Exhibit 1
1,100,000 Shares
▇▇▇▇▇▇▇ FINANCIAL CORPORATION
(a Delaware corporation)
Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
___________, 199_
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
ADVEST, INC.
As Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
▇▇▇▇▇▇▇ Financial Corporation, a Delaware corporation (the "Company"),
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and Advest, Inc. ("Advest") and each of the
other Underwriters named in Schedule A hereto (collectively, the "Underwriters",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Advest are acting as
representatives (in such capacity, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Advest shall hereinafter be
referred to as the "Representatives"), with respect to the sale by the Company
and the purchase by the Underwriters, acting severally and not jointly, of
1,100,000 shares of common stock, par value $.01 per share, of the Company (the
"Common Stock"), as set forth in said Schedule A, except as may otherwise be
provided in the Pricing Agreement, as hereinafter defined, and the grant by the
Company to the Underwriters, acting severally and not jointly, of
the option described in Section 2(b) hereof to purchase up to 165,000 additional
shares of Common Stock to cover over-allotments, if any, except as may otherwise
be provided in the Pricing Agreement. The aforesaid 1,100,000 shares of Common
Stock (the "Initial Securities") to be purchased by the Underwriters and all or
any part of the 165,000 additional shares of Common Stock which may be purchased
by the Underwriters pursuant to the option described in Section 2(b) hereof (the
"Option Securities") are hereinafter called, collectively, the "Securities".
Prior to the purchase and public offering of the Securities by the
several Underwriters, the Company and the Representatives, acting on behalf of
the several Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Securities
will be governed by this Agreement, as supplemented by the Pricing Agreement.
From and after the date of the execution and delivery of the Pricing Agreement,
this Agreement shall be deemed to incorporate the Pricing Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-63967) and a related
preliminary prospectus for the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and has filed such
amendments thereto, if any, and such amended preliminary prospectuses 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. Such
registration statement as amended at the time it becomes effective (including
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act and the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations")), is hereinafter referred to as the
"Registration Statement". Any registration statement filed by the Company
pursuant to Rule 462(b) of the 1933 Act Regulations is hereinafter referred to
as the "Rule 462(b) Registration Statement", and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The prospectus on file with the Commission at the time the Registration
Statement becomes effective (including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the ▇▇▇▇ ▇▇▇) is hereinafter
referred to as the "Prospectus", except that if any revised prospectus shall be
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provided to the Underwriters by the Company for use in connection with the
offering of the Securities which differs from the prospectus on file at the
Commission at the time the Registration Statement becomes effective (whether or
not such revised prospectus is required to be filed by the Company pursuant to
Rule 424(b) of the 1933 Act Regulations), the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first provided to the
Underwriters for such use.
The Company understands that the Underwriters propose to commence a
public offering of the Securities as soon as the Representatives deem advisable
after the Registration Statement becomes effective and the Pricing Agreement has
been executed and delivered.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as of the
date hereof and as of the date of the Pricing Agreement (such latter date being
hereinafter referred to as the "Representation Date") as follows:
(i) At the time the Registration Statement becomes effective,
the Registration Statement will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the Company
for use in connection with the offering of the Securities which differs
from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at the time it
is first provided to the Underwriters for such use), at Closing Time
referred to in Section 2 and at a Date of Delivery, if any, referred to
in Section 2, will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus.
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(ii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when
read together with the other information included or incorporated by
reference in the Prospectus, at the time the Registration Statement and
any amendments thereto become effective, at the Closing Time and at a
Date of Delivery, if any, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iii) The accountants who reported on the financial statements and
supporting schedules of the Company and its subsidiaries, and of
▇▇▇▇▇▇▇ Bancorp, Inc. and its subsidiary ("▇▇▇▇▇▇▇"), included or
incorporated by reference in the Registration Statement, are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) The historical financial statements of the Company and its
subsidiaries incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial position
of the Company and its subsidiaries as at the dates indicated and the
consolidated results of their operations and cash flows for the periods
specified; except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis.
