EXHIBIT 1.1
Form of Underwriting Agreement
$25,000,000*
PFBI CAPITAL TRUST
PREMIER FINANCIAL BANCORP, INC.
% Preferred Securities
(Liquidation Amount $25 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
June , 1997
ADVEST, INC.
As Representative of the Several
Underwriters
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
PFBI Capital Trust (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the
State of Delaware (Chapter 38, Title 12, of the Delaware Business Code,
12 Del. C. Section 3801 et seq.), and Premier Financial Bancorp, Inc.,
a Kentucky corporation (the "Company"), as depositor of the Trust and
as guarantor, hereby confirms its agreement with you and the several
underwriters, on whose behalf you have been duly authorized to act as
their representative (the "Representative"), as follows:
SECTION 1. Introduction. The Company agrees, upon the terms and
conditions set forth in this Underwriting Agreement (this "Agreement"),
to issue and sell to the several underwriters identified in Schedule A
annexed hereto (the "Underwriters"), who are acting severally and not
jointly, an aggregate liquidation amount of $25,000,000 (the "Firm
Securities") of the Trust's % preferred securities (the "Preferred
Securities"). The Trust and the Company also propose to issue and sell
to the Underwriters, at the Underwriters' option, up to an additional
$3,750,000 aggregate
----------------------
* Plus an option to acquire up to an additional $3,750,000 aggregate
liquidation amount of Preferred Securities from the Trust to cover
over-allotments.
Liquidation Amount of Preferred Securities (the "Option Securities") as
set forth herein. The term "Preferred Securities" as used herein,
unless indicated otherwise, shall mean the Firm Securities and the
Option Securities.
The Preferred Securities and the Common Securities (as defined
herein) are to be issued pursuant to the terms of an Amended and
Restated Trust Agreement dated as of June , 1997 (the "Trust
Agreement"), among the Company, as depositor, and, together with the
Trust, the "Offerors," and Bankers Trust Company ("Trust Company"), a
New York banking corporation, as property trustee ("Property Trustee")
and Bankers Trust (Delaware) ("Trust Delaware"), a Delaware banking
corporation, as Delaware trustee ("Delaware Trustee") and the holders
from time to time of undivided interests in the assets of the Trust.
The Preferred Securities will be guaranteed by the Company on a
subordinated basis and subject to certain limitations with respect to
distributions and payments upon liquidation, redemption or otherwise
(the "Guarantee") pursuant to the Guarantee Agreement dated as of June
, 1997 (the "Guarantee Agreement"), between the Company and the Trust
Company, as Trustee (the "Guarantee Trustee"). The assets of the Trust
will consist of % junior subordinated deferrable interest debentures,
due , 2027 (the "Subordinated Debentures") of the Company which will be
issued under a Junior Subordinated Indenture dated as of June , 1997
(the "Indenture"), between the Company and the Trust Company, as
Trustee (the "Indenture Trustee"). Under certain circumstances, the
Subordinated Debentures will be distributable to the holders of
undivided beneficial interests in the assets of the Trust. The entire
proceeds from the sale of the Preferred Securities will be combined
with the entire proceeds from the sale by the Trust to the Company of
the Trust's common securities (the "Common Securities"), and will be
used by the Trust to purchase an equivalent amount of the Subordinated
Debentures.
The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1
(Nos. 333- and 333- -01) and a related preliminary prospectus for the
registration of the Preferred Securities, the Guarantee and the
Subordinated Debentures under the Securities Act of 1933, as amended
(the "Securities Act"), and the rules and regulations thereunder (the
"Securities Act Regulations"). The Offerors have prepared and filed
such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and
will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. The registration statement
has been declared effective under the Securities Act by the Commission.
The registration statement as amended at the time it became effective
(including the prospectus and all information deemed to be a part
- 2 -
of the registration statement at the time it became effective pursuant
to Rule 430A(b) of the Securities Act Regulations) is hereinafter
called the "Registration Statement," except that, if the Company files
a post-effective amendment to such registration statement which becomes
effective prior to the Closing Date (as defined below), "Registration
Statement" shall refer to such registration statement as so amended.
Each prospectus included in the registration statement, or amendments
thereof, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the consent of
the Underwriters pursuant to Rule 424(a) of the Securities Act
Regulations (including the documents incorporated by reference therein)
is hereinafter called the "Preliminary Prospectus." The term
"Prospectus" means the final prospectus (including the documents
incorporated by reference therein, if any), as first filed with the
Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Securities Act Regulations. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
SECTION 2. Representations and Warranties. Each of the
Offerors represents and warrants to, and agrees with, each of the
Underwriters as follows:
(a) The Company is duly incorporated and validly existing
as a corporation in good standing under the laws of the Commonwealth of
Kentucky with full power and authority (corporate and other) to own,
lease, and operate its properties and conduct its business as described
in the Prospectus (as defined in Section 2(e) of this Agreement); the
Company is duly registered under the Bank Holding Company Act of 1956,
as amended; the Company has no subsidiaries except those described in
the Registration Statement (each a "Subsidiary"); the Company owns,
directly or indirectly, beneficially and of record all of the
outstanding capital stock of each Subsidiary free and clear of any
claim, lien, encumbrance or security interest, except as described in
the Prospectus. The Company and each of its Subsidiaries is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which any of them own or lease
properties, has an office, or in which the business conducted by any of
them make such qualification necessary, except where the failure to so
qualify would not have a material adverse effect on the condition
(financial or otherwise), business, prospects, assets, properties,
results of operations, or net worth of the Company and its Subsidiaries
taken as a whole ("Material Adverse Effect"); and no proceeding has
been instituted in any jurisdiction revoking, limiting or curtailing,
or seeking to revoke, limit or curtail, such power and authority or
qualification.
- 3 -
(b) The Preferred Securities have been duly and validly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when executed and authenticated in accordance with the
terms of the Trust Agreement and delivered to the Underwriters against
payment of the consideration set forth herein, will constitute valid
and legally binding obligations of the Trust enforceable in accordance
with their terms and entitled to the benefits provided by the Trust
Agreement (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or
affecting creditors' rights generally or general equity principles
(whether considered in a proceeding in equity or at law)). The Trust
Agreement has been duly authorized and, when executed by the proper
officers of the Trust and delivered by the Trust, will have been duly
executed and delivered by the Trust and will constitute the valid and
legally binding instrument of the Trust, enforceable in accordance with
its terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or
affecting creditors' rights generally or general equity principles
(whether considered in a proceeding in equity or at law)). The
Subordinated Debentures have been duly and validly authorized for
delivery by the Company and, when duly authenticated in accordance with
the terms of the Indenture and delivered to the Trust against payment
of the consideration set forth herein, will constitute valid and
legally binding obligations of the Company enforceable against the
Company in accordance with their terms (except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
receivership, readjustment of debt, moratorium, fraudulent conveyance
or similar laws relating to or affecting creditors' rights generally or
general equity principles (whether considered in a proceeding in equity
or at law)) and entitled to the benefits provided by the Indenture. The
Indenture has been duly authorized and, when executed by the proper
officers of the Company and delivered by the Company, will have been
duly executed and delivered by the Company and will constitute the
valid and legally binding instrument of the Company, enforceable in
accordance with its terms, (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
receivership, readjustment of debt, moratorium, fraudulent conveyance
or similar laws relating to or affecting creditors' rights generally or
general equity principles (whether considered in a proceeding in equity
or at law)). The Trust Agreement, the Guarantee Agreement, and the
Indenture have been duly qualified under the Trust Indenture Act; and
the Preferred Securities, the Common Securities, the Trust Agreement,
the Guarantee Agreement, the Subordinated Debentures and the Indenture
conform in all
- 4 -
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(c) Neither the Trust nor the Company or any Subsidiary,
is, or with the giving of notice or lapse of time or both will be, in
violation or breach of, or in default under, nor will the execution or
delivery of, or the performance and consummation of the transactions
contemplated by this Agreement (including the offer, sale, or delivery
of the Preferred Securities), conflict with, or result in a violation
or breach of, or constitute a default under, any provision of the
organization documents of the Trust or the Articles of Incorporation,
Bylaws (as amended or restated) of the Company, or other governing
documents of the Trust, the Company or any Subsidiary, or of any
provision of any agreement, contract, mortgage, deed of trust, lease,
loan agreement, indenture, note, bond, or other evidence of
indebtedness, or other material agreement or instrument to which the
Trust, the Company or any Subsidiary is a party or by which any of them
is bound or to which any of their properties is subject, nor will the
performance by the Offerors of their obligations hereunder violate any
rule, regulation, order, or decree, applicable to the Trust, the
Company or any Subsidiary of any court or any regulatory body,
administrative agency, or other governmental body having jurisdiction
over the Trust, the Company or any Subsidiary or any of their
respective properties, or any order of any court or governmental agency
or authority entered in any proceeding to which the Trust, the Company
or any Subsidiary was or is now a party or by which it is bound, except
those, if any, described in the Prospectus or which are not material to
the Company and the Trust taken as a whole. No consent, approval,
filing, authorization, registration, qualification, or order, including
with or by any bank regulatory agency, is required for the execution,
delivery, and performance of this Agreement or the consummation of the
transactions contemplated by this Agreement, other than such that have
been obtained or made, except for compliance with the Securities Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the Blue Sky Laws applicable to the public offering of the
Preferred Securities by the Underwriters, the clearance of such
offering and the underwriting arrangements evidenced hereby with the
National Association of Securities Dealers, Inc. ("NASD"), and the
listing of the Preferred Securities on the Nasdaq Stock Market. This
Agreement has been duly authorized, executed and delivered by the
Company and the Trust and constitutes a valid and binding obligation of
the Company and the Trust and is enforceable against the Company and
the Trust in accordance with its terms.
