ATLANTIC PREFERRED CAPITAL CORPORATION
___% Noncumulative Exchangeable Preferred Stock, Series A
(Liquidation Preference $25.00 Per Share)
Exchangeable Into Preferred Stock of
ATLANTIC BANK AND TRUST COMPANY
UNDERWRITING AGREEMENT
______________, 1999
Friedman, Billings, Xxxxxx & Co., Inc.
Advest, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx Inc.
As Representatives of the several Underwriters
named in Schedule A hereto
c/o Friedman, Billings, Xxxxxx & Co., Inc.
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Atlantic Preferred Capital Corporation, a Massachusetts corporation (the
"Company"), and Atlantic Bank and Trust Company, a Massachusetts-chartered trust
company (the "Bank"), hereby confirm their agreement with you and each of the
other Underwriters named in Schedule A hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 9 hereof), for whom Friedman, Billings, Xxxxxx & Co., Inc.
("FBR") and Advest, Inc. are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of the Company's __% Noncumulative Exchangeable
Preferred Stock, Series A (the "Series A Preferred Stock") set forth in said
Schedule A, and with respect to the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 180,000 additional shares of such preferred stock
to cover over-allotments, if any. The 1,200,000 shares of Series A Preferred
Stock (the "Firm Shares") to be purchased by the Underwriters and all or any
part of the 180,000 shares of Series A Preferred Stock subject to the option
described in Section 2(b) hereof (the "Option Shares") are hereinafter called,
collectively, the "Shares." Each share of the Series A Preferred Stock is
exchangeable, on the terms to be set forth in the Company's Restated Articles of
Organization, into one-tenth of one share of the Bank's __% Noncumulative
Preferred Stock, Series C (the "Bank Preferred Stock ").
The Company understands that the Underwriters propose to make a public
offering of the Shares as soon as the Representatives deem such offering
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-11 (no. 333-66677) covering the
registration of the Shares under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus in
the form first furnished to the Underwriters for use in connection with the
offering of the Shares is herein called the "Prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
The Bank has prepared a preliminary offering circular relating to the
Bank Preferred Shares which has been annexed to, and incorporated by reference
in, the preliminary prospectus and filed with the Commission as part of the
Registration Statement. The Bank will promptly prepare an offering circular
(which includes the information (the "Pricing Information") excluded from the
preliminary offering circular) to be annexed to and incorporated by reference in
the Prospectus. Each offering circular used before the time the Registration
Statement is declared effective by the Commission and any offering circular that
omits the Pricing Information that is used after such effectiveness and prior to
the date hereof is herein called a "preliminary offering circular." The offering
circular, as amended at the time the Registration Statement becomes effective
(and including the Pricing Information), is hereinafter referred to as the
"Offering Circular" except that if any amended or supplemented offering circular
shall be provided to the Underwriters by the Bank for use in connection with the
offering of the Bank Preferred Shares which differs from the Offering Circular
at the time the Registration Statement became effective, the term "Offering
Circular" shall refer to such newly amended or supplemented offering circular
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from and after the time it is first provided to the Underwriters for such use.
SECTION 1. (a) The Company and the Bank represent and warrant to each
Underwriter as follows:
(i) Based solely on oral advice provided to the Company by the
Commission, each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act; the Company has received no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462 (b) Registration Statement and, to the Company's and the Bank's
knowledge, no proceedings for that purpose have been instituted or are pending
or have been threatened by the Commission; and any request on the part of the
Commission to the Company for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto became
effective, and at the Closing Time (and, if any Option Shares are purchased, at
the Date of Delivery), the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any Option
Shares are purchased, at the Date of Delivery), included or will include an
untrue statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The representations
and warrantees in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through FBR expressly for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(ii) To the Company's knowledge, Wolf & Company, P.C., the
accountants who certified certain financial statements of the Company included
in the Registration Statement, are independent public accountants within the
meaning of the 1933 Act and the 1933 Act Regulations.
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(iii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, results of operations or business affairs of the Company, whether or
not arising in the ordinary course of business, (B) there have been no
transactions entered into by the Company, other than those in the ordinary
course of business, which are material with respect to the Company, and (C)
there has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock other than as set forth or
contemplated in the Prospectus.
(iv) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of Massachusetts
and has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure so to qualify or to be in good standing would not have a material
adverse effect on the condition, financial or otherwise, results of operations
or business affairs (a "Material Adverse Effect") of the Company.
(v) The Company does not own or control, directly or indirectly,
any corporation, association or other entity.
(vi) As of September 30, 1998, the authorized, issued and
outstanding capital stock of the Company was as set forth in the Prospectus in
the column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement). The shares of issued
and outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by the Bank
or a wholly-owned subsidiary of the Bank free and clear of any liens, charges or
encumbrances; none of the outstanding shares of capital stock of the Company was
issued in violation of any preemptive or other similar rights of any
securityholder of the Company.
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The common stock of the Company, par value $0.01 per share
(the "Common Stock'), conforms in all material respects to all statements
relating thereto contained or incorporated by reference in the Prospectus.
(ix) The Shares have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement against payment of the consideration set
forth herein, will be validly
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issued and fully paid and non-assessable; the Shares will upon issuance conform
in all material respects to the statements relating thereto contained in the
Prospectus; the relative rights, preferences, interests and powers of the Shares
are as to be set forth in the Company's Restated Articles of Organization; no
holder of the Shares will be subject to personal liability by reason of being
such a holder; and the issuance of the Shares is not subject to the preemptive
or other similar rights of any securityholder of the Company.
(x) The Company is not in violation of its charter or by-laws or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound, or to which any of the
property or assets of the Company is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the Shares and the
use of the proceeds from the sale of the Shares as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its assets, properties or operations.
(xi) There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company or the
Bank, threatened, against or affecting the Company, which is required to be
disclosed in the Registration Statement (other than as disclosed therein), or,
if adversely decided, which would be expected to result in a Material Adverse
Effect, or if adversely decided, which would reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder.