(v) The historical financial statements of the Company and its
subsidiaries, as restated to include ▇▇▇▇▇▇▇ (the "restated
consolidated financial statements"), included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries as at the dates indicated
and the consolidated results of their operations and cash flows for the
periods specified; except as otherwise stated in the Registration
Statement, said restated consolidated financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis; the supporting schedules, if any,
included in the Registration Statement present fairly the information
required to be stated therein; and the selected historical financial,
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operating and statistical data set forth in the Prospectus under the
captions "Summary Consolidated Financial Data" and "Pro Forma Combined
Financial Information" fairly present the information set forth therein
and have been compiled on a basis consistent with that of the restated
consolidated financial statements included in the Prospectus.
(vi) The pro forma financial statements and the other pro forma
financial information of the Company and its subsidiaries and the
related notes thereto included and incorporated by reference in the
Registration Statement and the Prospectus present fairly in accordance
with generally accepted accounting principles the information shown
therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have
been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(vii) The financial statements of ▇▇▇▇▇▇▇ and its subsidiary
incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of
▇▇▇▇▇▇▇ and its subsidiary as at the dates indicated and the
consolidated results of their operations and cash flows for the periods
specified; except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis.
(viii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings or business
affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
(B) there have been no transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends on the Company's Common Stock, or dividends
declared, paid or made in accordance with the terms of any series of
the Company's preferred stock, par value $.01 per share, there has been
no dividend
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or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(ix) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus; the Company is duly registered as a savings and loan
holding company under the Home Owners' Loan Act of 1933, as amended
("HOLA"); and the Company is not required to qualify as a foreign
corporation in any jurisdiction in order to conduct its business except
in the State of Connecticut, where it is duly qualified and in good
standing.
(x) Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each such subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
(xi) The Purchase and Assumption Agreement, dated as of October 1,
1995 (the "Acquisition Agreement"), between ▇▇▇▇▇▇▇ Bank and Shawmut
Bank Connecticut, National Association has been duly authorized,
executed and delivered by ▇▇▇▇▇▇▇ Bank and constitutes the valid and
binding agreement of ▇▇▇▇▇▇▇ Bank, and, to the knowledge of the
Company, except for the consents, authorizations and appovals described
in the Registration Statement and the Prospectus, no consent,
authorization or approval of any governmental authority or other party
must be obtained for the consummation of the transactions contemplated
in the Acquisition Agreement. Nothing has come to the attention of the
Company which would cause it to believe that, had the transactions
contemplated by the Acquisition Agreement been
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consummated as of the date of this Agreement in accordance with the
terms of the Acquisition Agreement, the representations and warranties
contained in this Section 1 would not remain true and correct in all
material respects; provided, however, that the Company makes no
representation or warranty as to the ultimate action to be taken by
various governmental agencies and authorities in connection with
applications made thereto under applicable statutes and regulations.
(xii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to reservations or
agreements referred to in the Prospectus); the Securities have been
duly and validly authorized for issuance and sale as contemplated by
this Agreement and, when issued and delivered by the Company to the
Underwriters pursuant to this Agreement against payment of the
consideration set forth in the Pricing Agreement, will be validly
issued and fully paid and non-assessable; and the Common Stock conforms
to all statements relating thereto contained in the Prospectus and the
issuance of the Securities is not subject to preemptive or similar
rights.
(xiii) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
subsidiaries is subject; and the execution, delivery and performance of
this Agreement and the Pricing Agreement, and the consummation by the
Company of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it or any of them is a party or by which
either of the Company or its subsidiaries may be bound, or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary or any
applicable law, administrative regulation or administrative or court
decree.
