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EXHIBIT 1
REPUBLIC BANCSHARES, INC.
2,000,000 shares of Common Stock (1)
UNDERWRITING AGREEMENT
________, 1998
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Republic Bancshares, Inc., a Florida corporation (the "Company"), hereby
confirms its agreement (the "Agreement") with Xxxxxxx X. Xxxxx & Co. and Xxxx
Xxxx & Co., Inc. (the "Underwriters"), with respect to the issue and sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
in such amounts as are set forth in Schedule A hereto opposite the name of such
Underwriter, of 2,000,000 shares (the "Initial Securities") of common stock, par
value $2.00 per share (the "Common Stock") of the Company. The Company also
proposes to issue and sell to the Underwriters, at the Underwriters' option, up
to an additional 300,000 shares of Common Stock (the "Option Securities") as set
forth herein. The term "Common Securities" as used herein, unless indicated
otherwise, shall mean the Initial Securities and the Option Securities.
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(1) Plus an option to acquire up to 300,000 additional shares of Common Stock
from the Company, to cover over-allotments.
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The initial public offering price for the Common Securities, the purchase
price to be paid by the Underwriters for the Common Securities and the
commission per Common Security to be paid by the Company to the Underwriters
shall be agreed upon by the Company and the Underwriters, and such agreement
shall be set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication between the Company and the Underwriters and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering of
the Common Securities will be governed by this Agreement as supplemented by the
Price Determination Agreement. From and after the date of the execution and
delivery of the Price Determination Agreement this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-2 (File No.
333-_____) covering the registration of the Common Securities, under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such registration statement becomes effective is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and the
documents incorporated by reference therein pursuant to Item 12 of Form S-2
under the 1933 Act, at the time it becomes effective, is herein called the
"Registration Statement," and the prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-2 under the 1933
Act, included in the Registration Statement at the time it becomes effective is
herein called the "Prospectus," except that if any revised prospectus provided
to the Underwriters by the Company for use in connection with the offering of
the Common Securities differs from the prospectus included in the Registration
Statement at the time it becomes effective (whether or not such prospectus is
required to be filed pursuant to Rule 424(b)), the term "Prospectus" shall refer
to such revised prospectus from and after the time it is first furnished to the
Underwriters for such use.
The Underwriters may assemble and manage a selling group of broker-dealers
that are members of the National Association of Securities Dealers, Inc.
("NASD") to participate in the solicitation of purchase orders for the Common
Securities under a selected dealer agreement, the form of which is set forth as
Exhibit B to this Agreement.
The Company hereby confirms its engagement of Xxxx, Xxxx & Co., Inc. as,
and Xxxx, Xxxx & Co., Inc. hereby confirms its agreement with the Company to
render services as, "qualified independent underwriter" within the meaning of
Section 2720 of the Conduct Rules of the National Association of Securities
Dealers, Inc. with respect to the offering and sale of the Common Securities.
Xxxx, Xxxx & Co., Inc., solely in its capacity as qualified independent
underwriter and not otherwise, is referred to herein as the "Independent
Underwriter."
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Section 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to and agrees with the
Underwriters that:
(i) The Company meets the requirements for use of Form S-2
under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times subsequent thereto up to the
Closing Time referred to below and with respect to Option Securities,
up to the Date of Delivery referred to below, (A) the Registration
Statement and any amendments and supplements thereto will comply in
all material respects with the requirements of the 1933 Act and the
rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"); (B) neither the Registration Statement nor any
amendment or supplement thereto will contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and (C)
neither the Prospectus nor any amendment or supplement thereto will
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, except that this representation and warranty does not
apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriters expressly for use in the Registration Statement or the
Prospectus. The statements contained under the caption "Underwriting"
in the Prospectus constitute the only information furnished to the
Company in writing by the Underwriters expressly for use in the
Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-2 under the 1933 Act, at the time they
were filed with the Commission. complied in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read together and
with the other information in the Prospectus, at the time the
Registration Statement becomes effective and at all times subsequent
thereto up to the Closing Time, will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, in each case after excluding any statement that does
not constitute a part of the Registration Statement or the Prospectus
pursuant to Rule 412 of the 1933 Act Regulations.
(iii) Xxxxxx Xxxxxxxx LLP, who are reporting upon the audited
financial statements included or incorporated by reference in the
Registration Statement, are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and, when duly executed by the Underwriters,
will constitute the valid and
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binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, or reorganization, moratorium or
other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(v) The consolidated financial statements, audited and
unaudited (including the notes thereto), included or incorporated by
reference in the Registration Statement present fairly the
consolidated financial position of the Company and its subsidiaries as
of the dates indicated and the consolidated results of operations and
cash flows of the Company and its subsidiaries for the periods
specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved except as otherwise stated
therein. The financial statement schedules, if any, included in the
Registration Statement present fairly the information required to be
stated therein. The selected financial, pro forma and statistical data
included in the Prospectus are accurate in all material respects and
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited and unaudited consolidated
financial statements included or incorporated by reference in the
Registration Statement.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus. Each subsidiary of the Company is an entity duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of organization with corporate power and
authority under such laws to own, lease and operate its properties and
conduct its business. The Company and each of its subsidiaries is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make
such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise. For purposes of this
Agreement, the terms "subsidiary" and "subsidiaries" include Republic
Bank (the "Bank'), RBI Capital Trust I (the "Trust"), and Republic
SPC1 Corp.
(vii) The Company is duly registered under the Bank Holding
Company Act of 1956, as amended; each subsidiary of the Company that
conducts business as a bank is duly authorized to conduct such
business in each jurisdiction in which such business is currently
conducted; and the deposit accounts of the Bank are insured by either
the Savings Association Insurance Fund or the Bank Insurance Fund of
the Federal Deposit Insurance Corporation ("FDIC"), up to the maximum
allowable limits thereof. The Company has all such power, authority,
authorization, approvals and orders as may be required to enter
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into this Agreement, to carry out the provisions and conditions hereof
and to issue and sell the Common Securities.
(viii) The Bank is a Florida commercial bank duly organized,
validly existing and in good standing under the laws of the State of
Florida with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business; the Bank is
duly qualified to transact business as a foreign corporation and is in
good standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type that would make
such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise. All of the outstanding
shares of capital stock of the Bank have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by
the Company directly, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind. All of the
outstanding shares of capital stock of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable and are owned by either the Company or the Bank
directly, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind, except that the
9.10% Cumulative Trust Preferred Securities issued by the Trust (the
"Trust Preferred Securities") are not owned by the Company or the
Bank.
(ix) Except for the Bank, the Company does not have any
"significant subsidiaries" as defined in Rule 1-02 of Regulation S-X
under the 0000 Xxx.
(x) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under
the caption "Capitalization."
(xi) The Common Securities to be issued and sold by the Company
to the Underwriters has been duly authorized and, when issued,
delivered and paid for pursuant to this Agreement, will be validly
issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus and the Registration
Statement. The delivery of certificates for the Common Securities to
be issued and sold by the Company hereunder and payment therefor
pursuant to the terms of this Agreement will pass valid title to such
Common Securities to the Underwriters, free and clear of any lien,
claim, encumbrance or defect in title. The issuance of such Common
Securities is not subject to preemptive or other similar rights.
The issuance by the Company of the Common Securities, the
compliance by the Company with all of the provisions of this
Agreement, the execution, delivery and performance by the Company of
this Agreement, and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any material indenture, loan
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agreement, mortgage, deed of Company or other material agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Articles of Incorporation or by-laws of the
Company or any of its subsidiaries or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, any of its subsidiaries or any of their
respective properties; and no consent, approval, authorization, order,
license, certificate, permit, registration or qualification of or with
any such court or other governmental agency or body is required for
the issue of the Common Securities or the consummation by the Company
of the other transactions contemplated by this Agreement, except for
such consents, approvals, authorizations, licenses, certificates,
permits, registrations or qualifications as have already been
obtained, or as may be required under the 1933 Act or the 1933 Act
Regulations, 1934 Act or 1934 Act Regulations, or state securities
laws.
(xii) The Company is not, and after giving effect to the
offering and sale of the Common Securities 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 "Investment Company Act").
(xiii) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and non-assessable, and none of the outstanding shares of capital
stock was issued in violation of the preemptive rights of any
stockholder of the Company.
(xiv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock.
Neither the Company, the Bank, nor any other subsidiary has any
material liability of any nature, contingent or otherwise, except as
set forth in the Prospectus.
