in the
condition (financial or otherwise), or in the earnings, business, affairs,
properties, business prospects or results of operations of the Offerors or any
Subsidiary, whether or not arising in the ordinary course
17
<PAGE> 18
of business.
The opinions and certificates mentioned in this Underwriting Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Representatives and Ritchie &
Rediker, L.L.C. counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Underwriting
Agreement to be fulfilled, the obligations of the Underwriters hereunder may be
terminated by the Representatives by notifying the Offerors of such termination
in writing or by confirmed telefax at or prior to the Closing Date. In such
event, the Offerors, and the Underwriters shall not be under any obligation to
each other (except to the extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE OFFERORS.
The obligations of the Offerors to sell and deliver the Preferred
Securities are subject to the conditions that (a) at or before 8:30 A.M.,
Central Time, on ___________, 2000, or such later time and date as the Offerors
and the Representatives may from time to time consent to in writing or by
confirmed telefax, the Registration Statement shall have become effective, and
(b) at the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued or proceedings therefor initiated
or threatened. If either of the conditions hereinabove provided for in this
Section 7 shall not have been fulfilled when and as required by this
Underwriting Agreement to be fulfilled, this Underwriting Agreement may be
terminated by the Offerors by notifying the Representatives of such termination
in writing or by confirmed telefax at or prior to the Closing Date.
8. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act, the Rules and the Exchange Act from and against
any and all losses, claims, damages, liabilities, joint or several, and all
expenses (including costs of investigation and legal expenses) to which such
Underwriter or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions or proceedings in respect thereof) arise out of or are based upon any
material breach of any representation, warranty, agreement or covenant of the
Offerors herein, or any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading; and the Offerors will reimburse each Underwriter and
each such controlling person for legal and other expenses incurred in connection
with investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that the Offerors will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement, or alleged untrue statement, or
omission or alleged omission made in the Registration Statement, any preliminary
prospectus, the Prospectus, or such amendment or supplement, in reliance upon or
in conformity with written information furnished to the Offerors by or through
the Representatives specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which the Offerors may
otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Offerors, each of their directors, each of their officers who have signed the
Registration Statement, and each person, if any, who controls the Offerors,
within the meaning of the Act, the Rules and the Exchange Act, from and against
any losses, claims, damages, liabilities or expenses to which the Offerors or
any such director, officer, or controlling person may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon any
material breach of any agreement of the Underwriters herein, or any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made; and will reimburse any legal or
other expenses reasonably incurred by the Offerors or any such director,
18
<PAGE> 19
officer, or controlling person in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; provided, however,
that each Underwriter will be liable in such case only to the extent that such
untrue statement, or alleged untrue statement or omission or alleged omission
has been made in the Registration Statement, any preliminary prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Offerors by or through the
Representatives expressly for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action or proceeding, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 8, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action or proceeding is
brought against any party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding the foregoing, the
indemnified party, at any time after such assumption of defense by the
indemnifying party, shall be entitled to participate in such defense and to
engage separate counsel (at the indemnifying party's expense) if, in the
indemnified party's reasonable belief, a conflict of interest exists with
counsel engaged by the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 8 is for
any reason held to be unavailable to an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and expenses (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 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 parties in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities, expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Offerors on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Offerors bears to the
underwriting discounts and commissions received by the Underwriters. The
relative fault of a party shall be determined by reference to, among other
things, whether the true or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by each party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any such action or claim.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the 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 in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Preferred Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute shall be several in proportion to their respective
underwriting obligations and not joint.
19
<PAGE> 20
(e) In any proceeding relating to the Registration Statement, any
preliminary prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements of the Offerors and
officers or trustees of the Offerors herein or in certificates delivered
pursuant hereto, and the indemnity and contribution agreements contained in
Section 8 hereof, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriters or any controlling
person, or by or on behalf of the Offerors or any of their officers, trustees,
directors or controlling persons, and shall survive delivery of the Underwritten
Preferred Securities and, if applicable, the Option Preferred Securities to the
Representatives or termination of this Underwriting Agreement.