(xii) Each of the Master Purchase Agreement, the Master Service
Agreement and the Advisory Agreement, in each case between the Company and the
Bank, has been duly authorized, executed and delivered by the Company and the
Bank and constitutes a valid and legally binding obligation of the Company and
the Bank and is enforceable in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or similar laws in effect
which affect the
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enforcement of creditors rights generally and (ii) general principles of equity,
whether considered in a proceeding at law or in equity.
(xiii) There are no contracts or documents which are required to
be described in the Registration Statement or the Prospectus or to be filed as
exhibits thereto which have not been so described and filed as required.
(xiv) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Shares hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already obtained or as
may be required (A) from the Commissioner of Banks of the Commonwealth of
Massachusetts, (B) under the 1933 Act or the 1933 Act Regulations, the Security
Exchange Act of 1934, as amended (the "1934 Act"), or state securities laws, (C)
the clearance of the offering with the National Association of Securities
Dealers, Inc. ("NASD"), and (D) with respect to the filing of the Company's
Restated Articles of Organization.
(xv) The Company possesses such governmental or regulatory
permits, licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") necessary to conduct the business now operated by it
except where the failure to possess would not be reasonably expected to have a
Material Adverse Effect; the Company is in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so to
comply would not be reasonably expected to, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and effect would
not be reasonably expected to have a Material Adverse Effect; and the Company
has not received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xvi) The Company is not, and upon the issuance and sale of the
Shares as herein contemplated and the application of the net proceeds therefrom
as described in the Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xvii) There are no persons with registration rights or other
similar rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(xviii) The Company is organized and carries on its business so
as to enable it to qualify as "real estate investment trust" (a "REIT") under
Sections 856 through 860 of the
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Internal Revenue Code of 1986, as amended (the "Code"), and no transaction or
other event has occurred which would cause the Company not to enable it to
qualify as a REIT for its current taxable year or for future taxable years.
(xix) An application to list the Shares on the Nasdaq National
Market has been filed and notification has been received that such listing has
been approved, subject to notice of issuance and sale of the Shares.
(b) The Bank represents and warrants to each Underwriter as follows:
(i) The Offering Circular, at the respective times the
Registration Statement, the Rule 462(b) Registration Statement and any
post-effective amendments thereto became effective, at the date hereof and at
all times subsequent thereto up to the Closing Time (and, if any Option Shares
are purchased, at the Date of Delivery), did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the representations and
warranties in this paragraph (b) (i) shall not apply to statements in or
omissions from the Offering Circular made in reliance upon and in conformity
with information furnished to the Bank in writing by any Underwriter through FBR
expressly for use therein.
(ii) Attachments A and B to the Offering Circular, at the time
they were filed with the Federal Deposit Insurance Corporation ("FDIC") complied
in all material respects with the requirements of the FDIC and, when read
together with the other information in the Offering Circular, at the time the
Registration Statement, the Rule 462(b) Registration Statement and any
post-effective amendments thereto became effective, at the date of the Offering
Circular and at the Closing Time (and if any Option Securities are purchased, at
the Date of Delivery), did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein in the light of the circumstances under which they were made
not misleading.
(iii) To the Bank's knowledge, Wolf & Company, P.C., the
accountants who have certified the consolidated financial statements of the Bank
included in the Offering Circular, are and were at all relevant times, with
respect to the Bank and its subsidiaries, independent public accountants within
the meaning of the 1933 Act and the 1933 Act Regulations.
(iv) The Bank does not own or control, directly or indirectly,
any corporation, association or other entity, except for CHB Realty Corp.
("CHB"), Dolphin Capital Corporation ("Dolphin"), and the Company (each , a
"Subsidiary"; the Bank and the Subsidiaries taken as a whole being hereinafter
referred to as "Atlantic"). The Bank has been duly organized and is validly
existing in good standing as a Massachusetts-chartered trust company, with full
corporate power and authority to own and lease its properties and conduct its
business as described in the Prospectus and the Offering Circular; each of CHB
and Dolphin is a corporation duly organized,
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validly existing and in good standing as a Massachusetts corporation with full
corporate power and authority to own and lease its properties and conduct its
business as described in the Offering Circular; all issued and outstanding
shares of each of CHB and Dolphin have been duly authorized and are validly
issued and non-assessable and are owned, directly or indirectly, by the Bank
free and clear of all claims, liens, charges and encumbrances; the Bank and each
of CHB and Dolphin are in possession of and operating in compliance with all
authorizations, licenses, permits, consents, certificates and orders material to
the conduct of their respective businesses as described in the Prospectus and
the Offering Circular, all of which are valid and in full force and effect; the
deposit accounts of the Bank are insured by the FDIC to the fullest extent
provided by law, and no proceedings for the termination or revocation of such
insurance are pending or, to the knowledge of the Bank, threatened by the FDIC
or any other entity; each of the Bank, CHB and Dolphin is duly qualified to do
business and in good standing in each jurisdiction in which the ownership or
leasing of properties or the conduct of its business requires such
qualification, except for jurisdictions in which the failure to so qualify would
not have a Material Adverse Effect on Atlantic; and to the Bank's knowledge no
proceeding has been instituted in any such jurisdiction, revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.
(v) The Bank had at September 30, 1998 authorized and outstanding
capital stock as set forth in the Consolidated Balance Sheets included in
Attachment A to the Offering Circular; such shares of capital stock have been
duly authorized and validly issued, are fully paid and non-assessable, have been
issued in compliance with all federal and state securities laws, were not issued
in violation of or subject to any preemptive rights or other rights to subscribe
for or purchase securities, and conform in all material respects to the
description thereof contained in the Offering Circular. Except as disclosed in
or contemplated by the Offering Circular and the consolidated financial
statements of Atlantic, and the related notes thereto, included in the Offering
Circular, the Bank has no outstanding options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or sell,
shares of its capital stock or any such options, rights, convertible securities
or obligations. The descriptions of the Bank's stock option and other stock
plans or arrangements, and the options or other rights granted and exercised
thereunder, set forth in the Offering Circular are accurate in all material
respects and are fair summaries of the material terms of such plans,
arrangements, options and rights.