(xv) Neither the Company, the Bank nor any other subsidiary is
in violation of any provision of its articles of incorporation,
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, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it may be
bound or to which any of its
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properties may be subject, except for such defaults that would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(xvi) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company, the Bank or
any other subsidiary that is required to be disclosed in the
Prospectus or that could reasonably be expected to result in any
material adverse change in the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, or that
could reasonably be expected to materially and adversely affect the
properties or assets of the Company and its subsidiaries, considered
as one enterprise, or that could reasonably be expected to materially
and adversely affect the consummation of the transactions contemplated
in this Agreement; all pending legal or governmental proceedings to
which the Company, the Bank or any other subsidiary is a party that
are not described in the Prospectus, including ordinary routine
litigation incidental to its business, if decided in a manner adverse
to the Company, would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
(xvii) There are no material contracts or documents of a
character required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement that are not described and filed as required.
(xviii) The Company and its subsidiaries, including the Bank,
each has good and marketable title to all properties and assets
described in the Prospectus as owned by it, free and clear of all
liens, charges, encumbrances or restrictions, except such as (A) are
described in the Prospectus or (B) are neither material in amount nor
materially significant in relation to the business of the Company and
its subsidiaries, considered as one enterprise; all of the leases and
subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company, the Bank or any other subsidiary holds properties described
in the Prospectus, are in full force and effect, and neither the
Company, the Bank nor any other subsidiary has any notice of any
material claim that has been asserted by anyone adverse to the rights
of the Company, the Bank or any other subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of such corporation to the continued possession of the leased
or subleased premises under any such lease or sublease.
(xix) Each of the Company and its subsidiaries, including the
Bank, owns, possesses or has obtained all material governmental
licenses, permits, certificates, consents, orders, approvals and other
authorizations necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as presently
conducted,
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and neither the Company, the Bank nor any other subsidiary has
received any notice of any restriction upon, or any notice of
proceedings relating to revocation or modification of, any such
licenses, permits, certificates, consents, orders, approvals or
authorizations.
(xx) No labor problem exists with the employees of the
Company or with employees of the Bank or any other subsidiary or to
the best knowledge of the Company, is imminent that could materially
adversely affect the Company and its subsidiaries, considered as one
enterprise, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its, the Bank's or any
other subsidiary's principal suppliers, contractors or customers that
could reasonably be expected to materially adversely affect the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
(xxi) Except as disclosed in the Prospectus, there are no
persons with registration or other similar rights to have any
securities of the Company (i) registered pursuant to the Registration
Statement or (ii) otherwise registered by the Company under the 1933
Act.
(xxii) Except as disclosed in the Prospectus, the Company and
its subsidiaries, including the Bank, own or possess all patents,
patent rights, licenses, inventions. copyrights, know-how (including
trade secrets or other unpatented and/or unpatentable proprietary or
confidential information systems or procedures), trademarks,
servicemarks and tradenames (collectively " patent and proprietary
right") currently employed by them in connection with the business now
operated by them except where the failure to so own, possess or
acquire such patent and proprietary rights would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the Company,
the Bank nor any other subsidiary has received any notice nor is
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any patent or proprietary rights, and
which infringement or conflict (if the subject of any unfavorable
decision, rule and refinement, singly or in the aggregate) could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise.
(xxiii) The Company and each subsidiary of the Company have
filed all Federal, state and local income, franchise or other tax
returns required to be filed and have made timely payments of all
taxes due and payable in respect of such returns and no material
deficiency has been asserted with respect thereto by any taxing
authority.
(xxiv) The Company has filed with the NASD all documents and
notices required by the NASD of companies that have issued securities
that are traded in the over-the-counter market and quotations for
which are reported by the National Market of The Nasdaq Stock Market,
Inc. (the "Nasdaq Stock Market").
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(xxv) Neither the Company, nor any subsidiary has taken or
will take, directly or indirectly, any action designed to cause or
result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation, under the
Exchange Act or otherwise, of the price of the Common Securities.
(xxvi) Neither the Company, the Bank nor any other subsidiary
is or has been (by virtue of any action, omission to act, contract to
which it is a party or by which it is bound, or any occurrence or
state of facts whatsoever) in violation of any applicable Federal,
state, municipal, or local statutes, laws, ordinances, rules,
regulations and/or orders issued pursuant to foreign, federal, state,
municipal, or local statutes, laws, ordinances, rules, or regulations
(including those relating to any aspect of banking, bank holding
companies, environmental protection, occupational safety and health,
and equal employment practices) heretofore or currently in effect,
except such violation that has been fully cured or satisfied without
recourse or that is not reasonably likely to have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxvii) Neither the Company, the Bank nor any other subsidiary
has any agreement or understanding with any entity concerning the
future acquisition by the Company or the Bank of a controlling
interest in any entity that is required by the 1933 Act or the 1933
Act Regulations to be disclosed by the Company that is not disclosed
in the Prospectus; neither the Company, the Bank nor any other
subsidiary has any agreement or understanding with any entity
concerning the future acquisition of a controlling interest in the
Company, the Bank or any other subsidiary by any entity that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed
by the Company that is not disclosed in the Prospectus.
(xxviii) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the General
Corporation Law of the State of Delaware with the power and authority
to own, lease and operate its properties and conduct its business, and
has so conducted its business, as described in the Prospectus; all of
the outstanding Trust Preferred Securities have been duly authorized
and validly issued and are fully paid and non-assessable, and none of
the outstanding Trust Preferred Securities was issued in violation of
the preemptive rights of any stockholder of the Company; all of the
outstanding common securities representing undivided beneficial
interests in the assets of the Trust have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by
the Company, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind.
(xxix) The separate Purchase and Sale Agreements (the
"NationsBank Branch Agreements"), dated as of December 15, 1997, by
and between the Company and NationsBank Corporation ("NationsBank")
were duly authorized, executed and delivered by the Company and
constitute valid, legal and binding obligations of the Company
enforceable in accordance with their terms, except as enforcement may
be limited by
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bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights generally or by general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law). The Company had full corporate power and authority
to enter into the NationsBank Branch Agreements. The execution,
delivery and performance of the NationsBank Branch Agreements and the
consummation of the transactions contemplated thereby will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, loan
agreement, mortgage, deed of the Company or any of its subsidiaries or
other material agreement or instrument to which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
actions result in the violation of the provisions of the articles of
incorporation or by-laws of the Company or any of its subsidiaries or
any indenture or agreement of any subsidiary or any statute or any
order or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries; and no
consent, approval, authorization or order of, or any filing with, any
court or governmental agency or body is required for the execution,
delivery and performance of the NationsBank Branch Agreements and the
transactions contemplated thereby, except such as may be required
under the 1933 Act or state securities laws or regulatory approvals
contemplated by the NationsBank Branch Agreements. The Company is not
in breach or default of any of the terms and provisions of the
NationsBank Branch Agreements and, to the knowledge of the Company,
NationsBank is not in breach or default of any of the terms and
provision of the NationsBank Branch Agreements. To the knowledge of
the Company, each of the representations and warranties of NationsBank
contained in the NationsBank Branch Agreements is true and correct in
all material respects.
(xxx) The Agreement and Plan of Merger (the "Bank Acquisition
Agreement") dated as of March 2, 1998, by and between the Company and
Bankers Savings Bank, F.S.B. ("Acquired Bank") was duly authorized,
executed and delivered by the Company and constitutes a valid, legal
and binding obligation of the Company enforceable in accordance with
its terms, except as enforcement may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law). The Company had full corporate power and authority to
enter into the Bank Acquisition Agreement. The execution, delivery and
performance of the Bank Acquisition Agreement and the consummation of
the transactions contemplated thereby will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, loan agreement, mortgage,
deed of the Company or any of is subsidiaries or other material
agreement or instrument to which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such actions
result in the violation of the provisions of the articles of
incorporation or by-laws of the Company or any of its subsidiaries or
any indenture or agreement of any subsidiary or any statute or any
order or decree of any court or governmental agency or body having
jurisdiction over
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the Company or any of its subsidiaries; and no consent, approval,
authorization or order of, or any filing with, any court or
governmental agency or body is required for the execution, delivery
and performance of the Bank Acquisition Agreement and the transactions
contemplated thereby, except such as may be required under the 1933
Act or state securities laws or regulatory approvals contemplated by
the Bank Acquisition Agreement. The Company is not in breach or
default of any of the terms and provisions of the Bank Acquisition
Agreement and, to the knowledge of the Company, Acquired Bank is not
in breach or default of any of the terms and provision of the Bank
Acquisition Agreement. To the knowledge of the Company, each of the
representations and warranties of Acquired Bank contained in the Bank
Acquisition Agreement is true and correct in all material respects.