(d) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus complies in all material respects
- 5 -
with the requirements of the Securities Act and the Securities Act
Regulations. As of the effective date of the Registration Statement,
and at all times subsequent thereto up to the Closing Date or any
Option Closing Date (as defined below), the Registration Statement and
the Prospectus, and any amendments or supplements thereto, contained or
will contain all material statements that are required to be stated
therein in accordance with the Securities Act and the Securities Act
Regulations and conformed or will conform in all material respects to
the requirements of the Securities Act and the Securities Act
Regulations, and neither the Registration Statement nor the Prospectus,
nor any amendment or supplement thereto included or will include any
untrue statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement, the Prospectus or any
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company and the Trust by or on behalf of
the Underwriters.
(e) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, PSC which has audited, reviewed, and
expressed its opinion with respect to certain of the financial
statements and schedules filed with the Commission as a part of the
Registration Statement and included or to be included, as the case may
be, in the Prospectus and in the Registration Statement, and whose
report is included in the Prospectus and the Registration Statement are
independent accountants as required by the Securities Act and the
Securities Act Regulations.
(f) The financial statements and schedules and the related
notes thereto included or to be included, as the case may be, in the
Registration Statement, the Preliminary Prospectus, and the Prospectus
present fairly the financial position of the entities purported to be
shown thereby as of the respective dates of such financial statements
and schedules, and the results of operations and changes in equity and
in cash flows of the entities purported to be shown thereby for the
respective periods covered thereby, all in conformity with generally
accepted accounting principles consistently applied throughout the
periods involved, except as may be disclosed in the Prospectus. All
adjustments necessary for a fair presentation of the results of such
periods have been made. The Company had an outstanding capitalization
as set forth under "Capitalization" in the Prospectus as of the date
indicated therein and there has been no material change therein since
such date except as disclosed in the Prospectus. The financial,
operating, and statistical information set forth in the Prospectus
under captions "Summary," "Selected Consolidated Financial Data," "Use
of Proceeds," "Capitalization," "Management's Discussion and Analysis
of Financial Condition and
- 6 -
Results of Operations," "Business of the Company" and "Management" are
fairly presented and prepared on a basis consistent with the audited
financial statements of the Company.
(g) There is no litigation or governmental proceeding,
action, or investigation pending or, to the knowledge of the Trust or
the Company, threatened, to which the Trust, the Company or any
Subsidiary is or may be a party or to which property owned or leased by
the Company or any Subsidiary is or may be subject, or related to
environmental or discrimination matters, which is required to be
disclosed in the Registration Statement or the Prospectus by the
Securities Act or the Securities Act Regulations and is not so
disclosed, or which questions the validity of this Agreement or any
action taken or to be taken pursuant hereto.
(h) Either the Company or a Subsidiary, as the case may be,
has good and marketable title in fee simple to all items of real
property and good and marketable title to all the personal properties
and assets reflected as owned by the Company or a Subsidiary in the
Prospectus (or elsewhere in the Registration Statement), in each case
clear of all liens, mortgages, pledges, charges, or encumbrances of any
kind or nature except those, if any, reflected in the financial
statements described above (or elsewhere in the Registration Statement)
or which are not material to the Company and its Subsidiaries taken as
a whole; all properties held or used by the Company or a Subsidiary
under leases, licenses, franchises or other agreements are held by them
under valid, existing, binding, and enforceable leases, franchises,
licenses, or other agreements with respect to which it is not in
default.
(i) Neither the Trust nor the Company or 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, stabilization or manipulation, under the
Exchange Act or otherwise, of the price of the Preferred Securities.
(j) Except as reflected in or contemplated by the
Registration Statement, since the respective dates as of which
information is given in the Registration Statement and prior to the
Closing Date and Option Closing Date (as such terms are hereinafter
defined):
(i) neither the Company nor any Subsidiary has or will
have incurred any material liabilities or obligations, direct or
contingent, or entered into any material transaction not in the
ordinary course of business without the prior consent of the
Representative;
- 7 -
(ii) neither the Company nor any Subsidiary has or will
have paid or declared any dividend or other distribution with respect
to its capital stock and neither the Company nor any Subsidiary has or
will be delinquent in the payment of principal or interest on any
outstanding debt obligations; and
(iii) there has not been and will not be any change in
the capital stock or any material change in the indebtedness of the
Company or any Subsidiary (except as may result from the closing of the
transactions contemplated by this Agreement), or any adverse change in
the condition (financial or otherwise), or any development involving a
prospective adverse change in their respective businesses (resulting
from litigation or otherwise), prospects, properties, condition
(financial or otherwise), net worth, or results of operations which is
material to the Company and its Subsidiaries taken as a whole.
(k) There is no contract or other document, transaction, or
relationship required to be described in the Registration Statement, or
to be filed as an exhibit to the Registration Statement, by the
Securities Act or by the Securities Act Regulations that has not been
described or filed as required.
(l) All documents delivered or to be delivered by the
Offerors or any of their representatives in connection with the
issuance and sale of the Preferred Securities were on the dates on
which they were delivered, or will be on the dates on which they are to
be delivered, true, complete, and correct in all material respects.
(m) The Company and each Subsidiary have filed all
necessary federal and all state and foreign income and franchise tax
returns and paid all taxes shown as due thereon; and no tax deficiency
has been asserted or threatened against the Company or any Subsidiary
that would have a Material Adverse Effect, except as described in the
Prospectus.
(n) Neither the Trust nor the Company or any Subsidiary
has, directly or indirectly, at any time:
(i) made any unlawful contribution to any candidate for
political office, or failed to disclose any contribution in violation
of law; or
(ii) made any payment to any federal, state, local, or
foreign government officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or
permitted by the laws of the United States or any jurisdiction thereof
or applicable foreign jurisdictions.
- 8 -
(o) The Company or a Subsidiary owns or possesses adequate
rights to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, servicemark registrations,
copyrights, and licenses necessary for the conduct of the business of
the Company and the Subsidiaries or ownership of their respective
properties, and neither the Company nor any Subsidiary has received
notice of conflict with the asserted rights of others in respect
thereof which has not been resolved.