(vi) The shares of Bank Preferred Stock have been duly authorized
(A) by all necessary action of the Bank and (B) by the Commissioner of Banks of
the Commonwealth of Massachusetts (the "Commissioner"), and, if and when issued
and delivered pursuant to the terms and conditions set forth in the Bank's
Amended and Restated Articles of Organization, as amended to the date hereof and
as to be amended by that certain Certificate of Vote of Directors Establishing a
Class or Series of Stock relating to the Bank Preferred Stock (the "Bank
Charter"), will be validly issued, fully paid and non-assessable. The Bank
Preferred Shares will conform in all material respects to the description
thereof contained in the Offering Circular. No preemptive rights or other
similar rights exist with respect to the issuance of the Bank Preferred Shares.
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(vii) The Bank has full legal right, power and authority to enter
into this Agreement and perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Bank and
constitutes a valid and binding obligation of the Bank in accordance with its
terms except as such validity and binding nature may be limited by (i)
applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance or similar laws in effect which affect the enforcement of creditors
rights generally, (ii) general principles of equity, whether considered in a
proceeding at law or in equity and (iii) state or federal securities laws or
policies relating to the non-enforceability of the indemnification or
contribution provisions contained herein. The making and performance of this
Agreement by the Bank and the consummation of the transactions herein
contemplated will not violate any provisions of the charter or bylaws, or other
organizational documents of the Bank or any Subsidiary, and will not conflict
with, result in the breach or violation of, or constitute, either by itself or
upon notice or the passage of time or both, a default under any agreement,
mortgage, deed of trust, lease, franchise, license, indenture, permit or other
instrument to which either the Bank or any Subsidiary is a party or by which any
of their respective properties may be bound or affected, any statute or any
authorization, judgment, decree, order, rule or regulation of any court or any
regulatory body, administrative agency or other governmental body applicable to
them or any of their respective properties. No consent, approval, authorization
or other order of any court, regulatory body, administrative agency or other
governmental body is required for the execution and delivery of this Agreement
or the consummation by the Bank of the transaction contemplated by this
Agreement, except for (A) the approval of the Commissioner of Banks referred to
in subsection 2(b)(vi), (B) compliance with the Blue Sky laws applicable to the
public offering of the Shares by the Underwriters, and (C) the clearance of such
offering with the NASD, and (D) the filing of the Certificate of Vote of
Directors Establishing a Class or Series of Stock relating to the Bank Preferred
Stock.
(viii) The consolidated financial statements of Atlantic and the
related notes thereto, included in the Prospectus and the Offering Circular,
present fairly in all material respects the financial condition of the Bank and
the Subsidiaries on a consolidated basis as of the respective dates of such
financial statements, and the results of operations and cash flows of the Bank
and the Subsidiaries on a consolidated basis for the respective periods covered
thereby. Such statements and related notes have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis as
certified by the independent accountants named in subsection 1(b)(iii). No other
financial statements are required to be included in the Prospectus. The selected
financial data set forth in the Offering Circular under the caption "Selected
Consolidated Financial Data," fairly present in all material respects the
information set forth therein in accordance with generally accepted accounting
principles.
(ix) Except as disclosed in the Offering Circular, and except as
to violations or defaults which would not, individually or in the aggregate,
have a Material Adverse Effect on Atlantic: (A) Neither the Bank nor any
Subsidiary is in violation or default of any provision of its charter,
certificate of incorporation or bylaws, or other organizational documents, or in
breach of
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or default with respect to any provision of any trust, lease, franchise,
license, indenture, permit or other instrument to which it is a party or by
which it or any of its properties are bound; and (B) there does not exist any
state of facts which constitutes an event of default on the part of the Bank,
CHB or Dolphin as defined in such documents or which, with notice or lapse of
time or both, would constitute such an event of default and which would have a
Material Adverse Effect on Atlantic.
(x) The contracts described in the Offering Circular are in full
force and effect on the date hereof and neither the Bank, nor to the best of the
Bank's knowledge, any other party is in breach of or default under any of such
contracts, except for any such failure to be in full force and effect or such
breaches or defaults that would not have a Material Adverse Effect on Atlantic.
(xi) Except as disclosed in the Offering Circular, there are no
legal or governmental actions, suits or proceedings pending or, to the best of
the Bank's knowledge, threatened to which the Bank, CHB or Dolphin is or may be
a party or of which property owned or leased by the Bank, CHB or Dolphin is or
may be the subject, or related to environmental or discrimination matters, which
actions, suits or proceedings are reasonably likely to, individually or in the
aggregate, prevent or adversely affect the transactions contemplated by this
Agreement or result in a Material Adverse Effect on Atlantic; and no labor
disturbance by the employees of the Bank exists or is imminent which is
reasonably likely to have a Material Adverse Effect on Atlantic. Except as
disclosed in the Offering Circular, neither the Bank or any Subsidiary is a
party or subject to the provisions of any material injunction, judgment, decree
or order of any court, regulatory body, administrative agency or other
governmental body.
(xii) The Bank or a Subsidiary has good and marketable title to
all the properties and assets reflected as owned in the consolidated financial
statements of Atlantic, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except (A) those, if any, reflected in such financial
statements or (B) those which are not material in amount and do not adversely
affect the use made and proposed to be made of any property by the Bank or the
Subsidiary that is material to the business of Atlantic. The Bank holds its
leased properties under valid and binding leases, with such exceptions as are
not materially significant in relation to the business of the Bank. Except as
disclosed in the Offering Circular, the Bank owns or leases all such properties
as are necessary to its operations as now conducted or as proposed to be
conducted.