(xxxi) The Purchase and Sale Agreement (the "Dime Branch
Agreement"), dated as of March ____, 1998, by and between the Company
and Dime Savings Bank, F.S.B. ("Dime") was duly authorized, executed
and delivered by the Company and constitutes a valid, legal and
binding obligation of the Company enforceable in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency
or other laws relating to or affecting enforcement of creditors'
rights generally or by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
The Company had full corporate power and authority to enter into the
Dime Branch Agreement. The execution, delivery and performance of the
Dime Branch Agreement and the consummation of the transactions
contemplated thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, loan agreement, mortgage, deed of the
Company or any of its subsidiaries or other material agreement or
instrument to which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in the violation
of the provisions of the articles of incorporation or by-laws of the
Company or any of its subsidiaries or any indenture or agreement of
any subsidiary or any statute or any order or decree of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries; and no consent, approval, authorization or
order of, or any filing with, any court or governmental agency or body
is required for the execution, delivery and performance of the Dime
Branch Agreement and the transactions contemplated thereby, except
such as may be required under the 1933 Act or state securities laws or
regulatory approvals contemplated by the Dime Branch Agreement. The
Company is not in breach or default of any of the terms and provisions
of the Dime Branch Agreement and, to the knowledge of the Company,
Dime is not in breach or default of any of the terms and provision of
the Dime Branch Agreement. To the knowledge of the Company, each of
the representations and warranties of Dime contained in the Dime
Branch Agreement is true and correct in all material respects.
For purposes of this Agreement, the NationsBank Branch Agreements
and the Dime Branch Agreement are collectively referred to as the
"Branch Agreements."
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(b) Any certificate signed by any authorized officer of the
Company or the Bank and delivered to the Underwriters or to counsel for the
Underwriters pursuant to this Agreement shall be deemed a representation and
warranty by the Company to the Underwriters as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriters, Closing.
(a) 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 the Underwriters, and the Underwriters agree to purchase from
the Company, 2,000,000 Initial Securities at the purchase price and terms set
forth herein and in the Price Determination Agreement.
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 Underwriters to purchase up to an
additional 300,000 Common Securities in accordance with the terms set forth
herein and in the Price Determination Agreement. The option hereby granted will
expire at 5:00 p.m. on the 30th day after the date the Registration Statement is
declared effective by the Commission (or at 5:00 p.m. on the next business day
if such 30th day is not a business day) and may be exercised, on one occasion
only, solely for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by you to the Company setting forth the number of Option Securities as to
which the Underwriters are exercising the option and the time, date and place of
payment and delivery for the Option Securities. Such time and date of delivery
(the "Option Closing Date") shall be determined by the Underwriters but shall
not be later than five full business days after the exercise of said option, nor
in any event prior to Closing Time, as hereinafter defined, nor earlier than the
second business day after the date on which the notice of the exercise of the
option shall have been given.
(b) Payment of the purchase price for, and delivery of certificates
for, the Initial Securities shall be made at the offices of Holland & Knight
LLP, St. Petersburg, Florida, or at such other place as shall be agreed upon by
the Company and the Underwriters, at 9:30 a.m. on the third full business day
after the effective date of the Registration Statement, or at such other time
not earlier than three nor more than ten full business days thereafter as you
and the Company shall determine (such date and time of payment and delivery
being herein called the "Closing Time"). In addition, in the event that any or
all of the Option Securities are purchased by the Underwriters, payment of the
purchase price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned office of Holland & Knight LLP, or at such
other place as shall be agreed upon by the Company and the Underwriters, on the
Option Closing Date as specified in the notice from the Underwriters to the
Company. Payment for the Initial Securities and the Option Securities, if any,
shall be made to the Company by wire transfer of immediately available funds,
against delivery to the Underwriters for the respective accounts of the
Underwriters of Common Securities to be purchased by each.
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(c) The Initial Securities shall be issued in the form of one or more
fully registered global securities (the "Global Securities") in book-entry form
in such denominations and registered in the name of the nominee of The
Depository Trust Company (the "DTC") or in such names as the Underwriters may
request in writing at least one business day before the Closing Date or the
Option Closing Date, as the case may be. The Global Securities representing the
Initial Securities or the Option Securities to be purchased will be made
available for examination by the Underwriters and counsel to the Underwriters
not later than 10:00 A.M. on the business day prior to the Closing Time or the
Option Closing Date, as the case may be.
Section 3. Certain Covenants of the Company. The Company covenants
with the Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective and will notify the Underwriters immediately, and
confirm the notice in writing, (i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, shall have become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request of the Commission to amend the Registration Statement or amend or
supplement the Prospectus or for additional information and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the Common
Securities or capital stock, for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such purposes. The
Company will use every reasonable effort to prevent the issuance of any such
stop order or of any order preventing or suspending such use and, if any such
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to
the Registration Statement, or any amendment or supplement if the Company has
elected to rely upon Rule 430A, to the Prospectus (including documents
incorporated by reference into such prospectus or to the Prospectus) of which
the Underwriters shall not have previously been advised and have previously been
furnished a copy, or to which the Underwriters or counsel for the Underwriters
shall reasonably object.
(c) The Company has furnished or will furnish to you as many signed
and conformed copies of the Registration Statement as originally filed and of
each amendment thereto, whether filed before or after the Registration Statement
becomes effective, copies of all exhibits and documents filed therewith
(including documents incorporated by reference into the Prospectus pursuant to
Item 12 of Form S-2 under the 0000 Xxx) and signed copies of all consents and
certificates of experts as you may reasonably request.
(d) The Company will deliver or cause to be delivered to the
Underwriters, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as the
Underwriters may reasonably request, and the Company hereby
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consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will deliver or cause to be delivered to the Underwriters, without
charge, as soon as the Registration Statement shall have become effective (or,
if the Company has elected to rely upon Rule 430A, as soon as practicable after
the Price Determination Agreement has been executed and delivered) and
thereafter from time to time as requested during the period when the Prospectus
is required to be delivered under the 1933 Act, such number of copies of the
Prospectus (as supplemented or amended) as the Underwriters may reasonably
request.
(e) The Company will comply to the best of its ability with the 1933
Act and the1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations,
so as to permit the completion of the distribution of the Common Securities as
contemplated in this Agreement and in the Prospectus. If, at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Common Securities, any event shall occur or condition exist as a result
of which it is necessary, in the reasonable opinion of counsel for the
Underwriters or counsel for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus 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 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 either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Common Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Underwriters may designate and to maintain such qualifications in effect for a
period of not less than one year from the effective date of the Registration
Statement; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Common Securities have been qualified as above provided.
(g) The Company will make generally available (within the meaning of
Rule 158) to its securityholders and the Underwriters as soon as practicable,
but not later than 90 days after the close of the period covered thereby, an
earnings statement of the Company and its subsidiaries (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering a period of at
least 12 months beginning after the effective date of the Registration Statement
but not later than the first day of the Company's fiscal quarter next following
such effective date.
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(h) The Company and the Bank will use the net proceeds received by
them from the sale of the Common Securities in the mariner specified in the
Prospectus under the caption "Use of Proceeds."
(i) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act
subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company
will furnish to the Underwriters copies of all annual reports, quarterly reports
and current reports filed with the Commission on Forms 10K, 10Q and 8-K, or such
other similar forms as may be designated by the Commission and such other
documents, reports, Proxy Statements and information as shall be furnished by
the Company to its stockholders generally.
(k) The Company will file with the Nasdaq Stock Market all documents
and notices required by the Nasdaq Stock Market of companies that have issued
securities that are traded on the National Market, in the over-the-counter
market and quotations for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay the legal fees and related filing fees of
counsel to the Underwriters to prepare one or more "blue sky" surveys (each, a
"Blue Sky Survey") for use in connection with the offering of the Common
Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey
or surveys shall be delivered to each of the Company and the Underwriters.
(m) If, at the time the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A of the
1933 Act Regulations, then the Company will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule 424(b),
copies of an amended Prospectus, or, if required by such Rule 430A, a
post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance of
the Common Securities, prepare and distribute to each of the Underwriters and
counsel to the Underwriters, copies of the documents used in connection with the
issuance of the Common Securities.
(o) The Company will not, prior to the Option Closing Date or thirty
(30) days after the date of this Agreement, whichever occurs first, incur any
material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, except as
contemplated by the Prospectus.
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(p) During a period of thirty (30) days from the date of the
Prospectus, the Company will not, without the prior written consent of the
Underwriters, directly or indirectly, offer, sell, offer to sell, or otherwise
dispose of any Common Securities, or other securities of the Company or any
subsidiaries that are substantially similar to the Common Securities, including
any guarantee of such securities. The foregoing sentence shall not apply to any
of the Common Securities to be sold hereunder.