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(xiv) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which is required to be disclosed
in the Registration Statement (other than as disclosed therein), or
which might result in any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries considered as one enterprise, or which
might materially and adversely affect the properties or assets of the
Company and its subsidiaries considered as one enterprise or which
might materially and adversely affect the consummation of this
Agreement or the Pricing Agreement; all pending legal or governmental
proceedings to which the Company or any subsidiary of the Company is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business of the
Company or any such subsidiary, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(xv) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, adequate trademarks, service marks and trade names
necessary to conduct the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any trademarks, service marks or trade names
which, singly or in the aggregate, would result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xvi) No authorization, approval, consent, order or decree of any
court or governmental authority or agency is required in connection
with the issuance or sale of the Securities or the consummation of any
other transaction contemplated by this Agreement or the Pricing
Agreement, except such as may be required under the 1933 Act or the
1933 Act Regulations, HOLA (each of which qualification or approval has
been obtained) or state securities laws.
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(xvii) The Company and its subsidiaries own or possess or have
obtained all licenses, certificates, consents, orders, approvals,
authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business
now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such license, certificate, consent,
order, approval, authority or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise,
or the earnings or business affairs of the Company and its subsidiaries
considered as one enterprise.
(xviii) No labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the knowledge of the Company, is
imminent which might be expected to result in any material adverse
change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and its subsidiaries considered as one
enterprise.
(xix) This Agreement has been duly executed and delivered by the
Company.
(xx) The Company and its subsidiaries have good and marketable
title to all of their respective properties, in each case free and
clear of all liens, encumbrances and defects, except as stated in the
Prospectus or such as do not materially affect the value of such
properties in the aggregate to the Company and its subsidiaries
considered as one enterprise.
(xxi) No holder of securities of the Company has rights to the
registration of securities of the Company because of the filing of the
Registration Statement.
(xxii) The Company is in compliance with all provisions of Section
517.075 of the Florida statutes, and all rules and regulations
promulgated thereunder relating to issuers doing business in Cuba.
(b) Any certificate signed by any officer of the Company and delivered
to the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
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SECTION 2. Sale and Delivery to the Underwriters; Closing.
(a) On the basis of the representations, warranties and covenants
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, acting severally and not jointly, agrees to purchase from the
Company, at the price per share set forth in the Pricing Agreement, the total
number of Initial Securities set forth in Schedule A opposite the name of such
Underwriter (except as otherwise provided in the Pricing Agreement), plus any
additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(i) If the Company has elected not to rely upon Rule 430A of the
1933 Act Regulations, the initial public offering price and the
purchase price per share to be paid by the several Underwriters for the
Securities have each been determined and set forth in the Pricing
Agreement, dated the date hereof, and an amendment to the Registration
Statement and the Prospectus will be filed before the Registration
Statement becomes effective.
(ii) If the Company has elected to rely upon Rule 430A of the 1933
Act Regulations, the purchase price per share to be paid by the several
Underwriters for the Securities shall be an amount equal to the initial
public offering price, less an amount per share to be determined by
agreement between the Representatives and the Company. The initial
public offering price per share of the Securities shall be a fixed
price to be determined by agreement between the Representatives and the
Company. The initial public offering price and the purchase price, when
so determined, shall be set forth in the Pricing Agreement. In the
event that such prices have not been agreed upon and the Pricing
Agreement has not been executed and delivered by the Company and the
Representatives by the close of business on the fourteenth business day
following the date of this Agreement, this Agreement shall terminate
forthwith, without liability of any party to any other party, unless
otherwise agreed to by the Company and the Representatives.