(xiii) Since the respective dates as of which information is
given in the Offering Circular, and except as described in or specifically
contemplated by the Offering Circular: (A) the Bank and the Subsidiaries have
not incurred any material liabilities or obligations, indirect, direct or
contingent, or entered into any material verbal or written agreement or other
material transaction which is not in the ordinary course of business or which
would reasonably be expected to have a material adverse effect on the results of
operations of Atlantic; (B) the Bank and the Subsidiaries have not sustained any
material loss or interference with their
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respective businesses or properties from fire, flood, windstorm, accident or
other calamity, whether or not covered by insurance; (C) the Bank has not paid
or declared any dividends or other distributions with respect to its capital
stock and the Bank and the Subsidiaries are not in default in the payment of
principal or interest on any outstanding debt obligations that are material to
the Bank; (D) there has not been any issuance, repurchase or redemption of the
capital stock or change in indebtedness material to the Bank (other than in the
ordinary course of business); and (E) there has not been any change which would
be reasonably likely to have a Material Adverse Effect on Atlantic.
(xiv) Except as may be disclosed in the Offering Circular, the
Bank and the Subsidiaries have conducted and are conducting their respective
businesses in substantial compliance with all material laws, rules and
regulations applicable to them in the respective jurisdictions in which they are
conducting business, including, without limitation, all applicable local, state
and federal environmental laws and regulations, except where failure to be so in
compliance would not have a Material Adverse Effect on Atlantic.
(xv) The Bank and the Subsidiaries have filed all required
federal, state and foreign income and franchise tax returns and has paid all
taxes shown as due thereon; and the Bank has no knowledge of any tax deficiency
which has been or is reasonably likely to be asserted or threatened against the
Bank or the Subsidiaries which is reasonably likely to have a Material Adverse
Effect on Atlantic.
(xvi) The Bank is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(xvii) Each of the Bank and each Subsidiary maintains insurance
of the types and in the amounts generally deemed adequate for its business,
including, but not limited to, insurance covering real and personal property
owned or leased by the Bank or the Subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily insurance
against, all of which insurance is in full force and effect, except for such
failures to be in full force and effect that would not have a Material Adverse
Effect on Atlantic.
(xviii) All material transactions between the Bank and its
Subsidiaries, on the one hand, and the officers, directors and any affiliates of
such persons or companies, on the other hand, required to be disclosed in the
Prospectus and the Offering Circular have been accurately disclosed in all
material respects.
(xix) The Bank Preferred Shares are exempt under Section 3(a)(2)
of the 1933 Act from the securities registration requirements of the 0000 Xxx.
(xx) The Bank Preferred Stock has been duly authorized and, if
and when issued and delivered by the Bank pursuant to the terms and conditions
set forth in the Bank Charter, will be validly issued and fully paid and
non-assessable; the Bank Preferred Stock
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conforms to the statements relating thereto contained in the Offering Circular;
no holder of the Bank Preferred Stock will be subject to personal liability by
reason of being such a holder; and the issuance of the Bank Preferred Stock is
not subject to the preemptive or other similar rights of any securityholder of
the Bank.
(c) Any certificate signed by any officer of the Company or the Bank or
any of its subsidiaries delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Bank, as applicable, to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Firm Shares. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
a price per share of $___, the number of Firm Shares set forth in Schedule A
opposite the name of such Underwriter, plus any additional number of Firm Shares
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 9 hereof.
(b) Option Shares. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the Representatives, severally and
not jointly, to purchase up to an additional 180,000 shares of the Series A
Preferred Stock at the price per share set forth in paragraph (a) above. The
option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Firm Shares upon notice by FBR to the Company setting forth
the number of Option Shares as to which the Underwriters are then exercising the
option and the time and date of payment and delivery for such Option Shares. Any
such time and date of delivery (a "Date of Delivery") shall be determined by
FBR, but shall not be later than seven full business days after the exercise of
said option, nor in any event prior to the Closing Time, as hereinafter defined.
If the option is exercised as to all or any portion of the Option Shares, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Shares then being purchased which the
number of Firm Shares set forth in Schedule A opposite the name of such
Underwriter bears to the total number of Firm Shares, subject in each case to
such adjustments as the Representatives in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) The Shares to be purchased by each Underwriter hereunder will be
represented by one or more definitive certificates registered in the name of
__________ which will be deposited by or on behalf of the Company with The
Depository Trust Company ("DTC") or its designated custodian. The Company will
deliver the Shares to FBR for the account of each Underwriter, against payment
by or on behalf of such Underwriter of the purchase price therefor by wire
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transfer to the account specified by the Company in Federal (same day) funds, by
causing DTC to credit the Shares to the account of FBR at DTC. The Company will
cause the certificates representing the Shares to be made available to FBR for
checking at least twenty-four hours prior to the Time of Delivery at the office
of DTC or its designated custodian (the "Designated Office"). The time and date
of such delivery and payment shall be, with respect to the Firm Shares, 10:00
A.M., eastern time, on __________, 1998, or such other time and date as FBR and
the Company may agree upon in writing, and, with respect to the Option Shares,
10:00 A.M., eastern time, on the date specified by FBR in the written notice
given by FBR of the Underwriters' election to purchase such Option Shares, or
such other time and date as FBR and the Company may agree upon in writing. Such
time and date for delivery of the Firm Shares is herein called the "Closing
Time," such time and date for delivery of the Option Shares, if not the Closing
Time, is herein called the "Time of Delivery," and each such time and date for
delivery is herein called a "Time of Delivery." The documents to be delivered at
the Closing Time and the Time of Delivery by or on behalf of the parties hereto
pursuant to Section 5 hereof, including the cross-receipt for the Shares and any
additional documents requested by the Underwriters, will be delivered at the
offices of Xxxxxxx, Procter & Xxxx LLP in Boston, Massachusetts.