Section 4. Payment of Expenses and Independent Underwriter Fee.
(a) The Company will pay and bear all costs and expenses incident to
the performance of its obligations under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereof to the Underwriters, (b) the
preparation, printing and distribution of this Agreement, the Common Securities
and the Blue Sky Survey, (c) the issuance and delivery of the Common Securities
to the Underwriters, including any transfer taxes payable upon the sale of the
Common Securities to the Underwriters, (d) the fees and disbursements of the
Company's counsel and accountants, (e) NASD filing fees, (f) fees and
disbursements of counsel to the Company in connection with the Blue Sky Survey
(such counsel's fees shall not exceed $10,000 exclusive of out-of-pocket
expenses of counsel), (g) the qualification of the Common Securities under the
applicable securities laws in accordance with Section 3(f) and any filing fee
for review of the offering with the NASD, (h) the legal fees and expenses of the
Underwriters' counsel (such counsel's fees shall not exceed $55,000 exclusive of
out-of-pocket expenses of counsel) and general out-of-pocket expenses of the
Underwriters, and (i) all other costs incident to the performance of the
Company' obligations hereunder.
(b) The Independent Underwriter shall be entitled to the payment of a
fee of $10,000 for fulfilling its obligations as Independent Underwriter that
shall be payable at the Closing Time, provided that such fee shall be payable
out of the commissions due to the Underwriters under the Price Determination
Agreement.
If (i) the Closing Time does not occur on or before June 30, 1998,
(ii) the Company abandons or terminates the Offering, or (iii) this Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5 or
9(a), the Company shall reimburse the Underwriters for all their reasonable
out-of-pocket expenses, as set forth in this Section 4, including the reasonable
fees and disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Common Securities that each has
respectively agreed to purchase pursuant to this Agreement are subject to the
accuracy of the representations and warranties of the Company contained herein
or in certificates of the officers of the Company or any subsidiary delivered
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following further conditions:
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(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date of this Agreement or, with your consent, at a later
time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time or on such later date as you
may agree to in writing; at the Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the Underwriters' knowledge or the knowledge of the Company,
shall be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Underwriters. If the Company has elected to rely
upon Rule 430A, 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 430A).
(b) At the Closing Time, you shall have received:
(i) The favorable opinion, dated as of Closing Time, of
Holland & Knight LLP, special counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit C.
(ii) The favorable opinion, dated as of Closing Time, of
Smith, Mackinnon, Greeley, Bowdoin & Xxxxxxx, P.A., counsel for the
Underwriters, in form and substance satisfactory to the Underwriters.
In giving such opinions, such counsel may rely, as to all matters
governed by the laws of jurisdictions other then the federal law of the United
States, upon opinions of other counsel, who shall be counsel satisfactory to
counsel for the Underwriters in which case the opinion shall state that counsel
believes that you and your counsel are entitled to so rely. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Bank and certificates of public officials.
(c) At the Closing Time and again at the Option Closing Date, (i) the
Registration Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, the Company shall have complied in all material respects with Rule
430A (if it shall have elected to rely thereon) and neither the Registration
Statement nor the Prospectus, as they may then be amended or supplemented, shall
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, (ii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its
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subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (iii) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Company, threatened against
the Company or any subsidiary, that would be required to be set forth in the
Prospectus other than as set forth therein and no proceedings shall be pending
or, to the knowledge of the Company, threatened against the Company or any
subsidiary before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding could
reasonably be expected to materially adversely affect the condition (financial
or otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, other than as set
forth in the Prospectus, (iv) the Company shall have complied, in all material
respects, with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time or Option Closing Date,
as applicable, (v) the other representations and warranties of the Company set
forth in Section l(a) shall be accurate in all material respects as though
expressly made at and as of the Closing Time or Option Closing Date, as
applicable, and (vi) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
been initiated or, to the knowledge of the Company, threatened by the
Commission. At the Closing Time, the Underwriters shall have received a
certificate of the Chairman and of the Chief Financial Officer or Controller of
the Company, dated as of the Closing Time, to such effect.
(d) At the time that this Agreement is executed by the Company, you
shall have received from Xxxxxx Xxxxxxxx LLP a letter dated such date, in form
and substance satisfactory to you, confirming that they are independent
certified public accountants with respect to the Company within the meaning of
the 1933 Act and the published 1933 Act Regulations, and stating in effect that,
with respect to the Company:
(i) in their opinion, the consolidated financial statements as
of December 31, 1997 and 1996, and for each of the years in the three
year period ended December 31, 1997 and the related financial
statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their
opinions included therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
published 1933 Act Regulations;
(ii) on the basis of procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, interim financial
information for the unaudited interim consolidated financial
information of the Company for the three-month period ended March 31,
1998 and March 31, 1997, including a reading of the latest available
unaudited interim consolidated financial statements for the Company, a
reading of the minutes of all meetings of the Board of Directors of
the Company and the Bank and of the Audit and Executive Committees of
the Board of Directors since January 1, 1998, inquiries of certain
officials of the Company and its subsidiaries responsible for
financial and accounting matters, and such other
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inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited interim consolidated financial information
included as Recent Developments in the Prospectus are not
presented in conformity with generally accepted accounting
principles applied on a basis consistent with that of the
audited financial statements included in the Prospectus;
(B) at a specified date not more than three days prior to
the date of this Agreement, there was any increase in the
capital stock, long-term debt, Federal Home Loan Bank
advances or real estate owned or any decrease in total
assets, deposits, loan loss allowance or stockholders'
equity of the Company and its consolidated subsidiaries, in
each case as compared with amounts shown in the financial
statements at December 31, 1997 included in the Registration
Statement, except in all cases for increases or decreases
that the Registration Statement discloses have occurred or
may occur; or
(C) for the period from January 1, 1998 to a specified date
not more than three days prior to the date of this
Agreement, there was any decrease in net interest income,
non-interest income or net income or net income per common
and common equivalent share, or any increase in the
provision for loan losses or non-interest expense in each
case as compared with a period of comparable length in the
preceding year, except in all cases for increases or
decreases that the Registration Statement discloses have
occurred or may occur; and
(iii) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the Registration
Statement (including the Selected Consolidated Financial Data and
Recent Developments) having compared such items with, and having found
such items to be in agreement with, the financial statements of the
Company or general accounting records of the Company, as applicable,
which are subject to the Company's internal accounting controls or
other data and schedules prepared by the Company from such records;
and
(iv) on the basis of a review of schedules provided to them by
the Company, nothing came to their attention that caused them to
believe that the pro forma information, set forth in the Prospectus
under the heading "Capitalization" and "Pro Forma Financial Data" had
not been correctly calculated on the basis described therein.
(e) At the Closing Time, the Underwriters shall have received from
Xxxxxx Xxxxxxxx LLP a letter, in form and substance satisfactory to the
Underwriters and dated as of the Closing Time, to the effect that it reaffirms
the statements made in the letter furnished pursuant to Section 5(d), except
that the inquiries specified in Section 5(d) shall be made based upon the latest
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available unaudited interim consolidated financial statements and the specified
date referred to shall be a date not more than three days prior to the Closing
Time.
(f) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may request
for the purpose of enabling them to pass upon the issuance and sale of the
Common Securities as contemplated in this Agreement and the matters referred to
in Section 5(c) and in order to evidence the accuracy and completeness of any of
the representations, warranties or statements of the Company, the performance of
any of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company at or prior to the
Closing Time in connection with the authorization, issuance and sale of the
Common Securities as contemplated in this Agreement shall be satisfactory in
form and substance to the Underwriters and to counsel for the Underwriters.
(g) Between the date of this Agreement and the Closing Time, (i) no
downgrading shall have occurred in the rating accorded any securities of the
Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organizations" as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
(h) The Company shall have paid, or made arrangements satisfactory to
the Underwriters for the payment of, all such expenses as may be required by
Section 4 hereof.