(p) The Company and each Subsidiary have in place and
effective such policies of insurance, with limits of liability in such
amounts, as are normal and prudent in the ordinary scope of business
similar to that of the Company and such Subsidiary in the respective
jurisdiction in which they conduct business.
(q) The Company and each Subsidiary have and hold, and at
the Closing Date or Option Closing Date will have and hold, and are
operating in compliance with, and have fulfilled and performed all of
their material obligations with respect to, all permits, certificates,
franchises, grants, easements, consents, licenses, approvals, charters,
registrations, authorizations, and orders (collectively, "Permits")
required under all laws, rules, and regulations in connection with
their respective businesses, and all of such Permits are in full force
and effect; and there is no pending proceeding, and neither the Company
nor any Subsidiary has received notice of any threatened proceeding,
relating to the revocation or modification of any such Permits. Neither
the Company nor any Subsidiary is (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.
(r) The provisions of any employee pension benefit plan
("Pension Plan") as defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), in which the Company
or any Subsidiary is a participating employer are in substantial
compliance with ERISA, and neither the Company nor any Subsidiary is in
violation of ERISA. The Company, each Subsidiary, or the plan sponsor
thereof, as the case may be, has
- 9 -
duly and timely filed the reports required to be filed by ERISA in
connection with the maintenance of any Pension Plans in which the
Company or any Subsidiary is a participating employer, and no facts,
including any "reportable event" as defined by ERISA and the
regulations thereunder, exist in connection with any Pension Plan in
which the Company or any Subsidiary is a participating employer which
might constitute grounds for the termination of such plan by the
Pension Benefit Guaranty Corporation or for the appointment by the
appropriate U.S. District Court of a trustee to administer any such
plan. The provisions of any employee benefit welfare plan, as defined
in Section 3(1) of ERISA, in which the Company or any Subsidiary is a
participating employer, are in substantial compliance with ERISA, and
the Company, any Subsidiary, or the plan sponsor thereof, as the case
may be, has duly and timely filed the reports required to be filed by
ERISA in connection with the maintenance of any such plans.
(s) Neither the Company nor the Trust is an open-end
investment company, unit investment trust or face-amount certificate
company that is, or is required to be, registered under Section 8 of
the Investment Company Act of 1940, as amended, or subject to
regulation under such Act.
(t) The deposits of Georgetown Bank & Trust Company, Bank
of Germantown, Citizens Deposit Bank & Trust, Citizens Bank and Farmers
Deposit Bank are each insured by the Federal Deposit Insurance
Corporation ("FDIC") up to the legal limits.
(u) Neither this Agreement nor any certificate, statement
or other document delivered or to be delivered by the Offerors or any
Subsidiary contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
Any certificate signed by any director or officer of the Company
or the Trust, as the case may be, and delivered to the Representative
or to counsel for the Underwriters shall be deemed a representation and
warranty of the Company or the Trust, as the case may be, to the
Underwriters as to the matters covered thereby.
Any certificate delivered by the Company or the Trust, as the
case may be, to their respective counsel for purposes of enabling such
counsel to render an opinion pursuant to Section 8 will also be
furnished to the Representative and counsel for the Underwriters and
shall be deemed to be additional representations and warranties to the
Underwriters by the Company and the Trust as to the matters covered
thereby.
- 10 -
SECTION 3. Purchase Sale and Delivery to Underwriters, Closing.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust and the
Company, as the case may be, agree that the Trust will issue and sell
to the Underwriters, and each of the Underwriters agrees, severally and
not jointly to purchase from the Trust, the number of Firm Securities
set forth opposite the name of such Underwriter in Schedule A at a
purchase price of $25 per Firm Security.
Payment of the purchase price for, and delivery of, the Firm
Securities shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 555 Twelfth
Street, N.W., Washington, D.C., or at such other place as shall be
agreed upon by the Representative, the Trust and the Company, at 9:00
A.M. Eastern Standard Time, on the fourth business day (unless
postponed in accordance with the provisions of Section 14) following
the date of this Agreement, or such other time not later than ten (10)
business days after such date as shall be agreed upon by the
Representative, the Trust and the Company (such time and date of
payment and delivery being herein called the "Closing Date").
As compensation (the "Underwriting Commission") for the
commitments of the Underwriters contained in this Section 3, the
Company hereby agrees to pay to the Underwriters an amount equal to
4.0% of the public offering price of the Preferred Securities. Such
payment will be made on the Closing Date or on the Option Closing Date
(as defined below) with respect to the Option Securities.
Payment for the Firm Securities shall be made to the Trust by
wire transfer of immediately available funds, against delivery to the
Underwriter of the Firm Securities to be purchased by it. The Firm
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
Representative may request in writing at least two business days before
the Closing Date. The Global Securities representing the Firm
Securities shall be made available for examination by the
Representative and counsel to the Underwriters not later than 9:30 A.M.
Eastern Standard Time on the last business day prior to the Closing
Date.
In addition, on the basis of the representations, warranties,
and agreements contained herein, but subject to the terms and
conditions set forth herein, the Trust hereby grants to the
Underwriters an option to purchase, severally and not jointly, from the
Trust the Option Securities in the same proportion as the number of
Preferred Securities set forth opposite their names on
- 11 -
Schedule A bears to the total number of Firm Securities, at the same
purchase price per Preferred Security to be paid for the Firm
Securities, for use solely in covering any over-allotments made by the
Underwriters in the sale and distribution of the Firm Securities. The
option granted hereunder may be exercised at any time (but not more
than once) within thirty (30) days after the date of this Agreement,
upon notice by the Representative to the Trust which sets forth the
aggregate liquidation amount of Option Securities as to which the
Underwriters are exercising the option, and the time and place at which
the certificate representing the Option Securities will be delivered.
Such time of delivery may not be earlier than the Closing Date and
herein is called the "Option Closing Date." The Option Closing Date
shall be determined by the Representative, but if at any time other
than the Closing Date, shall not be earlier than three nor later than
five full business days after delivery of such notice to exercise.
Certificates for the Option Securities will be made available for
inspection at least 24 hours prior to the Option Closing Date at the
offices of the DTC, or its designated custodian, or at such other
location as specified by the Representative. The manner of payment for
a delivery of the Option Securities shall be the same as for the Firm
Securities as specified in this Section 3.
SECTION 4. Representations and Warranties of the Underwriters.
The Representative, on behalf of the Underwriters, represents and
warrants to the Company that the information set forth on the inside
front cover page of the Prospectus relating to stabilization and in the
third and eighth paragraphs of the section in the Prospectus entitled
"Underwriting" was the only written information furnished to the
Company by and on behalf of any Underwriter expressly for use in
connection with the preparation of the Registration Statement, and is
correct and complete in all material respects and does not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
SECTION 5. Offering by the Underwriters. The Trust and the
Company are advised by the Representative that the Underwriters propose
to make a public offering of the Preferred Securities, on the terms 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. Because the NASD is expected to view the
Preferred Securities as interests in a direct participation program,
the offering of the Preferred Securities is being made in compliance
with the applicable provisions of Rule 2810 of the NASD's Conduct
Rules.
- 12 -
SECTION 6. Agreements of the Offerors. Each of the
Offerors covenants and agrees with the Underwriter that:
(a) If any information shall have been omitted from the
Registration Statement in reliance upon Rule 430A, the Company, at the
earliest possible time, will furnish the Representative with a copy of
the Prospectus to be filed by the Offerors with the Commission to
comply with Rule 424(b) and Rule 430A under the Securities Act, and,
will file such Prospectus with the Commission in compliance with such
Rules. Upon compliance with such Rules, the Company will so advise the
Representative promptly. The Company will advise the Representative and
counsel to the Underwriters promptly of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of the institution of any proceedings for that purpose, or
of any notification received by the Company of the suspension of
qualification of the Preferred Securities for sale in any jurisdiction
or the initiation or threatening of any proceedings for that purpose,
or of any notification received by the Company of the suspension of
qualification of the Preferred Securities for sale in any jurisdiction
or the initiation or threatening of any proceedings for that purpose.