SECTION 3. (a) The Company covenants with each Underwriter as follows:
(i) The Company will comply with the requirements of Rule 430A
and will notify the Representatives in writing promptly after the Company
receives notice thereof, (A) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (B) of the receipt
of any comments from the Commission, (C) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(ii) The Company will give the Representatives notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall
reasonably object.
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(iii) The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, such number of
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein) as they may reasonably request. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(iv) The Company has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus as such Underwriter
reasonably requested, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to each
Underwriter, during the period when the Prospectus is required to be delivered
under the 1933 Act or the Securities Exchange Act of 1934, as amended, (the
"1934 Act"), such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request; provided, however,
that during the nine-month period after the time of the issuance of the
Prospectus the Company will bear the expense of delivering such number of copies
of the Prospectus (as amended or supplemented), but that after such nine-month
period, the requesting Underwriter will bear the expense (including, without
limitation, any fees and disbursements of the Company's accountants and legal
counsel) of delivering such number of copies of the Prospectus (as amended or
supplemented). The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(v) The Company will comply with the 1933 Act and the 1933 Act
Regulations so as to permit the completion of the distribution of the Shares as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Shares, any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Underwriters
or for the Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request; provided, however, that during the nine-month period after the time of
the issuance of the Prospectus the Company will bear the expense of delivering
such number of copies of such amendment or supplement, but
-14-
that after such nine-month period, the requesting Underwriter will bear the
expense (including, without limitation, any fees and disbursements of the
Company's accountants and legal counsel) of delivering such number of copies of
such amendment or supplement.
(vi) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Shares for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representatives may designate and to maintain such qualifications in effect for
a period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Shares have been
so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(vii) The Company will make generally available to its
securityholders as soon as may be practicable but in no event later than the
last day of the fifteenth full calendar month following the effective date of
the Registration Statement (as defined in Rule 158(c) of the 1933 Act
Regulations), an earnings statement (which need not be audited but shall be in
reasonable detail) complying with Section 11(a) of the 1933 Act and the 1933 Act
Regulations.
(viii) The Company will use the net proceeds received by it from
the sale of the Shares in the manner specified in the Prospectus under "Use of
Proceeds".
(ix) The Company will use its best efforts to cause the Shares to
be quoted on the Nasdaq National Market.
(xi) REIT Qualification. Except to the extent that a Tax Event
(as defined in the Prospectus) shall have occurred, the Company will in a timely
manner, make the elections and take the procedural steps described in the
Prospectus under the heading "Federal Income Tax Considerations" to meet the
requirements to qualify, for its taxable year ending December 31, 1996, as a
REIT under the Code, as is in effect on the date hereof and use every reasonable
effort to do so.
(b) The Bank covenants with each Underwriter as follows:
If any event shall occur as a result of which it is necessary, in
the reasonable opinion of counsel for the Underwriters or counsel for the Bank,
to amend or supplement the Offering Circular in order to make the Offering
Circular not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, the Bank will forthwith amend or supplement the
Offering Circular by preparing the Offering Circular so that, as so amended or
-15-
supplemented, the Offering Circular will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time the
Offering Circular is delivered to a purchaser, not misleading.
SECTION 4. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company and the Bank, jointly
and severally, covenant and agree with the several Underwriters to pay or cause
to be paid all expenses incident to the performance of the obligations of the
Company and/or the Bank under this Agreement, including (i) the preparation,
printing and filing of the Registration Statement and the Offering Circular
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, the Blue Sky
Memorandum and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Shares and the Bank
Preferred Shares, (iii) the preparation, issuance and delivery of the
certificates for the Shares 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 Shares to the Underwriters, (iv) the fees and disbursements of
the Company's counsel, accountants and other advisors, (v) the qualification of
the Shares under securities laws in accordance with the provisions of Section
3(a)(vi) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Memorandum and any supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, preliminary offering circular, and of the Prospectus and the
Offering Circular and any amendments or supplements thereto, (vii) the fees and
expenses of any transfer agent or registrar for the Shares or the Bank Preferred
Shares, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the National Association of Securities Dealers, Inc. (the "NASD") of the terms
of the sale of the Shares, (x) the fees and expenses incurred in connection with
having the Shares included for quotation on the Nasdaq National Market; and (xi)
any other fees, expenses and reimbursements expressly required to be paid by the
Bank pursuant to the letter agreement between the Bank and FBR dated _________,
1998.
SECTION 5. The obligations of the several Underwriters hereunder are
subject to the accuracy of the representations and warranties of the Company and
the Bank contained in Section 1 hereof or in certificates of any officer of the
Company or the Bank delivered pursuant to the provisions hereof, to the
performance by each of the Company and the Bank of their respective covenants
and other obligations hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at Closing Time (and, if any Option Shares
are purchased, at the Date of Delivery) no stop order suspending the
effectiveness of the Registration Statement shall have been issued to the
Company under the 1933 Act and, to the knowledge of the Company, no proceedings
therefor shall have been initiated or threatened by the Commission, and any
request
-16-
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430(A).
(b) There shall have been furnished to you at the Closing Time, in form
and substance reasonably satisfactory to you and counsel for the Underwriters an
opinion of Xxxxxxx, Procter & Xxxx LLP, counsel for the Company and the Bank,
addressed to you as Representatives of the Underwriters and dated such Closing
Time, to the effect that:
(i) The Company has been duly incorporated and has legal
existence and is in good standing under the laws of the Commonwealth of
Massachusetts with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
(other than the Shares) have been duly authorized and validly issued and are
fully paid and non-assessable and are owned of record, directly or through CHB
Realty Corp., by the Bank, free of all liens, charges or encumbrances; and the
Shares conform in all material respects to the description of the Series A
Preferred Shares contained in the Prospectus;
(iii) The Shares have been duly authorized and when issued and
delivered in accordance with this Agreement against payment of the consideration
set forth herein, will be validly issued, fully paid and non-assessable; no
holder of Shares will be subject to personal liability by reason of being such a
holder; and the issuance of the Shares is not subject to (i) preemptive rights
under the Company's Restated Articles of Organization or by-laws or under the
Massachusetts Business Corporation Law, or (ii) to the knowledge of such
Counsel, other rights of any securityholder of the Company to acquire the
Shares.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and the Bank;
(v) The issue and sale of the Shares by the Company hereunder and
the compliance by the Company with all of the provisions of this Agreement and
the consummation of the transactions herein contemplated will not (A) result in
any violation of the provisions of the Restated Articles of Organization or
by-laws of the Company, (B) result in a breach on the part of the Company of any
agreement known to such counsel to which the Company is a party, or (C) result
in a violation on the part of the Company of any applicable Massachusetts or
Federal law or any order, rule or regulation known to such counsel of any
governmental agency or body having jurisdiction over the Company or any of its
properties.