10. DEFAULT BY UNDERWRITERS.
If any Underwriter shall fail to purchase and pay for the Preferred
Securities which such Underwriter has agreed to purchase and pay for hereunder
(otherwise than by reason of any default on the part of the Offerors), you, as
Representatives of the Underwriters, shall use your best efforts to procure
within twenty-four hours thereafter one or more of the other Underwriters, or
any others, to purchase from the Offerors such amounts as may be agreed upon and
upon the terms set forth herein, the Preferred Securities which the defaulting
Underwriter or Underwriters failed to purchase. If during such twenty-four hours
you, as Representatives, shall not have procured such other Underwriters, or any
others, to purchase the Preferred Securities agreed to be purchased by the
defaulting Underwriter or Underwriters, then (a) if the aggregate number of
Preferred Securities with respect to which such result shall occur does not
exceed 10% of the Preferred Securities which the Underwriters are obligated to
purchase hereby, the other Underwriters shall be obligated, severally, in
proportion to the respective number of shares which they are obligated to
purchase hereunder, to purchase the Preferred Securities which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate number
of Preferred Securities with respect to which such default shall occur exceeds
10% of the Preferred Securities covered hereby, the Offerors or you, as
Representatives of the Underwriters will have the right, by written notice given
within the next twenty-four hour period to the parties to this Underwriting
Agreement, to terminate this Underwriting Agreement without liability on the
part of the non-defaulting Underwriters or of the Offerors except to the extent
provided in Section 8 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 10, the time of closing may be
postponed for such period, not to exceed seven days, as you, as Representatives,
may determine in order that the required changes in the Registration Statement
or in the Prospectus or in any other documents or arrangements may be effected.
The term "Underwriters" includes any person substituted for a defaulting
Underwriter. Any action taken under Section 10 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Underwriting Agreement.
11. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered or telefaxed and confirmed
as follows: if to the Underwriters, to Sterne, Agee & Leach, Inc., 800 Shades
Creek Parkway, Suite 700, Birmingham, AL 35209, Attention: James S. Holbrook,
Jr.; with a copy to William K. Holbrook, Ritchie & Rediker, L.L.C., 312 North
23rd Street, Birmingham, AL 35203-3878; if to the Offerors, to The Banc
Corporation, 17 North 20th Street, Birmingham, Alabama 35203, Attention: James
A. Taylor, Jr.; with a copy to Robert E. Lee Garner or F. Hampton McFadden,
Haskell, Slaughter & Young, L.L.C., 1200 AmSouth/Harbert Plaza, 1901 Sixth
Avenue North, Birmingham, Alabama 35203-2618, if to any of the Trustees, to the
following addresses as applicable: Administrative Trustees: 17 North 20th
Street, Birmingham, Alabama 35203 and Property Trustee: State Street Bank and
Trust, 2 Avenue de Lafayette, Boston, Massachusetts 02111-1724, Attention:
Corporate Trust. All notices hereunder shall be effective upon receipt by the
party to which it is addressed.
20
<PAGE> 21
12. TERMINATION.
This Underwriting Agreement may be terminated by notice to the Offerors
as follows:
(a) at any time prior to the earlier of (i) the time the Preferred
Securities are released by you for sale by notice to the Underwriters, or (ii)
11:30 A.M., Central Time, on the first business day following the Effective
Date;
(b) as provided in Sections 6 and 10 of this Underwriting
Agreement.
(c) by the Representative at any time prior to the Closing Date or
the Option Closing Date, as the case maybe, by giving notice to the Company,
and, if exercised, the Over-allotment Option, at any time prior to the Option
Closing Date, by giving notice to the Company in the event of the following: (i)
if any domestic or international event, act, or occurrence has materially and
adversely disrupted, or, in the reasonable opinion of the Representative, will
in the immediate future materially and adversely disrupt, the securities
markets; or (ii) if there shall have been a general suspension of, or a general
limitation on prices for, trading in securities on the New York Stock Exchange
or the American Stock Exchange or in the over-the-counter market; or (iii) if
there shall have been an outbreak or increase in the level of major hostilities
or other national or international calamity; or (iv) if a banking moratorium has
been declared by a state or federal authority; or (v) if a moratorium in foreign
exchange trading by major international banks or persons has been declared; or
(vi) if there shall have been a material interruption in the mail service or
other means of communication within the United States; or (vii) if the Company
shall have sustained a material or substantial loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage, or other calamity or malicious act,
whether or not such loss shall have been insured, or from any labor dispute or
court or government action, order, or decree, which will, in the reasonable
opinion of the Representative, make it inadvisable to proceed with the offering,
sale, or delivery of the Underwritten Preferred Securities or the Option
Preferred Securities, as the case may be; or (viii) if any material governmental
restrictions shall have been imposed on trading in securities in general, which
restrictions are not in effect on the date hereof, or (ix) if there shall be
passed by the Congress of the United States or by any state legislature any act
or measure, or adopted by any governmental body or authoritative accounting
institute or board, or any governmental executive, any orders, rules, or
regulations, which the Representative believes likely to have a material adverse
effect on the business, financial condition, or financial statements of the
Company or the market for the Preferred Securities; or (x) if there shall have
been such material and adverse change in the market for the Company's securities
or securities in general or in political, financial, or economic conditions as
in the judgment of the Representative makes it inadvisable to proceed with the
offering, sale, and delivery of the Underwritten Preferred Securities or the
Option Preferred Securities, as the case may be, on the terms contemplated by
the Prospectus.