(b) In addition, on the basis of the representations, warranties and
covenants herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to the Underwriters, severally and
not jointly, to purchase up to an additional 165,000 shares of Common Stock at
the price per share set forth in the Pricing Agreement. The option hereby
granted will expire 30 days after (i) the date the
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Registration Statement becomes effective, if the Company has elected not to rely
on Rule 430A under the 1933 Act Regulations, or (ii) the Representation Date, if
the Company has elected to rely upon Rule 430A under the 1933 Act Regulations,
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Securities upon notice by the Representatives to
the Company setting forth the number of Option Securities as to which the
several Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and date of
delivery (a "Date of Delivery") shall be determined by the Representatives, but
shall not be later than seven full business days and not earlier than two full
business days after the exercise of said option, nor in any event prior to
Closing Time, as hereinafter defined, unless otherwise agreed by the
Representatives and the Company. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that portion of the total number of Option Securities
then being purchased which the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter bears to the total number of
Initial Securities, subject to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of certificates
for, the Initial Securities shall be made at the office of ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be
agreed upon by the Representatives and the Company, at 10:00 A.M. on the third
(fourth, if the pricing occurs after 4:30 P.M. on any given day) business day
(unless postponed in accordance with the provisions of Section 10) following the
date the Registration Statement becomes effective (or, if the Company has
elected to rely upon Rule 430A of the 1933 Act Regulations, the third (fourth,
if the pricing occurs after 4:30 P.M. on any given day) business day after
execution of the Pricing Agreement), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Company (such time and date of payment and delivery being herein called
"Closing Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the
above-mentioned office of ▇▇▇▇▇ & Wood, or at such other place as shall be
agreed upon by the Representatives and the Company, on each Date of Delivery as
specified in the notice from the Representatives to the Company. Payment shall
be made to the Company by certified or official bank check or checks drawn in
[Federal funds or similar same-day
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funds] payable to the order of the Company against delivery to the
Representatives for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before Closing Time or the Date of Delivery, as the case
may be. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Initial Securities and the Option
Securities, if any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇ or Advest,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any Underwriter whose check
has not been received by Closing Time or the Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives not later than 10:00 A.M. on the last business day prior to
Closing Time or the Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) The Company will use its best efforts to cause the
Registration Statement (including any amendment thereto) to become
effective and will notify the Representatives immediately, and confirm
the notice in writing, (i) of the effectiveness of the Registration
Statement and any amendment thereto (including any post-effective
amendment thereto), (ii) of the receipt of any comments from the
Commission with respect to the transactions contemplated by this
Agreement or the Pricing Agreement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, or for additional
information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance by the Commission of
any such order and, if any such order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) The Company will give the Representatives notice of its
intention to file or prepare any amendment to the
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Registration Statement (including any post-effective amendment) or any
amendment or supplement to the Prospectus (including any revised
prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Securities which differs from the
prospectus on file at the Commission at the time the Registration
Statement becomes effective, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), will furnish the Representatives with copies of any such
amendment or supplement or other document proposed to be filed a
reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file any such amendment or supplement or
other document or use any such prospectus to which the Representatives
or counsel for the Underwriters shall object.
(c) The Company will make available to the Representatives a
signed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and will also deliver to the
Representatives as many conformed copies as the Representatives may
reasonably request of the Registration Statement and of each amendment
thereto for each of the Underwriters.
(d) The Company will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(e) During the period when the Prospectus is required to be
delivered, the Company will comply, so far as it is able and at its own
expense, with all requirements imposed upon them by the Commission and
by the 1933 Act, the 1933 Act Regulations, the 1934 Act and 1934 Act
Regulations, including, without limitation, Rule 10b-6 under the 1934
Act, so far as necessary to permit the continuance of sales or dealing
in shares of Common Stock during such period in accordance with the
provisions hereof and the Prospectus.
(f) If any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters,
to amend or supplement the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, the Company will forthwith amend or
supplement
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the Prospectus (in form and substance satisfactory to counsel for the
Underwriters), whether by filing documents pursuant to the 1934 Act or
otherwise, as may be necessary so that, as so amended or supplemented,
the Prospectus will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time it is delivered to a purchaser, not misleading, and the Company
will furnish to the Underwriters a reasonable number of copies of such
amendment or supplement.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Representatives may reasonably designate;
provided, however, that the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement. The Company will promptly
advise the Representatives of the receipt by it of any notification
with respect to the suspension of the qualification of the Securities
for sale in any jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(i) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(j) During a period of 45 days from the date hereof, the
Company will not, without the prior written consent of the
Representatives, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any securities that
are of the same or a similar class or series as the Securities (except
for Common Stock or
14
options issued pursuant to reservations, agreements, employee benefit
plans, stock option plans or dividend reinvestment and stock purchase
plans).