(vi) The issuance and sale of the Shares has been approved by the
Commissioner
-17-
of Banks of the Commonwealth of Massachusetts. No other consent, approval,
authorization, order, registration or qualification of or with any Massachusetts
or Federal court, agency or body is required to be obtained by the Company for
the issue and sale of the Shares or the consummation by the Company or the Bank
of the transactions contemplated by this Agreement, except the registration
under the 1933 Act of the Shares, the registration under the 1934 Act of the
Bank Preferred Shares, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the state securities or
Blue Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters;
(vii) The Company is not, to the knowledge of such counsel, (i)
in violation of its Certificate of Incorporation or By-laws or (ii) in default
in the performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such counsel to which
it is a party or by which it or any of its properties may be bound;
(viii) The statements set forth in the Prospectus under the
captions "Description of the Series A Preferred Shares," insofar as they purport
to constitute a summary of the terms of the Shares, "Description of Capital
Stock," insofar as they purport to constitute a summary of the terms of the
capital stock of the Company, and under the captions "Federal Income Tax
Considerations," "ERISA Considerations," insofar as they constitute or purport
to describe matters of law or legal conclusions, provisions of laws and
documents referred to therein, have been reviewed by such counsel, are accurate
summaries and fairly present, in all material respects, the matters referred to
therein;
(ix) Each of the Master Purchase Agreement, Master Service
Agreement and Advisory Agreement, between the Company and the Bank, has been
duly authorized, executed and delivered by the Company and the Bank and
constitutes the valid and legally binding obligation of the Company and the Bank
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights;
(x) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act;
(xi) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior to the
Closing Time (other than the financial statements, related schedules and other
financial data therein, as to which such counsel need express no opinion)
appeared on their face to be appropriately responsive in all material respects
to the requirements of the 1933 Act and the 1933 Act Regulations.
(xii) The Bank has been duly organized and continues to operate
as a state-chartered trust company under the provisions of Massachusetts General
Laws Chapter 172 and other related statutes subject to examination and
regulation by the Commissioner of Banks of the
-18-
Commonwealth of Massachusetts; each of CHB Realty Corp. and Dolphin Capital
Corporation has been duly organized and is an existing corporation in good
standing under the laws of the Commonwealth of Massachusetts; all of the issued
and outstanding shares of CHB Realty Corp. and Dolphin Capital Corporation have
been duly authorized and validly issued, are fully paid and non-assessable and
to the knowledge of the Bank are owned of record by the Bank free and clear of
all claims, liens, charges and encumbrances; the Bank has corporate power and
authority to own its properties and conduct its business as described in the
Offering Circular; and, to the knowledge of such counsel, (i) the Bank is an
institution with deposit accounts insured by the FDIC to the fullest extent
allowed by law and (ii) no proceedings for the termination or revocation of such
insurance are pending or threatened;
(xiii) The authorized capital stock of the Bank consists of: (A)
5,000,000 shares of common stock, par value $1.00 per share, and (B) 1,000,000
shares of preferred stock, par value $1.00 per share, of which (I) 100 shares
have been designated as Series B Convertible Preferred Stock, and (II) 150,000
shares have been designated as Series A Junior Participating Cumulative
Preferred Stock; as set forth in the Offering Circular; all outstanding shares
of capital stock have been duly authorized and validly issued and are fully paid
and non-assessable and conform in all material respects to the description
thereof contained in the Offering Circular;
(xiv) Except as disclosed in or specifically contemplated by the
Offering Circular, to such counsel's knowledge, there are no outstanding
options, warrants or other rights calling for the issuance of, and no agreements
to issue, any shares of capital stock of the Bank or any security convertible
into or exchangeable for capital stock of the Bank;
(xv) The Bank Preferred Shares have been approved by the
Commissioner of Banks of the Commonwealth of Massachusetts and all other
regulatory consents, authorizations, approvals and filings required to be
obtained or made by the Bank under the federal laws of the United States and the
laws of the Commonwealth of Massachusetts relating to the Bank Preferred Shares
have been obtained or made;
(xvi) The execution and performance of this Agreement and the
consummation of the transactions herein contemplated will not conflict with,
result in the breach of, or constitute, either by itself or upon notice or the
passage of time or both, a default under, any agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument known to
such counsel to which the Bank or the Subsidiaries is a party or by which the
Bank or the Subsidiaries or any of their respective properties are bound which
is material to Atlantic, or violate any of the provisions of the charter or
bylaws, of the Bank or the Subsidiaries or, so far as is known to such counsel,
violate any statute, judgment, decree, order, rule or regulation of any court or
governmental body having jurisdiction over the Bank or the Subsidiaries or any
of their respective property;
(xvii) Neither the Bank nor any Subsidiary is in violation of its
charter or bylaws, or other organizational documents, or to the best of such
counsel's knowledge, in breach of or
-19-
default with respect to any provision of any agreement, mortgage, deed of trust,
lease, franchise, license, indenture, permit or other instrument known to such
counsel to which the Bank or any Subsidiary is a party or by which they or any
of their respective properties may be bound, except where such default would not
materially adversely affect Atlantic; and, to the best of such counsel's
knowledge, the Bank and the Subsidiaries are in substantial compliance with all
laws, rules, regulations, judgments, decrees, orders and statutes of any court
or jurisdiction to which they are subject, except where noncompliance would not
materially adversely affect Atlantic;
(xviii) To such counsel's knowledge, no holders of securities of
the Bank have rights which have not been waived to the registration of shares of
the Bank's capital stock or other securities, because of the offering of the
Shares or the Bank Preferred Shares contemplated hereby;
(xix) The statements in the Offering Circular under the caption
"Description of the Bank Preferred Shares", insofar as they purport to
constitute a summary of documents referred to therein or statements of law or
legal conclusions, are accurate summaries and fairly present, in all material
respects, the matters referred to therein;
(xx) The Bank Preferred Shares are exempt under Section 3(a)(2)
of the 1933 Act from the securities registration requirements of such act; and
(xxi) The Bank Preferred Shares have been duly authorized and, if
and when issued and delivered by the Bank pursuant to the terms and conditions
set forth in the Bank Charter, will be validly issued and fully paid and
non-assessable; the Bank Preferred Shares conform in all material respects to
the statements relating thereto contained in the Offering Circular; no holder of
the Bank Preferred Shares will be subject to personal liability by reason of
being such a holder; and the issuance of the Bank Preferred Shares is not
subject to the preemptive or other similar rights of any securityholder of the
Bank.