The Company also will advise the Representative and counsel to the
Underwriters promptly of any request of the Commission for amendment or
supplement of the Registration Statement, of any Preliminary
Prospectus, or of the Prospectus, or for additional information, and
the Offerors will not file any amendment or supplement to the
Registration Statement (either before or after it becomes effective),
to any Preliminary Prospectus, or to the Prospectus (including a
prospectus filed pursuant to Rule 424(b)) if the Representative has not
been furnished with a copy prior to such filing or if the
Representative reasonably objects to such filing.
(b) For the period during which a Prospectus relating to
the Preferred Securities is required to be delivered under the
Securities Act, the Offerors shall comply with all requirements imposed
on them by the Securities Act, as now and hereafter amended, and by the
Securities Act Regulations, as from time to time in force, so far as is
necessary to permit the continuance of sales or dealings in the
Preferred Securities as contemplated by the provisions hereof and the
Prospectus. If any event occurs as a result of which the Prospectus,
including any subsequent amendment or supplement, would include an
untrue statement of a material fact, or would omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it becomes necessary at any time to
amend the Prospectus, including any amendment or supplement thereto, to
comply with the Securities Act, the Company promptly will advise the
Representative and counsel to the Underwriters thereof and the
- 13 -
Offerors will promptly prepare and file with the Commission an
amendment or supplement that will correct such statement or omission or
an amendment that will effect such compliance; and, if any Underwriter
is required to deliver a prospectus nine (9) months or more after the
effective date of the Registration Statement, the Company, upon request
of the Representative but at the expense of such Underwriter, will
prepare promptly such prospectus or prospectuses as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the
Securities Act.
(c) The Offerors will not, prior to the Option Closing Date
or thirty (30) days after the date of this Agreement, whichever occurs
first, without the prior consent of the Representative, incur any
material liability or obligation, direct or contingent, or enter into
any material transaction, other than in the ordinary course of
business, or any transaction with a related party which is required to
be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K
under the Securities Act, except as contemplated by the Prospectus.
(d) The Company will make generally available to its
security holders and the Representative an earnings statement of the
Company as soon as practicable, but in no event later than fifteen (15)
months after the end of the Company's current fiscal quarter, covering
a period of twelve (12) consecutive calendar months beginning after the
effective date of the Registration Statement, but beginning not later
than four (4) months after such effective date, which will satisfy the
provisions of the last subsection of Section 11(a) of the Securities
Act and Rule 158 promulgated thereunder.
(e) During such period as a prospectus is required by law
to be delivered in connection with sales by an underwriter or dealer,
the Company will furnish to the Representative, at the expense of the
Company, copies of the Registration Statement, the Prospectus, any
Preliminary Prospectus, and all amendments and supplements to any such
documents in each case as soon as available and in such quantities as
the Representative may reasonably request, for the purposes
contemplated by the Securities Act.
(f) The Offerors will use their best efforts to take or
cause to be taken in cooperation with the Representative and counsel to
the Underwriters all actions required in qualifying or registering the
Preferred Securities for sale under the Blue Sky Laws of such
jurisdictions as the Representative may reasonably designate, provided
the Offerors shall not be required to qualify generally as foreign
corporations or as a dealer in securities or to consent generally to
the service of process under the law of
- 14 -
any such state (except with respect to the offering and sale of the
Preferred Securities), and will continue such qualifications or
registrations in effect so long as reasonably requested by the
Representative to effect the distribution of the Preferred Securities
(including, without limitation, compliance with all undertakings given
pursuant to such qualifications or registrations). In each jurisdiction
where any of the Preferred Securities shall have been qualified as
provided above, the Offerors will file such reports and statements as
may be required to continue such qualification for a period of not less
than one (1) year from the date of this Agreement.
(g) The Company will furnish to its security holders annual
reports containing financial statements audited by independent public
accountants. During the period ending three (3) years after the date of
this Agreement, (i) as soon as practicable after the end of the fiscal
year, the Company will furnish to the Representative two copies of the
annual report of the Company containing the audited consolidated
balance sheet of the Company as of the close of such fiscal year and
corresponding audited consolidated statements of earnings,
stockholders' equity and cash flows for the year then ended, and (ii)
the Company will file promptly and will furnish to the Representative
at or before the filing thereof copies of all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13, 14, or 15 of the
Exchange Act. During such three-year period the Company also will
furnish to the Representative one copy of the following:
(i) as soon as practicable after the filing thereof,
each other report, statement, or other document filed by the Company
with the Commission;
(ii) as soon as practicable after the filing thereof,
all reports, statements, other documents and financial statements
furnished by the Company to Nasdaq pursuant to requirements of or
agreements with Nasdaq; and
(iii) as soon as available, each report, statement, or
other document of the Company mailed to its stockholders.
(h) The Offerors will use their best efforts to satisfy or
cause to be satisfied the conditions to the obligations of the
Underwriters in Section 8 hereof.
(i) The Offerors shall deliver the requisite notice of
issuance to the NASD and shall take all necessary or appropriate action
within its power to maintain the authorization for trading of the
Preferred Securities on the Nasdaq Stock Market
- 15 -
for a period of at least thirty-six (36) months after the date of
this Agreement.
(j) The Trust shall comply in all respects with the
undertakings given by the Trust in connection with the qualification or
registration of the Preferred Securities for offering and sale under
the Blue Sky Laws.
(k) The Trust shall apply the proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the sale
by the Trust to the Company of the Trust's Common Securities, to
purchase an equivalent amount of Subordinated Debentures. All the
proceeds to be received by the Company from the sale of the
Subordinated Debentures will be used in the manner and for the purposes
specified under the heading "Use of Proceeds" in the Prospectus. The
Offerors shall file, and will furnish or cause to be furnished to the
Underwriter and counsel to the Underwriters copies of all reports as
may be required in accordance with Rule 463 under the Securities Act.
(l) Except for the sale of Preferred Securities pursuant to
this Agreement, neither the Company nor any Subsidiary shall, directly
or indirectly, offer, sell, contract to sell, issue, distribute, grant
any option, right, or warrant to purchase or otherwise dispose of any
shares of the Preferred Securities or substantially similar securities,
in the open market or otherwise, for a period of one hundred eighty
(180) days after the later of the effective date of the Registration
Statement or the date of this Agreement, without the express prior
written consent of the Representative.
SECTION 7. Payment of Expenses and Fees
(a) Whether or not the transactions contemplated hereunder
are consummated, or if this Agreement is terminated for any reason, the
Company will pay or cause to be paid the costs, fees, and expenses
incurred in connection with the offering of the Preferred Securities as
follows:
(i) All costs, fees, and expenses incurred in
connection with the performance of the Company and the Trust's
obligations hereunder, including all fees and expenses of the Company
and the Trust's accountants and counsel, all costs and expenses
incurred in connection with the preparation, printing, filing, and
distribution (including delivery and shipping costs) of the
Registration Statement, each Preliminary Prospectus, and the Prospectus
(including all amendments and exhibits thereto and the financial
statements therein), and agreements and supplements provided for
herein, this Agreement and other underwriting
- 16 -
documents, including various Underwriters' letters, and the Preliminary
and Supplemental Blue Sky Memoranda.
(ii) All filing and registration fees and expenses,
including the legal fees and disbursements of counsel, incurred in
connection with qualifying or registering all or any part of the
Preferred Securities, the Guarantee and the Subordinated Debentures for
offer and sale under the Blue Sky Laws.
(iii) All fees and expenses of the Offerors' registrar
and transfer agent; all transfer taxes, if any, and all other fees and
expenses incurred in connection with the sale and delivery of the
Preferred Securities to the Underwriters.