(i) In the event the Underwriters exercise their option provided in
Section 2 hereof to purchase all or any portion of the Option Securities, the
obligations of the Underwriters to purchase the Option Securities that they have
agreed to purchase shall be subject to the accuracy of the representations and
warranties of the Company contained herein and of the statements in any
certificates furnished by the Company hereunder as of such Option Closing Date
(as if made on such date), to the performance by the Company of its obligations
hereunder and to the receipt by you on the Option Closing Date of:
(1) A certificate, dated the Option Closing Date, of the
Chairman and of the Chief Financial Officer or Controller of the
Company confirming that the certificate delivered on the Closing
Time pursuant to Section 5(c) hereof remains true as of the Option
Closing Date;
(2) The favorable opinion of Holland & Knight LLP, counsel
for the Company, addressed to you and dated the Option Closing
Date, in form satisfactory to Smith, Mackinnon, Greeley, Bowdoin &
Xxxxxxx, P.A., counsel to the Underwriters, relating to the Option
Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof;
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(3) The favorable opinion of Smith, Mackinnon, Greeley,
Bowdoin & Xxxxxxx, P.A., dated the Option Closing Date, relating
to the Option Shares and otherwise to the same effect as the
opinion required by Section 5(b) hereof; and
(4) A letter from Xxxxxx Xxxxxxxx LLP addressed to each of
the Underwriters and dated the Option Closing Date, in form and
substance satisfactory to the Underwriters and substantially the
same in form and substance as the letter furnished to the
Underwriters pursuant to Section 5(d) hereof.
(j) The Common Securities shall have been qualified or registered for
sale, or subject to an available exemption from such qualification or
registration, under the Blue Sky or securities laws of such jurisdictions as
shall have been reasonably specified by the Underwriters and the offering
contemplated by this Agreement shall have been cleared by the NASD.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Underwriters on notice to the Company at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other Party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6, 7, 10, 12
and 13 shall remain in effect.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriters, officers, directors, employees, agents and counsel of the
Underwriters (including any Underwriter in its role as Independent Underwriter),
and each person, if any, who controls the Underwriters within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any loss,
liability, claim, damage, and expense whatsoever (which shall include, but not
be limited to, amounts incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any Preliminary Prospectus, the Registration Statement, or the Prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any Preliminary Prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Common Securities under the "blue sky" or securities
laws thereof or filed with the Commission or any securities exchange; unless
such statement or omission or alleged statement or omission was made in reliance
upon and in conformity with written information concerning the Underwriters, the
Underwriting Agreement or the compensation of the
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Underwriters furnished to the Company by or on behalf of the Underwriters
expressly for inclusion in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or in any
application, as the case may be, or (ii) any breach of any representation,
warranty, covenant or agreement of the Company contained in the Underwriting
Agreement. For purposes of this section, the term "expense" shall include, but
not be limited to, counsel fees and costs, court costs, out-of-pocket costs and
compensation for the time spent by the Underwriters' directors, officers,
employees and counsel according to his or her normal hourly billing rates. The
indemnification provisions shall also extend to all affiliates of the
Underwriters, their respective directors, officers, employees, legal counsel,
agents and controlling persons within the meaning of the federal securities
laws. The foregoing agreement to indemnify shall be in addition to any liability
the Company may otherwise have to the Underwriters or the persons entitled to
the benefit of these indemnification provisions.
(b) The Underwriters agree to indemnify and hold harmless the Company,
its directors, officers who signed the Registration Statement and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20(a) of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
above, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) or any application in reliance upon and in
conformity with written information about the Underwriters, the Underwriting
Agreement or the compensation of the Underwriters, furnished to the Company by
the Underwriters expressly for use in the Registration Statement (or any
amendment thereto) or such Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) or in any application.
(c) An indemnified party shall give prompt notice to the indemnifying
party if any action, suit, proceeding or investigation is commenced in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve the indemnifying party from its obligations
to indemnify hereunder, except to the extent that the indemnifying party has
been prejudiced in any material respect by such failure. If it so elects within
a reasonable time after receipt of such notice, an indemnifying party may assume
the defense of such action, including the employment of counsel satisfactory to
the indemnified parties and payment of all expenses of the indemnified party in
connection with such action. Such indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action
or the indemnifying party shall not have promptly employed counsel reasonably
satisfactory to such indemnified party or parties or such indemnified party or
parties shall have reasonably concluded that there may be one or more legal
defenses available to it or them or to other indemnified parties that are
different from or additional to those available to one or more of the
indemnifying parties, in any of which events such fees and expenses shall be
borne by the indemnifying party and the indemnifying party shall not have the
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right to direct the defense of such action on behalf of the indemnified party or
parties. The Company shall be liable for any settlement of any claim against the
Underwriters (or their directors, officers, employees, affiliates or controlling
persons), made with the Company's written consent, which consent shall not be
unreasonably withheld. The Company shall not, without the written consent of the
Underwriters, settle or compromise any claim against them based upon
circumstances giving rise to an indemnification claim against the Company
hereunder unless such settlement or compromise provides that the Underwriters
and the other indemnified parties shall be unconditionally and irrevocably
released from all liability in respect to such claim.
(d) In order to provide for just and equitable contribution, if a
claim for indemnification pursuant to these indemnification provisions is made
but it is found in a final judgment by a court that such indemnification may not
be enforced in such case, even though the express provisions hereof provide for
indemnification in such case, then the Company, on the one hand, and the
Underwriters, on the other hand, shall contribute to the amount paid or payable
by such indemnified persons as a result of such loss, liability, claim, damage
and expense in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the
other hand, from the underwriting, and also the relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the
statements, acts or omissions which resulted in such loss, liability claim,
damage and expense, and any other relevant equitable considerations shall also
be considered. No person found liable for a fraudulent misrepresentation or
omission shall be entitled to contribution from any person who is not be found
liable for such fraudulent misrepresentation or omission. Notwithstanding the
foregoing, the Underwriters shall not be obligated to contribute any amount
hereunder that exceeds the amount of the underwriting commission paid by the
Company to the Underwriters with respect to the Common Securities purchased by
the Underwriters.
(e) The indemnity and contribution agreements contained herein are in
addition to any liability which the Company may otherwise have to the
Underwriters.
(f) Neither termination nor completion of the engagement of the
Underwriters nor any investigation made by or on behalf of the Underwriters
shall affect the indemnification obligations of the Company or the Underwriters
hereunder, which shall remain and continue to be operative and in full force and
effect.
Section 7. Representations, Warranties and Agreements to Survive
Delivery. The representations, warranties, indemnities, agreements and other
statements of the Company or its officers set forth in or made pursuant to this
Agreement will remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company or the Underwriters or any
controlling person and will survive delivery of and payment for the Common
Securities.
Section 8. Offering by the Underwriters. The Company is advised by the
Underwriters that the Underwriters propose to make a public offering of the
Common Securities, on the terms
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and conditions set forth in the Registration Statement from time to time as and
when the Underwriters deem advisable after the Registration Statement becomes
effective.
Section 9. Termination of Agreement.
(a) You may terminate this Agreement, by notice to the Company, at any
time at or prior to the Closing Time (i) if there has been, since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition (financial or otherwise, earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course of
business), or (ii) if there has occurred any outbreak or escalation of existing
hostilities or other national or international calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the Underwriters' reasonable judgment, impracticable to market the Common
Securities or enforce contracts for the sale of the Common Securities, or (iii)
if trading in any securities of the Company has been suspended by the Commission
or the National Association of Securities Dealers, Inc., or if trading generally
on the New York Stock Exchange or in the over-the-counter market has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by such exchange or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority with appropriate jurisdiction over such
matters, or (iv) if a banking moratorium has been declared by either federal or
Florida authorities, or (v) if there shall have been such material and
substantial change in the market for securities in general or in political,
financial or economic conditions as in your reasonable judgment makes it
inadvisable to proceed with the Offering, sale and delivery of the Common
Securities on the terms contemplated by the Prospectus, or (vi) if you
reasonably determine (which determination shall be in good faith) that there has
not been satisfactory disclosure of all relevant financial information relating
to the Company in the Company's disclosure documents and that the sale of the
Common Securities is inadvisable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 6, 7, 10, 12 and 13 shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Initial
Securities that it or they are obligated to purchase pursuant to this Agreement
(the "Defaulted Securities"), you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
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(a) if the aggregate amount of Defaulted Securities does not exceed
10% of the aggregate amount of Initial Securities, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective Initial Securities underwriting obligation
proportions bear to the underwriting obligations of all non-defaulting
Underwriters; or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of the
aggregate amount of Initial Securities, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect to its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices shall be addressed as follows:
If to the Underwriters:
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx, First Vice President
and
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxx, Senior Vice President
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with a copy to:
Smith, Mackinnon, Greeley, Bowdoin & Xxxxxxx, P.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
If to the Company or the Company:
Republic Bancshares, Inc.