(k) If, at the time that the Registration Statement becomes
effective, any information shall have been omitted therefrom in
reliance upon Rule 430A of the 1933 Act Regulations, then immediately
following the execution of the Pricing Agreement, the Company will
prepare, and file or transmit for filing with the Commission in
accordance with such Rule 430A and Rule 424(b) of the 1933 Act
Regulations, copies of the amended Prospectus, or, if required by such
Rule 430A, an additional post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information
so omitted.
(l) Other than as permitted by the 1933 Act and the 1933 Act
Regulations, the Company will not distribute any prospectus, offering
circular or other offering material in connection with the offering and
sale of the Securities.
(m) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file
all documents required to be filed with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing or reproduction and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the printing or reproduction of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Securities, (iv) the fees and disbursements of the
Company's counsel and accountants, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of the Company's
counsel in connection therewith and in connection with the preparation of the
Blue Sky Survey, (vi) the printing or reproduction and delivery to the
Underwriters of copies of the Registration Statement as originally filed and all
amendments thereto, of any preliminary prospectuses, and of the Prospectus and
any amendments or supplements to either of the foregoing, and the other
documents in connection with the offering of the Securities, (vii) the
reproduction and delivery to the Underwriters of copies of Blue Sky Survey, and
(viii) the fees and expenses incurred with
15
respect to any filing with the National Association of Securities Dealers, Inc.
If this Agreement is terminated by the Representatives in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their actual accountable out-of-pocket
expenses, including the fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company herein contained, to the
performance by the Company of all of its covenants and other obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date hereof, or with the consent of the
Representatives, at a later time and date, not later, however, than
5:30 P.M. on the first business day following the date hereof, or at
such later time and date as may be approved by a majority in interest
of the Underwriters; and at Closing Time or a Date of Delivery, as the
case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. If the
Company has elected to rely upon Rule 430A of the 1933 Act Regulations,
the price of the Securities and any price-related information
previously omitted from the effective Registration Statement pursuant
to such Rule 430A shall have been transmitted to the Commission for
filing pursuant to Rule 424(b) of the 1933 Act Regulations within the
prescribed time period, and prior to Closing Time the Company shall
have provided evidence satisfactory to the Representatives of such
timely filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance
with the requirements of Rule 430A of the 1933 Act Regulations.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of Closing Time,
of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, to
the effect that:
16
(i) The Company was incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The Company is a registered savings and
loan holding company under HOLA and has corporate
power and corporate authority to own, lease and
operate its properties and to conduct its business as
described in the Registration Statement.
(iii) To the knowledge of such counsel, the
authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if
any, pursuant to reservations or agreements referred
to therein).
(iv) Each subsidiary of the Company was
incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and
corporate authority to own, lease and operate its
properties and to conduct its business as described
in the Registration Statement; and all of the issued
and outstanding capital stock of each such subsidiary
has been duly authorized and validly issued, is fully
paid and non-assessable and, to such counsel's
knowledge, is owned by the Company, directly or
through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien or encumbrance.
(v) The Securities to be purchased by the
Underwriters pursuant to this Agreement have been
duly and validly authorized for issuance and sale to
the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company to the
Underwriters pursuant to this Agreement against
payment of the consideration set forth in the Pricing
Agreement, will be validly issued and fully paid and
non-assessable.
(vi) The issuance of the Securities is not
subject to preemptive rights arising by operation of
law or under the charter or by-laws of the Company;
the Common Stock conforms in all material respects to
the descriptions thereof in the Prospectus; and the
form of certificate used to evidence the Common Stock
is in due and proper
17
form and complies with all applicable requirements of
the Delaware Corporation Law and HOLA.