(iv) The filing fees of the NASD and applicable fees
charged by Nasdaq for inclusion of the Preferred Securities for
quotation on the National Market System, and
(v) All other costs and expenses incident to the
performance of the Company's and the Trust's obligations hereunder
which are not otherwise provided for in this Section 7(a).
(b) On the consummation of the offering of the
Preferred Securities, the Company shall pay Advest, Inc. $25,000
as a financial advisory fee.
SECTION 8. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters under this Agreement shall be
subject to the accuracy of the representations and warranties on the
part of the Company and the Trust set forth herein as of the Closing
Date, and if applicable, as of the Option Closing Date, as the case may
be, to the accuracy of the statements of the Offerors' directors and
officers, to the performance by the Company and the Trust of their
obligations hereunder, and to the following additional conditions,
except to the extent expressly waived in writing by the Representative:
(a) The Registration Statement and all post-effective
amendments thereto shall have been declared effective by the Commission
no later than 5:30 p.m. eastern time, on the date of this Agreement, or
such later time as shall have been consented to by the Representative,
but in any event not later than 5:30 p.m., eastern time, on the third
full business day following the date hereof; if the Offerors omitted
information from the Registration Statement at the time it became
effective in reliance on Rule 430A under the Securities Act, the
Prospectus shall have been filed with the Commission in compliance with
Rule 424(b) and Rule 430A under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement or any
amendment or
- 17 -
supplement thereto shall have been issued; no proceeding for the
issuance of such an order shall have been initiated or shall be pending
or, to the knowledge of the Offerors or the Representative, threatened
or contemplated by the Commission; and any request of the Commission
for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been disclosed to
the Representative and complied with to the Representative's
satisfaction.
(b) The Preferred Securities, the Guarantee and the
Subordinated Debentures shall have been qualified or registered for
sale, or subject to an available exemption from such qualification or
registration, under the Blue Sky Laws of such jurisdictions as shall
have been reasonably specified by the Representative and the offering
contemplated by this Agreement shall have been cleared by the NASD.
(c) Since the dates as of which information is given
in the Registration Statement:
(i) There shall not have been any material adverse
change, or any development involving a prospective material adverse
change, in the ability of the Company or any Subsidiary to conduct
their respective business (whether by reason of any court, legislative,
other governmental action, order, decree, or otherwise), or in the
general affairs, condition (financial and otherwise) business,
prospects, properties, management, financial position or earnings,
results of operations, or net worth of the Company or any Subsidiary,
whether or not arising from transactions in the ordinary course of
business; and
(ii) Neither the Company nor any Subsidiary shall have
sustained any loss or interference from any labor dispute, strike,
fire, flood, windstorm, accident, or other calamity (whether or not
insured) or from any court or governmental action, order, or decree.
The effect of which on the Company or any Subsidiary, in any such case
described in clause (c)(i) or (ii) above, is in the reasonable opinion
of the Representative so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Preferred Securities on the terms and in the manner
contemplated in the Registration Statement and the Prospectus.
(d) There shall have been furnished to the Representative
on the Closing Date, except as otherwise expressly provided below:
- 18 -
(i) An opinion of ▇▇▇▇▇▇▇, Spidi, Sloane & ▇▇▇▇▇, P.C.,
counsel to the Company, dated as of the Closing Date and any Option
Closing Date, in form and substance substantially in the form attached
hereto as Exhibit A.
(ii) The favorable opinion, dated the Closing Date, of
White & Case, counsel to the Trust Company and Trust Delaware,
substantially in the form attached hereto as Exhibit B.
(iii) The favorable opinion, dated the Closing Date, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Company and
the Trust, substantially to the effect and in the form attached hereto
as Exhibit C.
(iv) The favorable opinion, dated the Closing Date, of
▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Underwriters as to such matters as the
Representative shall reasonably request.
In rendering such opinions specified in clause (d)(ii),
(iii) or (iv) above, counsel may rely upon an opinion or opinions, each
dated the Closing Date, of other counsel retained by them or the
Company as to laws of any jurisdiction other than the United States or
the State of New York, provided that (A) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representative, and (B) counsel shall state
in their opinion that they believe that they and the Underwriters are
justified in relying thereon. Insofar as such opinions involve factual
matters, such counsel may rely, to the extent such counsel deems
proper, upon certificates of officers of the Company, its subsidiaries
and the Trust and certificates of public officials.
(e) At the time this Agreement is executed and also on the
Closing Date and the Option Closing Date, as the case may be, there
shall be delivered to the Representative a letter addressed to the
Representative from ▇▇▇▇▇ & ▇▇▇▇▇▇▇, PSC, the Company's independent
accountants, the first letter to be dated the date of this Agreement,
the second letter to be dated the Closing Date, and the third letter to
be dated the Option Closing Date, if any, which shall be in form and
substance reasonably satisfactory to the Representative and shall
contain information as of a date within five days of the date of such
letter. There shall not have been any change set forth in any letter
referred to in this subsection (e) that makes it impracticable or
inadvisable in the judgment of the Representative to proceed with the
public offering or purchase of the Preferred Securities as contemplated
hereby.
(f) On the Closing Date, a certificate signed by the
Chairman of the Board, the President, a Vice Chairman of the Board
- 19 -
or any Executive or Senior Vice President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement and this Agreement and that:
(i) The representations and warranties of the Offerors
in this Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the Closing
Date and the Offerors have complied in all material respects with all
the agreements and satisfied in all material respects all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date; and
(ii) The Commission has not issued an order preventing
or suspending the use of the Prospectus or any Preliminary Prospectus
or any amendment thereto; no stop order suspending the effectiveness of
the Registration Statement has been issued; and, to the knowledge of
the respective signatories, no proceeding for that purpose has been
instituted or is pending or contemplated under the Securities Act;
(iii) Each of the respective signatories of the
certificate has carefully examined the Registration Statement, the
Prospectus, and any amendments or supplements thereto, and such
documents contain all material statements and information required to
be made therein, and neither the Registration Statement nor any
amendment or supplement thereto includes any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and,
since the date on which the Registration Statement was initially filed,
no event has occurred that was required to be set forth in an amended
or supplemented prospectus or in an amendment to the Registration
Statement that has not been so set forth; provided, however, that no
representation need be made as to information contained in or omitted
from the Registration Statement or any amendment or supplement in
reliance upon and in conformity with written information furnished to
the Company and the Trust by or on behalf of any Underwriter through
the Representative; and
(iv) Since the date on which the Registration Statement
was initially filed with the Commission, there has not been any
material adverse change or a development involving a prospective
material adverse change in the business, properties, financial
condition, or earnings of the Company and its Subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as disclosed in the Registration Statement as
heretofore amended or (but only if the Representative expressly
consents thereto in
- 20 -
writing) as disclosed in an amendment or supplement thereto filed with
the Commission and delivered to the Representative after the execution
of this Agreement; since such date and except as so disclosed or in the
ordinary course of business, neither the Company nor any Subsidiary has
incurred any liability or obligation, direct or indirect, or entered
into any transaction that is material to the Company or such
Subsidiary, as the case may be, not contemplated in the Prospectus;
since such date and except as so disclosed there has not been any
change in the outstanding capital stock of the Company, or any change
that is material to the Company and its Subsidiaries taken as a whole
in the short-term debt or long-term debt of the Company or any
Subsidiary; since such date and except as so disclosed, neither the
Company nor any of its Subsidiaries have incurred any material
contingent obligations, and no material litigation is pending or, to
their knowledge threatened against the Company or any Subsidiary; and,
since such date and except as so disclosed, neither the Company nor any
of its Subsidiaries have sustained any material loss or interference
from any strike, fire, flood, windstorm, accident or other calamity
(whether or not insured) or from any court or governmental action,
order, or decree.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request in
connection with the offering of the Preferred Securities.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice from the Representative to the
Company at any time without liability on the part of any Underwriters,
including the Representative, or the Company, except for expenses to be
paid by the Company pursuant to Section 7 hereof or reimbursed by the
Company pursuant to Section 9 and except to the extent provided in
Section 11.