000 Xxxxxx Xxxxxx, X.X.
Xxxxx Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Chairman, Chief Executive
Officer and President
with a copy to:
Holland & Knight LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Section 12. Parties. This Agreement is made solely for the benefit of
the Underwriters, and the officers, directors, employees, agents and counsel of
the Underwriters specified in Section 6, the Company and, to the extent
expressed, any person controlling the Company or the Underwriters, and the
directors of the Company, their respective officers who have signed the
Registration Statement, and their respective executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include any purchaser, as such purchaser, from the Underwriters of the
Common Securities.
Section 13. Arbitration. Any claims, controversies, demands, disputes
or differences between or among the parties hereto or any persons bound hereby
arising out of, or by virtue of, or in connection with, or otherwise relating to
this Agreement shall be submitted to and settled by arbitration conducted in
Tampa, Florida before one or three arbitrators, each of whom shall be
knowledgeable in the field of securities law and investment banking. Such
arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or in any other tribunal, arbitration
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system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 14. Governing Law and Time. This Agreement shall be governed
by the laws of the State of Florida. Specified times of the day refer to New
York City time.
Section 15. Severability. In the event that any provision or any
portion of any provision of this Agreement shall be held invalid, illegal or
unenforceable under applicable, law the remainder of this Agreement shall remain
valid and enforceable.
Section 16. Counterparts. This Agreement may be executed in one or
more counterparts, and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
REPUBLIC BANCSHARES, INC.
By:
------------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
XXXXXXX X. XXXXX & CO.
By:
--------------------------
Name:
Title:
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XXXX, XXXX & CO., INC.
By:
--------------------------
Name:
Title:
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SCHEDULE A
Amount of Percentage of
Initial Securities Initial Securities
Underwriter to be Purchased to be Purchased
----------- --------------- ---------------
Xxxxxxx X. Xxxxx & Co. _________ ___%
Xxxx, Xxxx & Co., Inc. _________ ___%
TOTAL _________ ___%
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EXHIBIT A
REPUBLIC BANCSHARES, INC.
(a Florida corporation)
2,000,000 Shares of Common Stock
PRICE DETERMINATION AGREEMENT
_______________, 1998
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated the date hereof
(the "Underwriting Agreement"), among Republic Bancshares, Inc. (the "Company")
and the Underwriters named above (the "Underwriters"). The Underwriting
Agreement provides for the purchase by the Underwriters from the Company,
subject to the terms and conditions set forth therein, of 2,000,000 shares of
the common stock, par value $2.00 per share (the "Common Stock"), subject to a
300,000 share increase (to cover over-allotments, if any). This Agreement is the
Price Determination Agreement referred to in the Underwriting Agreement.
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Pursuant to Section 2 of the Underwriting Agreement, the Company agrees
with the Underwriters as follows:
1. The public offering price per Common Stock shall be $______.
2. The purchase price for the Common Stock to be paid by the
Underwriters shall be $______ per Common Stock.
3. The commission per Common Stock to be paid by the Company to the
Underwriters for their commitments hereunder shall be $_______ per Common Stock.
The Company represents and warrants to the Underwriters that the
representations and warranties of the Company set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of Florida.
If the foregoing is in accordance with the understanding of the
Underwriters of the agreement between the Underwriters and the Company, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriters and the Company in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
REPUBLIC BANCSHARES, INC.
By:
------------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
XXXXXXX X. XXXXX & CO. XXXX, XXXX & CO., INC.
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
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EXHIBIT B
MASTER SELECTED DEALER AGREEMENT
Gentlemen:
(1) General. We understand that Xxxxxxx X. Xxxxx & Co. is entering into
this Agreement with us and other firms who may be offered the right to purchase
as principal a portion of securities being distributed to the public. The terms
and conditions of this Agreement shall be applicable to any public offering of
securities ("Securities") pursuant to a registration statement filed under the
Securities Act of 1933 (the "Securities Act") wherein Xxxxxxx X. Xxxxx & Co.
(acting for its own account or for the account of any underwriting or similar
group or syndicate) is responsible for managing or otherwise implementing the
sale of the Securities to selected dealers ("Selected Dealers") and has informed
us that such terms and conditions shall be applicable. Any such offering of
Securities to us as a Selected Dealer is hereinafter called an "Offering." In
the case of any Offering in which you are acting for the account of any
underwriting or similar group or syndicate ("Underwriters"), the terms and
conditions of this Agreement shall be for the benefit of, and binding upon, such
Underwriters, including, in the case of any Offering in which you are acting
with others as representatives of Underwriters, such other representatives. The
term "preliminary prospectus" means any preliminary prospectus relating to an
Offering of Securities or any preliminary prospectus supplement together with a
prospectus relating to an Offering of Securities; the term "Prospectus" means
the prospectus, together with the final prospectus supplement, if any, relating
to an Offering of Securities, filed pursuant to Rule 424(b) or Rule 424(c) under
the Securities Act or any successor or similar rules.
(2) Conditions of Offering Acceptance and Purchase. Any Offering will be
subject to delivery of the Securities and their acceptance by you and any other
Underwriters, may be subject to the approval of all legal matters by counsel and
the satisfaction of other conditions, and may be made on the basis of
reservation of Securities or an allotment against subscription. You will advise
us by telegram, telex, facsimile, e-mail, or other form of written communication
("Written Communication") of the particular method and supplementary terms and
conditions (including, without limitation, the information as to prices and
offering date referred to in Section 3(b)) of any Offering in which we are
invited to participate. To the extent such supplementary terms and conditions
are inconsistent with any provision herein, such terms and conditions shall
supersede any such provision. Unless otherwise indicated in any such Written
Communication, acceptances and other communications by us with respect to any
Offering should be sent to Xxxxxxx X. Xxxxx & Co. You reserve the right to
reject any acceptance in whole or in part. Payment for Securities purchased by
us is to be made at such office as you may designate, at the public offering
price, or, if you shall so advise us, at such price less the concession to
dealers or at the price set forth or indicated in a Written Communication, on
such date as you shall determine, on one day's prior notice to us, by wire
transfer to a Xxxxxxx X. Xxxxx & Co. account, against delivery of certificates
or other forms evidencing such Securities. If payment is made for Securities
purchased
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by us at the public offering price, the concession to which we shall be entitled
will be paid to us upon termination of the provisions of Section 3(b) with
respect to such Securities.
Unless we promptly give you written instructions otherwise, if
transactions in the Securities may be settled through the facilities of The
Depository Trust Company, delivery of Securities purchased by us will be made
through such facilities if we are a member, or if we are not a member,
settlement may be made through our ordinary correspondent who is a member.
(3) Representations, Warranties, and Agreements.
(a) Prospectuses. You shall provide us with such number of copies of each
preliminary, prospectus, the Prospectus and any supplement thereto relating to
each Offering as we may reasonably request for the purposes contemplated by the
Securities Act and the Securities Exchange Act of 1934 (Exchange Act) and the
applicable Rules and regulations of the Securities and Exchange Commission
thereunder. We represent that we are familiar with Rule 15c2-8 under the
Exchange Act relating to the distribution of preliminary and final prospectuses
and agree that we will comply therewith. We agree to keep an accurate record of
our distribution (including dates, number of copies, and persons to whom sent)
of copies of the Prospectus or any preliminary prospectus (or any amendment or
supplement to any thereof), and promptly upon request by you, to bring all
subsequent changes to the attention of anyone to whom such material shall have
been furnished. We agree to furnish to persons who receive a confirmation of
sale a copy of the Prospectus filed pursuant to Rule 424(b) or Rule 424(c) under
the Securities Act. We agree that in purchasing Securities in an Offering we
will rely upon no statements whatsoever, written or oral, other than the
statements in the Prospectus delivered to us by you. We will not be authorized
by the issuer or other seller of Securities offered pursuant to a Prospectus or
by any Underwriters to give any information or to make any representation not
contained in the Prospectus in connection with the sale of such Securities.
(b) Offer and Sale to the Public. With respect to any Offering of
Securities, you will inform us by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to dealers, and the time
when we may commence selling Securities to the public. After such public
offering has commenced, you may change the public offering price, the selling
concession, and the reallowance to dealers. With respect to each Offering of
Securities, until the provisions of this Section 3(b) shall be terminated
pursuant to Section 4, we agree to offer Securities to the public only at the
public offering price, except that if a reallowance is in effect, a reallowance
from the public offering price not in excess of such reallowance may be allowed
as consideration for services in distribution to dealers who are actually
engaged in the investment banking or securities business, who execute the
written agreement prescribed by Rule 2740 of the Rules of Conduct of the
National Association of Securities Dealers, Inc. (the "NASD") and who are either
members in good standing of the NASD or foreign brokers or dealers not eligible
for membership in the NASD who represent to us that they will promptly reoffer
such Securities at the public offering price and will abide by the conditions
with respect to foreign brokers and dealers set forth in Section 3(e).