(d) If the Representative elects to prevent this Agreement from
becoming effective, as provided in this Section 12, or to terminate this
Agreement pursuant to Section 6 of this Agreement or this Section 10, the
Representative shall notify the Company promptly by telephone, telex, or
telegram, confirmed by letter. If, as so provided, the Company elects to prevent
this Agreement from becoming effective or to terminate this Agreement, the
Company shall notify the Representative promptly by telephone, telex, or
telegram, confirmed by letter.
(e) Notwithstanding anything herein to the contrary, if this
Agreement shall not become effective by reason of the election of the Company
pursuant to Section 12(a) or if this Agreement shall terminate or shall
otherwise not be carried out by December 31, 2000 by reason of any failure on
the part of the Company to perform any covenant or agreement of this Agreement
or satisfy any condition of this Agreement by it to be performed or satisfied,
the sole liability of the Company to the several Underwriters, in addition to
the obligations the Company assumed pursuant to Section 6, will be to reimburse
the several Underwriters for such reasonable out-of-pocket expenses (including
the reasonable fees and disbursements of their counsel) as shall have been
incurred by them in connection with this Agreement or the proposed offer, sale,
and delivery of the Underwritten Preferred Securities and the Option Preferred
Securities, and, upon demand, the Company agrees to pay promptly the full amount
thereof to the Representative for the respective accounts of the Underwriters up
to a maximum reimbursement of $75,000. Anything in this Agreement to the
contrary notwithstanding other than Section 12(f), if this Agreement shall not
be carried out within the time specified herein for any reason other than the
failure on the part of the Company to perform any covenant or agreement or
satisfy any condition of this Agreement by it to be performed or satisfied, the
Company shall have no liability to the several Underwriters other than for
obligations assumed by the Company pursuant to Section 6.
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<PAGE> 22
(f) Notwithstanding any election hereunder or any termination of
this Agreement, and whether or not this Agreement is otherwise carried out, the
provisions of Sections 5(a), 6, 8, 10 and 13 shall not be in any way affected by
such election or termination or failure to carry out the terms of this Agreement
or any part hereof.
13. SUCCESSORS.
This Underwriting Agreement has been and is made solely for the benefit
of the Underwriters, the Offerors and their respective successors, executors,
administrators, heirs, and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. The term "Successors" shall not include any purchaser of
the Preferred Securities merely because of such purchase.
14. MISCELLANEOUS.
(a) The reimbursement, indemnification and contribution agreements
contained in this Underwriting Agreement and the representations, warranties and
covenants of the Offerors in this Underwriting Agreement shall remain in full
force and effect regardless of (a) any termination of this Underwriting
Agreement, (b) any investigation made by or on behalf of the Underwriters or
controlling person or (c) delivery of any payment for the Preferred Securities
under this Underwriting Agreement.
(b) This Underwriting Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(c) This Underwriting Agreement shall be governed by, and
construed in accordance with, the laws of the State of Alabama applicable to
contracts made and performed within such State.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Offerors and the several
Underwriters in accordance with its terms.
Very truly yours,
THE BANC CORPORATION TBC CAPITAL TRUST
By: By:
-------------------------------------- --------------------------------
James A. Taylor, Sr. James A. Taylor, Sr.
Its: Chairman and Chief Executive Officer Its: Administrative Trustee
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
STERNE, AGEE & LEACH, INC.,
As Representative of the Several Underwriters named in Schedule I
By:
-------------------------------------
James S. Holbrook, Jr.
Its: Chairman and CEO
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<PAGE> 23
SCHEDULE I
TOTAL
NUMBER
OF PREFERRED SECURITIES
UNDERWRITERS TO BE
------------ PURCHASED
-----------------------
<TABLE>
<S> <C>
Sterne, Agee & Leach, Inc. .................
[Insert Syndicate]..........................
Total ............................. 800,000
</TABLE>
23