SECTION 9. Reimbursement of Underwriters' Expenses. If the sale
of the Preferred Securities to the Underwriters on the Closing Date is
not consummated because the offering is terminated or indefinitely
suspended by the Company or by the Representative for any reason
permitted by this Agreement, other than the Underwriter's inability to
legally act as Underwriter, the Company will reimburse the Underwriter
for the Underwriter's reasonable out-of-pocket expenses, including fees
and disbursements of its counsel, that shall have been incurred by the
Underwriter in connection with the proposed purchase and sale of the
Preferred Securities in an aggregate amount not to exceed $75,000,
provided, however, that, if the offering is terminated by the Company
due to legislation which adversely affects the federal income tax
- 21 -
advantages to the Company of the Securities, the Company's
reimbursement to the Underwriter pursuant to this Section 9 shall be
limited to $50,000 in the aggregate. Any such termination or suspension
shall be without liability of any party to the other except that the
provisions of this Section 9, and Sections 7 and 11 shall remain
effective and shall apply.
SECTION 10. Maintain Effectiveness of Registration Statement.
The Representative and the Company will use their respective best
efforts to prevent the issuance of any stop order or other such order
suspending the effectiveness of the Registration Statement and, if such
stop order is issued, to obtain the lifting thereof as soon as
possible.
SECTION 11. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Securities Act or the Exchange Act, against
any losses, claims, damages, expenses, liabilities, or actions in
respect thereof ("Claims"), joint or several to which such Underwriter
or each such controlling person may become subject under the Securities
Act, the Exchange Act, the Securities Act Regulations, Blue Sky Laws or
other federal or state statutory laws or regulations, at common law or
otherwise (including payments made in settlement of any litigation, if
such settlement is effected with the written consent of the Company,
which consent shall not be unreasonably withheld), insofar as such
Claims arise out of or are based upon the inaccuracy or breach of any
representation, warranty, or covenant of the Company or the Trust
contained in this Agreement, any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or in any application filed under any Blue Sky Law
or other document executed by the Offerors for that purpose or based
upon written information furnished by the Offerors and filed in any
state or other jurisdiction to qualify or register any or all of the
Preferred Securities under the securities laws thereof (any such
document, application, or information being hereinafter called a "Blue
Sky Application"), or arise out of or are based upon the omission or
alleged omission to state in any of the foregoing a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Company agrees to reimburse each
Underwriter and each such controlling person promptly for any legal
fees or other expenses incurred by such Underwriter or any such
controlling person in connection with investigating or defending any
such Claim or appearing as a third-party witness in connection with any
such Claim; provided,
- 22 -
however, that the Company will not be liable in any such case to the
extent that:
(i) Any such Claim arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto or
in any Blue Sky Application in reliance upon and in conformity with the
written information furnished by or on behalf of the Underwriters to
the Offerors expressly for use therein pursuant to Section 4 of this
Agreement; or
(ii) Such statement or omission was contained or made
in any Preliminary Prospectus and corrected in the Prospectus and (1)
any such Claim suffered or incurred by any Underwriter (or any person
who controls such Underwriter) resulted from an action, claim, or suit
by any person who purchased Preferred Securities that are the subject
thereof from such Underwriter in the offering of the Preferred
Securities, and (2) such Underwriter failed to deliver a copy of the
Prospectus (as then amended if the Offerors shall have amended the
Prospectus) to such person at or prior to the confirmation of the sale
of such Preferred Securities in any case where such delivery is
required by the Securities Act, unless such failure was due to failure
by the Company to provide copies of the Prospectus (as so amended) to
the Underwriter as required by this Agreement.
(b) Each Underwriter severally, but not jointly, agrees to
indemnify and hold harmless the Offerors, each of their directors, each
of their officers who sign the Registration Statement, and each person
who controls the Company or the Trust within the meaning of the
Securities Act, against any Claim to which the Offerors, or any such
director, officer, or controlling person may become subject under the
Securities Act, the Exchange Act, the Securities Act Regulations, Blue
Sky Laws, or other federal or state statutory laws or regulations, at
common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of such
Underwriter and the Representative, which consent shall not be
unreasonably withheld), insofar as such Claim arises out of or is based
upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or any amendment or supplement thereto, or in any Blue
Sky Application, or arises out of or is based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement, any Preliminary Prospectus, the
- 23 -
Prospectus, or any amendment or supplement thereto, or in any Blue Sky
Application, in reliance upon and in conformity with the written
information furnished by or on behalf of such Underwriter to the
Offerors pursuant to Section 4 of this Agreement. Each Underwriter will
severally reimburse any legal fees or other expenses reasonably
incurred by the Offerors, or any such director, officer, or controlling
person in connection with investigating or defending any such Claim,
and from any and all Claims resulting from failure of such Underwriter
to deliver a copy of the Prospectus, if the person asserting such Claim
purchased Preferred Securities from such Underwriter and a copy of the
Prospectus (as then amended if the Offerors shall have amended the
Prospectus) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Preferred
Securities to such person, and if the Prospectus (as so amended) would
have cured the defect giving rise to such Claim (unless such failure
was due to a failure by the Company and the Trust to provide sufficient
copies of the Prospectuses (as so amended) to each Underwriter).
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) of this Section 11 of notice of the commencement
of any action in respect of a Claim, such indemnified party will, if a
Claim in respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof. In case any such action is brought against any
indemnified party, and such indemnified party notifies an indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate in and, to the extent that it may wish, jointly
with all other indemnifying parties, similarly notified, assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such
action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there
may be legal defenses available to the indemnified party and/or other
indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties.
(d) Upon receipt of notice from the indemnifying party to
such indemnified party of the indemnifying party's election to assume
the defense of such action and upon approval by the indemnified party
of counsel selected by the indemnifying party, the indemnifying party
will not be liable to such indemnified party under subsection (a) or
(b) of this Section 11
- 24 -
for any legal fees or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless:
(i) the indemnified party shall have employed separate
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the last sentence of subsection (c) of
this Section 11 (it being understood, however, that the indemnified
party shall not be liable for the legal fees and expenses of more than
one separate counsel (plus local counsel), approved by the
Representative if one or more of the Underwriters or their controlling
persons are the indemnified parties); or
(ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after the indemnified
party's notice to the indemnifying party of commencement of the action;
(e) If the indemnification provided for in this Section 11
is unavailable to an indemnified party or insufficient to hold harmless
an indemnified party under subsection (a) or (b) of this Section 11 in
respect of any Claim referred to therein, then each indemnifying party,
in lieu of indemnifying such indemnified party, shall, subject, to the
limitations hereinafter set forth, contribute to the amount paid or
payable by such indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand from the offering of the Preferred
Securities; or
(ii) if the allocation provided by clause (e)(i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (e)(i) above, but also the relative fault of the Offerors on the
one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such Claim, as well as any
other relevant equitable considerations.
The respective relative benefits received by the Offerors on the
one hand and the Underwriters on the other hand shall be deemed to be
in such proportion that the Underwriters are responsible for that
portion of a Claim represented by the percentage that the amount of the
Underwriting Commission bears to the public offering price of the
Preferred Securities, and the Company (including the Company's
directors, officers, and controlling persons) is responsible for the
remaining portion of such Claim.
- 25 -
The relative fault of the Offerors on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Offerors on the one hand or
the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent
such untrue statement or omission. The amount paid or payable by a
party as a result of the Claims referred to above shall be deemed to
include, subject to the limitations set forth in subsections (c) and
(d) of this Section 11, any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending
any action or claim.
(f) The Offerors and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 11
were determined by pro rata or per capita allocation or by any other
method or allocation that does not take into account the equitable
considerations referred to in subsection (e) of this Section 11.