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(c) Stabilization and Overallotment. You may, with respect to any
Offering, be authorized to over-allot in arranging sales to Selected Dealers, to
purchase and sell Securities, any other securities of the issuer of the
Securities of the same class and series and any other securities of such issuer
that you may designate for long or short account, and to stabilize or maintain
the market price of the Securities. We agree to advise you from time to time
upon request, prior to the termination of the provisions of Section 3(b) with
respect to any Offering, of the amount of Securities purchased by us hereunder
remaining unsold and we will, upon your request, sell to you, for the accounts
of the Underwriters, such amount of Securities as you may designate, at the
public offering price thereof less an amount to be determined by you not in
excess of the concession to dealers. In the event that prior to the later of (i)
the termination of the provisions of Section 3(b) with respect to any Offering,
or (ii) the covering by you of any short position created by you in connection
with such Offering for your account or the account of one or more Underwriters,
you purchase or contract to purchase for the account of any of the Underwriters,
in the open market or otherwise, any securities delivered to us, you reserve the
right to withhold the above-mentioned concession to dealers on such Securities
if sold to us at the public offering price, or if such concession has been
allowed to us through our purchase at a net price, we agree to repay such
concession upon your demand, plus in each case any taxes on redelivery,
commissions, accrued interest, and dividends paid in connection with such
purchase or contract to purchase.
(d) Open Market Transactions. We agree to abide by Regulation M under the
Exchange Act and we agree not to bid for, purchase, attempt to purchase, or
sell, directly or indirectly, any Securities, any other Reference Securities (as
defined in Regulation M) of the issuer, or any other securities of such issuer
as you may designate, except as brokers pursuant to unsolicited orders and as
otherwise provided in this Agreement. If the Securities are common stock or
securities convertible into common stock, we agree not to effect, or attempt to
induce others to effect, directly or indirectly, any transactions in or relating
to any stock of such issuer, except to the extent permitted by Rule 101 of
Regulation M under the Exchange Act.
(e) NASD. We represent that we are actually engaged in the investment
banking or securities business and we are either a member in good standing of
the NASD, or, if not such a member, a foreign dealer not eligible for
membership. If we are such a member we agree that in making sales of the
Securities we will comply with all applicable Rules of the NASD, including,
without limitations the NASD's Interpretation with Respect to Free-Riding and
Withholding and Rule 2740 of the Conduct Rules. If we are such a foreign dealer,
we agree not to offer or sell any Securities in the United States of America
except through you and in making sales of Securities outside the United States
of America we agree to comply as though we were a member with such
Interpretation and Rule 2730, 2740 and 2750 of the Conduct Rules of the NASD and
to comply with Rule 2420 of the Conduct Rules of the NASD as it applies to a
nonmember broker or dealer in a foreign country.
(f) Relationship among Underwriters and Selected Dealers. You may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and,
with your consent, the
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Underwriters (if any) and the Selected Dealers may purchase Securities from and
sell Securities to each other at the public offering price less all or any part
of the concession. We are not authorized to act as agent for you or any
Underwriter or the issuer or other seller of any Securities in offering
Securities to the public or otherwise. Nothing contained herein or in any
Written Communication from you shall constitute the Selected Dealers partners
with you or any Underwriter or with one another. Neither you nor any Underwriter
shall be under any obligation to us except for obligations assumed hereby or in
any Written Communication from you in connection with any Offering. In
connection with any Offering, we agree to pay our proportionate share of any
claim, demand, or liability asserted against us, and the other Selected Dealers
or any of them, or against you or the Underwriters, if any, based on any claim
that such Selected Dealers or any of them constitute an association,
unincorporated business, or other separate entity, including in each case our
proportionate share of any expense incurred in defending against any such claim,
demand, or liability.
(g) Blue Sky Laws. Upon application to you, you will inform us as to the
jurisdictions in which you believe the Securities have been qualified for sale
or are exempt under the respective securities or "blue sky" laws of such
jurisdictions. We understand and agree that compliance with the securities or
"blue sky" laws in each jurisdiction in which we shall offer or sell any of the
Securities shall be our sole responsibility and that you assume no
responsibility or obligations as to the eligibility of the Securities for sale
or our right to sell the Securities in any jurisdiction.
(h) Compliance with Law. We agree that in selling Securities pursuant to
any Offering (which agreement shall also be for the benefit of the issuer or
other seller of such Securities), we will comply with the applicable provisions
of the Securities Act and the Exchange Act, the applicable Rules and regulations
of the Securities and Exchange Commission thereunder, the applicable Rules and
regulations of the NASD, and the applicable Rules and regulations of any
securities exchange having jurisdiction over the Offering. You shall have full
authority to take such action as you may deem advisable in respect of all
matters pertaining to any Offering. Neither you nor any Underwriter shall be
under any liability to us, except for lack of good faith and for obligations
expressly assumed by you in this Agreement; provided, however, that nothing in
this sentence shall be deemed to relieve you from any liability imposed by the
Securities Act.
(4) Termination Supplements and Amendments. This Agreement may be
terminated by either party hereto upon five business days' written notice to the
other party; provided that with respect to any Offering for which a Written
Communication was sent and accepted prior to such notice, this Agreement as it
applies to such Offering shall remain in full force and effect and shall
terminate with respect to such Offering in accordance with the last sentence of
this Section. This Agreement may be supplemented or amended by you by written
notice thereof to us, and any such supplement or amendment to this Agreement
shall be effective with respect to any Offering to which this Agreement applies
after the date of such supplement or amendment. Each reference to "this
Agreement" herein shall, as appropriate, be to this Agreement as so amended and
supplemented. The terms and conditions set forth in Sections 3(b) and (d) with
regard to any Offering will terminate at the close of business on the thirtieth
day after the date of the initial
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public offering of the Securities to which such Offering relates, but such terms
and conditions, upon notice to us, may be terminated by you at any time.
(5) Successors and Assigns. This Agreement shall be binding on, and inure
to the benefit of, the parties hereto and other persons specified or indicated
in Section 1, and the respective successors and assigns of each of them.
(6) Governing Law. This Agreement and the terms and conditions set forth
herein with respect to any Offering together with such supplementary terms and
conditions with respect to such Offering as may be contained in any Written
Communication from you to us in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of New York.
By signing this Agreement we confirm that our subscription to, or our
acceptance of any reservation of any Securities pursuant to an Offering shall
constitute (i) acceptance of and agreement to the terms and conditions of this
Agreement (as supplemented and amended pursuant to Section 4) together with and
subject to any supplementary terms and conditions contained in any Written
Communication from you in connection with such Offering, all of which shall
constitute a binding agreement between us and you, individually, or as
representative of any Underwriters, (ii) in confirmation that our
representations and warranties set forth in Section 3 are true and correct at
that time and (iii) confirmation that our agreements set forth in Sections 2 and
3 have been and will be fully performed by us to the extent and at the times
required thereby.
Very truly yours,
_____________________________________________
(Name of Firm)
_____________________________________________
(Authorized Signature)
_____________________________________________
(Title)
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Confirmed, as of the date first above written:
XXXXXXX X. XXXXX & CO.
By:___________________________________________
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
Execution Date:_____________________
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EXHIBIT C
The opinion of special counsel to the Company to be delivered pursuant to
Section 5(b)(i) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida with requisite corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement and is registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended. Each of the
Company's subsidiaries is duly organized, validly existing and in good standing
under the laws of its respective jurisdiction of incorporation, with requisite
corporate power and authority to own, lease and operate its respective
properties and conduct its business as described in the Registration Statement,
except where the failure to be in good standing would not have a material
adverse effect on the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its subsidiaries,
considered as one enterprise. The Bank is a Florida-chartered commercial bank
duly organized, validly existing and in good standing under the laws of the
State of Florida. The Trust is validly existing in good standing as a business
trust under the Delaware Business Trust Act, 12 Del. C. ss.3801 et seq.
2. The Company and each subsidiary are duly qualified to transact business as
foreign corporations under the corporation laws of each jurisdiction in which
the Company or such subsidiary, as the case may be, owns or leases property of a
nature, has an office, or transacts business of a type, that would make such
qualification necessary, except where the failure to so qualify would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
3. The deposit accounts of the Bank are insured by either the Savings
Association Insurance Fund or the Bank Insurance Fund of the FDIC up to the
maximum amount allowable by law and, to such counsel's knowledge, no proceedings
for the termination or revocation of such membership or insurance are pending or
threatened.