Xxxxxxx, Procter & Xxxx LLP shall also have furnished to you at the
Closing Time a letter addressed to you as Representatives of the Underwriters
and dated the Closing Time, stating that:
Such counsel has participated in the preparation of the Registration
Statement and Prospectus and has participated in discussions with the
Representatives, counsel for the Underwriters, and representatives of the
Company and the Bank and their accountants. On the basis of the information such
counsel has gained in the course of the performance of the services referred to
above, considered in the light of their understanding of the applicable law and
the experience such counsel has gained through its practice under the 1933 Act
and the 1934 Act, such counsel confirms to you that, nothing that came to their
attention in the course of such review has caused such counsel to believe that
the Registration Statement (including the Offering Circular incorporated by
reference therein) or any further amendment thereto made by the Company prior to
the Closing Time contained any untrue statement of a material fact or omitted
-20-
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, or that, as of its date, the Prospectus
(including the Offering Circular incorporated by reference therein) or any
further amendment or supplement thereto made by the Company or the Bank prior to
the Closing Time 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 or that, as of the Closing Time, either the Registration Statement or
the Prospectus or any further amendment or supplement thereto made by the
Company or the Bank prior to the Closing Time contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
and such counsel does not know of any amendment to the Registration Statement
required to be filed.
In addition, such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company on the one
hand, or the Bank, CHB or Dolphin on the other hand, that would be required to
be disclosed in the Prospectus or the Offering Circular, respectively, and is
not so disclosed. Also, such counsel does not know of any documents that are
required to be filed as exhibits to the Registration Statement and are not so
filed or of any documents that are required to be summarized in the Prospectus
and are not so summarized.
Such counsel may state that the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such, however, that such counsel does not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those made
under the captions "Description of the Series A Preferred Shares," "Description
of Capital Stock," "Federal Income Tax Considerations," and "ERISA
Considerations" in the Prospectus, and those made under the caption "Description
of the Bank Preferred Shares" in the Offering Circular insofar as such statement
constitutes a summary of documents referred to therein or matters of law. Also,
such counsel need not express any belief as to the financial statements, other
financial, statistical or accounting data and related schedules contained in the
Registration Statement or the Prospectus.
(c) At Closing Time, the Representatives shall have received the
opinion, dated as of Closing Time, of XxXxxxxxx, Will & Xxxxx, counsel for the
Underwriters, with respect to the validity of the Shares and such other legal
matters as the Underwriters shall reasonably request. In giving such opinion
such counsel may rely, as to all matters governed by the laws of the
Commonwealth of Massachusetts, upon the opinion of Xxxxxxx, Procter & Xxxx, LLP.
Such counsel may also state that, insofar as its opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
(d) At Closing Time, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Prospectus or
the Offering Circular, any
-21-
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, results of operations
or business affairs of the Company or of the Bank and its Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received certificates of the
President or a Vice President of each of the Company and the Bank and of the
chief financial or chief accounting officer of each of the Company and the Bank,
dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Sections 1(a) and
1(b) hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company and the Bank have
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued to
the Company and, to the knowledge of the Company, no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(e) The Representatives shall have received from Wolf & Company, P.C. a
letter dated the date of this Agreement, in form and substance reasonably
satisfactory to the Representatives, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(f) At the Closing Time, the Representatives shall have received from
Wolf & Company, P.C. a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e)
of this Section, except that the specified date referred to shall be a date not
more than three business days prior to Closing Time.
(g) At Closing Time, the Shares shall have been approved for quotation,
subject to notice of issuance, on the Nasdaq National Market.
(h) At Closing Time, the Company's Restated Articles of Incorporation
shall have been filed with the Commonwealth of Massachusetts in accordance with
the Massachusetts Business Corporation Law.
(i) At Closing Time, the Certificate of Vote of Directors Establishing a
Class or Series of Stock shall have been filed with the Commissioner of Banks of
the Commonwealth of Massachusetts.
(j) In the event that the Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the Option Shares, the
representations and warranties of each of the Company and the Bank contained
herein and the statements in any certificates furnished by each of the Company
and the Bank hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the Representatives shall have received:
-22-
(i) A certificate, dated such Date of Delivery, of the President
or a Vice President of each of the Company and the Bank and of the chief
financial or chief accounting officer of each of the Company and the Bank
confirming that the certificate delivered at the Closing Time pursuant to
Section 5(d) hereof remains true and correct in all material respects as of such
Date of Delivery.
(ii) The opinion and letter of Xxxxxxx, Procter & Xxxx LLP,
counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Shares to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion and letter required by Section 5(b) hereof.