Notwithstanding the other provisions of this Section 11, no underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Preferred Securities underwritten by
it and distributed to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligation to contribute pursuant to this Section 11 are several in
proportion to their respective underwriting commitments and not joint.
(g) The obligations of the Company, the Trust and the
Underwriters under this Section 11 shall be in addition to any
liability that the Company, the Trust or the Underwriters may otherwise
have.
SECTION 12. Default of Underwriters. It shall be a
condition to this Agreement and to the obligations of the Trust to sell and
deliver the Preferred Securities hereunder, and to the obligations of each
Underwriter to purchase the Preferred Securities in the manner described herein,
that, except as hereinafter provided in this Section 12, each of the
Underwriters (except a defaulting Underwriter) shall purchase and pay for all
the Preferred Securities agreed to be purchased by such Underwriter hereunder
upon tender to the Representative of all such Preferred Securities in accordance
with the terms hereof. If
- 26 -
any Underwriter or Underwriters default in its or their obligations to
purchase Preferred Securities hereunder on either the Closing Date or
the Option Closing Date and the aggregate number of Preferred
Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed ten percent (10%) of the liquidation
amount of Preferred Securities the Underwriters are obligated to
purchase on such Closing Date, the Representative may make arrangements
for the purchase of such Preferred Securities by other persons,
including any of the Underwriters, but if no such arrangements are made
by such Closing Date or Option Closing Date the nondefaulting
Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Preferred Securities
such defaulting Underwriters agreed but failed to purchase on such
Closing Date or Option Closing Date. If any Underwriter or Underwriters
so default and the liquidation amount of Preferred Securities with
respect to which such default or defaults occur is greater than the
above percentage and arrangements satisfactory to the Representative
for the purchase of such Preferred Securities by other person are not
made within thirty-six (36) hours after such default, this Agreement
will terminate without liability on the part of any nondefaulting
Underwriter or the Company, except to the extent provided in Section
11.
If Preferred Securities to which a default relates are to be
purchased by the nondefaulting Underwriters or by another party or
parties, the Representative or the Company shall have the right to
postpone the Closing Date or Option Closing Date, as the case may be,
for not more than seven (7) business days in order that the necessary
changes, if any, in the Registration Statement, Prospectus, and any
other documents, as well as any other arrangements, may be effected. As
used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 12. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
SECTION 13. Effective Date. This Agreement shall become
effective immediately on the date hereof.
SECTION 14. Termination. Without limiting the right to terminate
this Agreement pursuant to any other provision hereof, this Agreement
may be terminated by the Representative prior to the Closing Date and
the option from the Company and the Trust referred to in Section 3, if
exercised, may be canceled by the Representative at any time prior to
the Option Closing Date, if:
(a) The Offerors shall have failed, refused, or been
unable, at or prior to the Closing Date or Option Closing Date, as the
case may be to perform any agreement on its part to be performed
hereunder.
- 27 -
(b) Any other condition to the obligations of the
Underwriters hereunder is not fulfilled; or
(c) In the Representative's reasonable judgment, payment
for and delivery of the Preferred Securities is rendered impracticable
or inadvisable because:
(i) Additional governmental restrictions, not in force
and effect on the date hereof, shall have been imposed upon trading in
securities generally or minimum or maximum prices shall have been
generally established on any national securities exchange or
over-the-counter market, or trading in securities generally shall have
suspended on any national securities exchange or on the Nasdaq Stock
Market, or a general banking moratorium shall have been established by
federal or state authorities;
(ii) Any event shall have occurred or shall exist that
makes untrue or incorrect in any material respect any statement or
information contained in the Registration Statement or that is not
reflected in the Registration Statement but should be reflected therein
to make the statements or information contained therein not misleading
in any material respect; or
(iii) Any outbreak or escalation of major hostilities
or other national or international calamity or any substantial change
in political, financial or economic conditions shall have occurred or
shall have accelerated to such extent, in the Representative's
reasonable judgment, as to have a material adverse effect on the
general securities market or make it impracticable or inadvisable to
proceed with completion of the sale and payment for the Preferred
Securities as provided in this Agreement.
Any termination pursuant to this Section 14 shall be without
liability on the part of any Underwriter to the Company or on the part
of the Company to any Underwriter (except for expenses to be paid by
the Company pursuant to Section 7 or reimbursed by the Company pursuant
to Section 9 and except as to indemnification and contribution to the
extent provided in Section 11).
SECTION 15. Representations and Indemnities to Survive Delivery.
The respective indemnity and contribution agreements of the Company and
the Underwriters, and the representations, warranties, covenants, other
statements of the Offerors and of their directors and officers set
forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter, the Offerors, or any of its or their partners, officers,
directors, or any controlling person, as the case may be, and will
survive
- 28 -
delivery of and payment for the Preferred Securities sold hereunder.
The respective indemnity and contribution of the Company and the
Underwriters, the provisions of Section 7(a) and Section 9 of this
Agreement, and the representations and warranties of the Offerors will
survive the termination or cancellation of this Agreement.
SECTION 16. Notices. All communications hereunder shall be
in writing and, if sent to the Representative, will be mailed,
delivered, or telecopied (with receipt confirmed) to Advest, Inc., at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇) with a
copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇; and if sent to the
Company or the Trust will be mailed, delivered, or telecopied (with
receipt confirmed) to Premier Financial Bancorp, Inc., ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇,
President and Chief Executive Officer (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇) with a
copy to ▇▇▇▇ ▇. Spidi, ▇▇▇▇▇▇▇, Spidi, Sloane & ▇▇▇▇▇, P.C., One
Franklin Square, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇).
SECTION 17. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors or assigns, and to the benefit of the directors and officers
(and their personal representatives) and controlling persons referred
to in Section 11, and no other person shall acquire or have any right
or obligation hereunder. The terms "successors or assigns," as used in
this Agreement, shall not include any purchaser of the Preferred
Securities from any Underwriter merely by reason of such purchase.
SECTION 18. Partial Unenforceability. If any section,
subsection, clause, or provision of this Agreement is for any reason
determined to be invalid or unenforceable, such determination shall not
affect the validity or enforceability of any other section, subsection,
clause, or provision hereof.
SECTION 19. Applicable Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of
New York.
SECTION 20. Entire Agreement. This Agreement embodies the entire
agreement among the parties hereto with respect to the transactions
contemplated herein, and there have been and are no agreements among
the parties with respect to such transactions other than as set forth
or provided for herein.
- 29 -
SECTION 21. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same
instrument.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed counterparts
hereof, whereupon it will become a binding agreement among the Company,
the Trust and the Underwriters, including the Representative, in
accordance with its terms.
Very truly yours,
PREMIER FINANCIAL BANCORP, INC.
By:
Title:
PFBI CAPITAL TRUST
By: PREMIER FINANCIAL BANCORP, INC.
as Depositor
By:
Title:
ADVEST, INC.
As representative of the several Underwriters
listed in Schedule A.
By:
Title:
- 30 -
PFBI CAPITAL TRUST
PREMIER FINANCIAL BANCORP, INC.
SCHEDULE A
Liquidation Amount of
Firm Securities to be
Name of Underwriter Purchased
Advest, Inc................................ $
Aggregate Liquidation Amount............... $25,000,000
EXHIBIT A
The opinion of special counsel to the Company to be delivered
pursuant to Section 8(d)(i) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Company is a corporation existing and in good standing
under the laws of the Commonwealth of Kentucky, with requisite
corporate power and authority to own its properties and conduct
its business as described in the Registration Statement, except
for such power and authority the absence of which would not have a
material adverse effect on the Company, and is registered as bank
holding company under the Bank Holding Company Act of 1956, as
amended.