4. All of the issued and outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued and are
fully paid and nonassessable and, to such counsel's knowledge, are owned by the
Company or the Bank, as the case may be, free and clear of any security
interests, liens, pledges, claims or other encumbrances, except where the
failure to own such shares free and clear of any security interests, liens,
pledges, claims or other encumbrances would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise and except that the Trust Preferred Securities are not owned by the
Company or the Bank.
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5. The authorized and outstanding capital stock of the Company is as set forth
in the Prospectus under the heading "Description of Capital Stock." The issued
and outstanding shares of capital stock of the Company immediately prior to the
issuance and sale of the Common Securities to be sold by the Company under the
Underwriting Agreement have been duly authorized and validly issued, are fully
paid and non-assessable, and there are no preemptive, preferential or, except as
described in the Prospectus and to our knowledge after investigation, other
rights to subscribe for or purchase any shares of capital stock of the Company
and, to our knowledge after investigation, no shares of capital stock of the
Company have been issued in violation of such rights.
6. The Company has full corporate power and authority to execute, deliver and
perform the Underwriting Agreement and to issue, sell and deliver the Common
Securities to be sold by it to the Underwriters as provided therein; the
Underwriting Agreement has been duly authorized, executed and delivered by the
Company and constitutes a legal valid, and binding obligation of each of the
Company and is enforceable against the Company in accordance with its terms,
except as enforceability of the Underwriting Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by equitable principles limiting the right to
specific performance or other equitable relief and except as the obligations of
the Company under the indemnification and contribution provisions of Section 6
of the Underwriting Agreement may be limited by laws or unenforceable as against
public policy, as to which no opinion is expressed, and an implied covenant of
good faith and fair dealing.
7. The certificates for the Common Securities to be delivered under the
Underwriting Agreement are in due and proper form and conform to the
requirements of applicable law; and when duly countersigned by the Company's
transfer agent and delivered to the Underwriters or upon the order of the
Underwriters against payment of the agreed consideration therefor in accordance
with the provisions of the Underwriting Agreement, the Common Securities to be
sold by the Company represented thereby will be duly authorized and validly
issued, fully paid and non-assessable, and free of preemptive, preferential or
other rights to subscribe for or purchase shares of Common Securities and, upon
delivery to the Underwriter or upon the order against payment of the agreed
consideration therefor in accordance with the provisions of the Underwriting
Agreement, the Underwriter will acquire good and marketable title thereto, free
and clear of any lien, claim, security interest, encumbrance, or restriction on
transfer.
8. The Company is not an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in Investment Company Act of
1940, as amended.
9. The description in the Registration Statement and the Prospectus of statutes,
laws, regulations, legal and governmental proceedings, and contracts and other
legal documents described therein insofar as they purport to describe the
provisions of the laws referred to therein, fairly summarize the legal matters
described therein, and fairly and correctly present, in all material respects,
the information to be included therein by the 1933 Act.
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10. The Registration Statement was declared effective under the Securities Act
as of the date and time specified in such order, any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b) and, to such
counsel's knowledge and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act and no
proceedings therefor have been initiated or threatened by the Commission.
11. The Registration Statement (including the Rule 430A Information, if
applicable) and the Prospectus and any amendment or supplement thereto (except
for the financial statements and other financial and statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion),
as of their respective effective or issue dates, comply or complied as to form
in all material respects to the applicable requirements of the 1933 Act and the
1933 Act Regulations.
12. The documents incorporated by reference in the Prospectus (except for the
financial statements and other financial or statistical data included therein or
omitted therefrom, as to which such counsel expresses no opinion, and except to
the extent that any statement therein is modified or superseded in the
Prospectus), as of the dates they were filed with the Commission, complied as to
form in all material respects to the applicable requirements of the 1934 Act and
the 1934 Act Regulations.
13. Such counsel knows of no legal or governmental proceedings pending to which
the Company or any subsidiary is a party or of which any property of the Company
or any subsidiary is the subject that are required to be disclosed in the
Registration Statement or that would affect the consummation of the transactions
contemplated in the Underwriting Agreement, or the Common Securities, and such
counsel knows of no such proceedings that are threatened or contemplated by
governmental authorities or threatened by others.
14. Such counsel knows of no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described in the Registration
Statement or to be filed as exhibits thereto other than those described therein
or filed or incorporated by reference as exhibits thereto, and such instruments
as are summarized in the Registration Statement are fairly summarized in all
material respect
15. No approval, authorization, consent, registration, qualification or other
order of any public board or body is required in connection with the execution
and delivery of the Underwriting Agreement or the issuance and sale of the
Common Securities or the consummation by the Company of the other transactions
contemplated by the Underwriting Agreement, except such as have been obtained
under the Securities Act and the Exchange Act or such as may be required under
the blue sky or securities laws of various states in connection with the
offering and sale of the Common Securities.
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16. To such counsel's knowledge, the Company and each of its subsidiaries,
including the Bank, each has all material licenses, permits and other
governmental authorizations currently required for the conduct of its business
as presently conducted.
17. The execution and delivery of the Underwriting Agreement, the issue and sale
of the Common Securities, the compliance by the Company with the provisions of
the Common Securities and the Underwriting Agreement and the consummation of the
transactions therein contemplated will not conflict with or constitute a breach
of, or default under, the articles of incorporation or by-laws of the Company or
any subsidiary or a breach or default under any contract, indenture, mortgage,
loan agreement, note, lease or other instrument known to such counsel to which
either the Company or any subsidiary is a party or by which any of them or any
of their respective properties may be bound except for such breaches as would
not have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise, nor will such action result in a
violation on the part of the Company or any subsidiary of any applicable law or
regulation or of any administrative, regulatory or court decree known to such
counsel.
18. The Common Securities are registered under the Exchange Act.
19. The Company has full corporate power and authority to enter into the Branch
Agreements and to effect the transactions contemplated by the Branch Agreements,
and the Branch Agreements have been duly authorized, executed and delivered by
the Company and constitute valid, legal and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and by
equitable principles limiting the right to specific performance or other
equitable relief; the execution, delivery and performance of the Branch
Agreements and the consummation of the transactions therein contemplated will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule or reputation, any agreement or
instrument known to such counsel to which the Company or any subsidiary is a
party or by which it is bound or to which any of their respective property is
subject, the Company's or any subsidiary's charter or bylaws, or any statute,
order or decree known to such counsel of any court or governmental agency or
body having jurisdiction over the Company, any subsidiary, or any of their
respective properties; and no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for the
execution, delivery and performance of the Branch Agreements or for the
consummation of the transactions contemplated thereby, except such as may be
required under the 1933 Act or state securities laws or regulatory approvals
contemplated by the Branch Agreements.
20. The Company has full corporate power and authority to enter into the Bank
Acquisition Agreement and to effect the transactions contemplated by the Bank
Acquisition Agreement, and the Bank Acquisition Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid, legal
and binding obligation of the Company enforceable against
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the Company in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by equitable principles limiting
the right to specific performance or other equitable relief; the execution,
delivery and performance of the Bank Acquisition Agreement and the consummation
of the transactions therein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any statute, rule or reputation, any agreement or instrument known to such
counsel to which the Company or any subsidiary is a party or by which it is
bound or to which any of their respective property is subject, the Company's or
any subsidiary's charter or bylaws, or any statute, order or decree known to
such counsel of any court or governmental agency or body having jurisdiction
over the Company, any subsidiary, or any of their respective properties; and no
consent, approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the execution, delivery and
performance of the Bank Acquisition Agreement or for the consummation of the
transactions contemplated thereby, except such as may be required under the 1933
Act or state securities laws or regulatory approvals contemplated by the Bank
Acquisition Agreement.
21. Counsel will supplementally provide a written statement that such counsel
has participated in the preparation of the Registration Statement and Prospectus
and has reviewed the documents incorporated by reference in the Prospectus and
no facts have come to the attention of such counsel to lead it to believe (a)
that the Registration Statement (including the Rule 430A Information if
applicable) or any amendment thereto (except for the financial statements and
other financial or statistical data included therein or omitted therefrom, as to
which such counsel need express no opinion), at the time the Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (b) that the
Prospectus or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom as to which such counsel need express no opinion), at the time the
Prospectus was issued, or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (c) that the documents
incorporated by reference in the Prospectus (except for the financial statements
and other financial or statistical data contained therein or omitted therefrom
as to which such counsel expresses no opinion, and except to the extent that any
statement therein is modified or superceded in the Prospectus or any
subsequently filed document which is incorporated by reference into the
Prospectus), as of the dates they were filed with the Commission, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
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