(iii) The opinion of XxXxxxxxx, Will & Xxxxx, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Shares to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(iv) A letter from Wolf & Company, P.C. in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(e) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(k) At Closing Time and at each Date of Delivery counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Shares as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company and the Bank in connection with the issuance and sale of the Shares as
herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(l) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case
of any condition to the purchase of Option Shares on a Date of Delivery which is
after the Closing Time, the obligations of the several Underwriters to purchase
the relevant Option Shares, may be terminated by the Representatives by written
notice to the Company at any time at or prior to Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7, and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. (a) The Company and the Bank, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any losses, claims, damages or liabilities
to which such Underwriter or such controlling
-23-
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any preliminary prospectus or
preliminary offering circular, the Prospectus or the Offering Circular or any
amendment or supplement thereto or the omission or alleged omission to state in
the Registration Statement, any preliminary prospectus or preliminary offering
circular, or the Prospectus or the Offering Circular or any amendment or
supplement thereto, a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse, as incurred,
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action;
provided, however, that neither the Company nor the Bank will be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement, any
preliminary prospectus or preliminary offering circular, the Prospectus or the
Offering Circular or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company or the Bank by any
Underwriter through FBR specifically for use therein. This indemnity agreement
will be in addition to any liability that the Company and the Bank may otherwise
have. Neither the Company nor the Bank will, without the prior written consent
of the Representatives, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not any
Underwriter or any person who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act is a party to such
claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of all of the Underwriters and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company and the Bank, each of the directors and officers
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company or the Bank within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any losses, claims, damages or
liabilities to which the Company or the Bank or any such director or officer of
the Company, or controlling person of the Company or the Bank may become subject
under the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, any preliminary prospectus or preliminary
offering circular or the Prospectus or the Offering Circular or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated in the Registration Statement, any
preliminary prospectus or preliminary offering circular or the Prospectus or the
Offering Circular or any amendment or supplement thereto, or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
-24-
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company or the Bank by such Underwriter
through FBR specifically for use therein; and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Company or the Bank or any such
director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or any action in respect
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 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, 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 6. In case any such action is brought against any indemnified
party, and it notifies the 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; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded or shall have been advised by its counsel that there
may be one or more legal defenses available to it and/or other indemnified
parties that conflict with those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such action
on behalf of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 6 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Representatives in
the case of paragraph (a) of this Section 6, representing the indemnified
parties under such paragraph (a) who are parties to such action or actions) or
(ii) the indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
-25-
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 6 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other hand from the offering of the Shares or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other hand in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Bank on the one hand and the Underwriters on the other hand shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters, bear to the total price to the
public of the Shares, in each case as set forth on the cover of the Prospectus.
The relative fault of the parties shall be determined by reference to, among,
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters, the parties' relative
intents, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Company, the Bank and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(d). Notwithstanding any other provision of this paragraph (d), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate exceed
the total underwriting commission received by such Underwriter hereunder in
connection with the Shares underwritten by it and distributed to the public,
less the aggregate amount of any damages that such Underwriter has otherwise
been required to pay in respect of the same or any substantially similar claim,
and no person guilty of fraudulent misrepresentation (within the meaning of
Section 11 (f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute hereunder are several in proportion to
their respective underwriting obligations and not joint, and contributions among
Underwriters shall be governed by the provisions of the Agreement Among
Underwriters. For the purposes of this paragraph 6(d), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director and officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Bank within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, shall have the
-26-
same rights to contribution as the Company and the Bank.
SECTION 7. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or the Bank or any
of its subsidiaries submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company or the
Bank, and shall survive delivery of the Shares to the Underwriters.
SECTION 8. (a) The Representatives may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus or the Offering
Circular, any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
results of operations or business affairs of the Company or Atlantic, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Shares or to enforce contracts for
the sale of the Shares, or (iii) if trading in any securities of the Company or
the Bank has been suspended or materially limited by the Commission, by an
exchange that lists any such securities or by the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6
and 7 shall survive such termination and remain in full force and effect.
SECTION 9. If one or more of the Underwriters shall fail at Closing Time
or a Date of Delivery to purchase the Shares which it or they are obligated to
purchase under this Agreement (the "Defaulted Shares"), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Shares in such amounts as
may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Shares does not exceed 10% of the
number of Shares to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated,
-27-
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Shares exceeds 10% of the number
of Shares to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Company to sell the Option Shares to be
purchased and sold on such Date of Delivery shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Shares, as
the case may be, either the Representatives or the Company shall have the right
to postpone Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 9.
SECTION 10. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to Friedman, Billings, Xxxxxx & Co., Inc. at the address set forth on
the first page, attention of _________; notices to the Company and the Bank
shall be directed to them at the Bank at its corporate office with a copy to
Xxxxxxx X. Mayer, Goodwin, Procter & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx XX 00000.
SECTION 11. This Agreement shall each inure to the benefit of and be
binding upon the Underwriters, the Company and the Bank and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and the Bank and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
the Bank and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchase of Shares from the
Underwriter shall be deemed to be a successor by reason merely of such purchase.
-28-
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF VIRGINIA.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to each of the Company and the Bank a
counterpart hereof, whereupon this instrument, along and all counterparts, will
become a binding agreement between the Underwriters and the Company and the Bank
in accordance with its terms.
Very truly yours,
ATLANTIC PREFERRED CAPITAL
CORPORATION
By:
Title:
ATLANTIC BANK AND TRUST
COMPANY
By:
FRIEDMAN, BILLINGS, XXXXXX
& CO., INC.
ADVEST, INC.
XXXXXX XXXXXXXXXX XXXXX INC.
By: Friedman, Billings, Xxxxxx & Co., Inc.
By:
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
-29-
SCHEDULE A
----------
Underwriter Number of Firm Shares
----------- ---------------------
Xxxxxxxx, Xxxxxxxx & Xxxxxx & Co., Inc.
Advest, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx Inc.
Total 1,200,000
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