2. The Company and each Subsidiary have been duly incorporated or
organized and are validly existing as corporations or banking
associations in good standing under the laws of the jurisdiction
of organization, with full corporate power and authority to own,
lease, and operate their respective properties and conduct their
respective businesses as described in the Registration Statement;
the Company and each Subsidiary are qualified to do 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 properties, has an office, or in which
business is conducted and such qualification is required, except
where the failure to so qualify would not have a material adverse
effect.
3. The Company and the Trust each has full corporate power and
authority to execute, deliver, and perform the Underwriting
Agreement and to issue, sell, and deliver the Preferred Securities
to be sold by it to the Underwriters as provided herein; the
Underwriting Agreement has been duly authorized, executed and
delivered by the Company and the Trust, and constitutes a legal,
valid, and binding obligation of each of the Company and the Trust
and is enforceable against each of the Company and the Trust in
accordance with its terms, except as enforceability of this
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 11 of the 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.
4. The Trust Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership,
readjustment of debt, moratorium, fraudulent conveyance or similar
laws relating to or affecting creditors' rights generally, general
equity principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
5. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, readjustment
of debt, moratorium, fraudulent conveyance or similar laws
relating to or affecting creditors' rights generally, general
equity principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
6. The Indenture has been duly authorized, executed and delivered
by the Company, has been duly qualified under the Trust Indenture
Act, and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, readjustment
of debt, moratorium, fraudulent conveyance or similar laws
relating to or affecting creditors' rights generally, general
equity principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
7. The Subordinated Debentures have been duly authorized, executed
and delivered by the Company and when duly authenticated in
accordance with the Indenture and delivered and paid for in
accordance with the Junior Subordinated Debenture Purchase
Agreement dated as of June , 1997, by and between the Company and
the Trust, will be valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their
- 2 -
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, readjustment
of debt, moratorium, fraudulent conveyance or similar laws
relating to or affecting creditors' rights generally, general
equity principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
8. The Trust 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 statements set forth in the Registration Statement under
the captions "Supervision and Regulation," "Description of
Preferred Securities," "Description of Junior Subordinated
Debentures," "Description of Guarantee" and "Relationship Among
the Preferred Securities, the Junior Subordinated Debentures and
the Guarantee," insofar as they purport to describe the provisions
of the laws referred to therein, fairly summarize the legal
matters described therein.
10. The statements of law or legal conclusions and opinions set
forth in the Registration Statement under the caption "Certain
Federal Income Tax Consequences," subject to the assumptions and
conditions described therein, constitute such counsel's opinion.
11. The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion
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.
12. The Registration Statement and the Prospectus and any
amendment or supplement thereto made by the Company prior to the
Closing Date or any Option Closing Date (other than the financial
statements and financial and statistical data included therein, as
to which no opinion need be rendered), when it or they became
effective or were filed with the Commission, as the case may be,
and in each case at the Closing Date or any Option Closing Date,
complied as to form in all material respects with the requirements
of the Securities Act, the Trust Indenture Act and the applicable
rules and regulations under said acts, and such counsel has no
- 3 -
reason to believe that the Registration Statement, at the time it
became effective, contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements contained therein, not misleading, or that the
Prospectus, at the time it was filed with the Commission or at the
Closing Date or any Option Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not
misleading.
13. Such counsel knows of no material 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 which are required to be disclosed in the Registration
Statement or which would affect the consummation of the
transactions contemplated in this Agreement, the Indenture or the
Preferred Securities; and such counsel knows of no such
proceedings which 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 respects.
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 this
Agreement, the Trust Agreement, the Guarantee Agreement, and the
Indenture or the issuance and sale of the Preferred Securities or
the consummation by the Company of the other transactions
contemplated by this Agreement, the Trust Agreement, the Guarantee
Agreement, or the Indenture, except such as have been obtained
under the Securities Act, the Exchange Act and the Trust Indenture
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 Preferred Securities (as to which such counsel need express no
opinion).
- 4 -
16. The execution and delivery of this Agreement, the Trust
Agreement, the Guarantee Agreement, and the Indenture, the issue
and sale of the Preferred Securities and the Subordinated
Debentures, the compliance by the Company with the provisions of
the Preferred Securities, the Subordinated Debentures, the
Indenture and this Agreement and the consummation of the
transactions herein and 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 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 either 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
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.
- 5 -
EXHIBIT B
The opinion of counsel to the Trust Company and Trust Delaware to
be delivered pursuant to Section 8(d)(ii) of the Underwriting
Agreement shall be substantially to the effect that:
1. The Trust Company is duly incorporated and is validly existing
in good standing as a banking corporation with trust powers under
the laws of the State of New York.
2. The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture,
and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Guarantee
Agreement, and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of the
Guarantee Agreement.
4. The Property Trustee has the requisite power and authority to
execute and deliver the Trust Agreement, and has taken all
necessary corporate action to authorize the execution and delivery
of the Trust Agreement.
5. Each of the Indenture and the Guarantee Agreement has been duly
executed and delivered by the Indenture Trustee and the Guarantee
Trustee, respectively, and constitutes a legal, valid and binding
obligation of the Indenture Trustee and the Guarantee Trustee,
respectively, enforceable against the Indenture Trustee and the
Guarantee Trustee, respectively in accordance with its respective
terms, except that certain payment obligations may be enforceable
solely against the assets of the Trust and except that such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, fraudulent conveyance and
transfer or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and by the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
6. The Subordinated Debentures delivered on the date hereof have
been duly authenticated by the Indenture Trustee in accordance
with the terms of the Indenture.
- 2 -
EXHIBIT C
The opinion of counsel, as special Delaware counsel to the Company
and the Trust to be delivered pursuant to Section 8(d)(iii) of the
Underwriting Agreement shall be substantially to the effect that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust
Act, 12 Del. C. Section 3801 et seq. (the "Delaware Act"), and all
filings required under the laws of the State of Delaware with
respect to the creation and valid existence of the Trust as a
business trust have been made.
2. Under the Delaware Act and the Trust Agreement the Trust has
the trust power and authority to own its property and to its
conduct its business, all as described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation
of the Company and the Property Trustee and the Delaware Trustee,
and is enforceable against the Company and the Trustees, in
accordance with its terms.
4. Under the Delaware Act and the Trust Agreement, the Trust has
the trust power and authority to execute and deliver, and to
perform its obligations under, the Underwriting Agreement and to
issue and perform its obligations under the Preferred Securities
and the Common Securities.
5. Under the Delaware Act and the Trust Agreement, the execution
and delivery by the Trust of the Underwriting Agreement, and the
performance by the Trust of its obligations thereunder, have been
duly authorized by all necessary trust action on the part of the
Trust.
6. The Preferred Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust and are
entitled to the benefits of the Trust Agreement. The Holders, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Holders
may be obligated
pursuant to the Trust Agreement, (i) to provide indemnity and/or
security in connection with and pay taxes or governmental charges
arising from transfers or exchanges of Preferred Securities
Certificates and the issuance of replacement Preferred Securities
Certificates, and (ii) to provide security or indemnity in
connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
7. Under the Delaware Act and the Trust Agreement, the issuance of
the Preferred Securities and Common Securities is not subject to
preemptive rights.
8. The Common Securities have been duly authorized by the Trust
Agreement and are duly and validly issued undivided beneficial
interests in the assets of the Trust and are entitled to the
benefits of the Trust Agreement.
9. The issuance and sale by the Trust of the Preferred Securities
and Common Securities, the purchase by the Trust of the
Subordinated Debentures, the execution, delivery and performance
by the Trust of the Underwriting Agreement, the consummation by
the Trust of the transactions contemplated by the Underwriting
Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the
Certificate of Trust or the Trust Agreement or (ii) any applicable
Delaware law or administrative regulation.
10. Trust Delaware is duly incorporated and is validly existing in
good standing as a banking corporation with trust powers under the
laws of the State of Delaware.
11. The Delaware Trustee has the requisite power and authority to
execute and deliver the Trust Agreement, and has taken all
necessary corporate action to authorize the execution and delivery
of the Trust Agreement.
- 2 -