(vii) This Agreement and the Pricing Agreement
have been duly authorized, executed and delivered by
the Company.
(viii) No further approval, authorization,
consent, notice or other order of the Commission, the
Office of Thrift Supervision, the Board of Governors
of the Federal Reserve System, or the Federal Deposit
Insurance Corporation is required in connection with
the execution and delivery of this Agreement or the
Pricing Agreement or the issuance of the Securities,
except for such approvals, authorizations, consents,
notices or orders as have been obtained under the
1933 Act, HOLA, the Bank Holding Company Act of 1956
or the Federal Deposit Insurance Act, each as
amended, if applicable.
(ix) The Registration Statement has become
effective under the 1933 Act and, to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(x) At the time the Registration Statement
became effective and at the Representation Date, the
Registration Statement (other than the historical and
pro forma financial statements and supporting
schedules included therein or omitted therefrom, as
to which no opinion need be rendered) complied as to
form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations.
(xi) The information in the Prospectus under the
captions "Risk Factors -- Legislative and General
Regulatory Developments", " -- Elimination of Federal
Savings Association Charter", "The Shawmut
Transaction" and "Description of Capital Stock", and
the information in the Company's Annual Report on
Form 10-K for the year ended December 31, 1994 under
the captions "Federal Savings and Loan Holding
Company Regulation" and "Bank Regulation", to the
extent that such information constitutes matters of
law, summaries
18
of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by them and is correct
in all material respects.
(xii) To such counsel's knowledge, the execution
and delivery of this Agreement and the Pricing
Agreement by the Company and the sale of Securities
by the Company as contemplated herein and therein
will not (A) constitute a breach of, or default
under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to
such counsel or (B) result in any violation of the
provisions of the charter or by-laws of the Company
or any subsidiary or any of the laws and regulations
identified in paragraph (viii) above of this Section
5(b)(1).
(xiii) Each document filed pursuant to the 1934
Act and incorporated by reference in the Prospectus
(other than the historical and pro forma financial
statements and supporting schedules included therein
or omitted therefrom as to which no opinion need be
rendered) complied when so filed as to form in all
material respects with the 1934 Act and the 1934 Act
Regulations.
(xiv) To such counsel's knowledge, no holder of
securities of the Company has rights to the
registration of securities of the Company because of
the filing of the Registration Statement.
(2) The favorable opinion, dated as of each Closing
Time, of ▇▇▇▇▇ & Wood, counsel to the Underwriters, with
respect to the matters set forth in (i), (v), (vi), (vii),
(ix) and (x) of subsection (b)(1) of this Section.
(3) In giving its opinion required by subsection
(b)(1) this Section, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall additionally
state that no facts have come to their attention that have
caused them to believe (i) that the Registration Statement
(except for historical and pro forma financial statements and
schedules and other financial or statistical data included
therein or omitted therefrom as to which such counsel need
make no statement) at the time it became effective, contained
an untrue statement of a material fact or omitted to
19
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus (except as aforesaid), at the
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of the
Securities which differs from the Prospectus on file at the
Commission at the Representation Date, in which case at the
time it is first provided to the Underwriters for such use) or
at Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; (ii) that there are any legal or governmental
proceedings pending or threatened which are required to be
disclosed in the Registration Statement, other than those
disclosed therein; and (iii) that there are any licenses,
franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed or
incorporated by reference as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto; and that the descriptions
thereof or references thereto are not correct in all material
respects.
(4) In giving its opinion required by subsection
(b)(2) of this Section, ▇▇▇▇▇ & Wood shall additionally state
that no facts have come to their attention that have caused
them to believe that the Registration Statement (except for
historical and pro forma financial statements and schedules
and other financial or statistical data included therein or
omitted therefrom as to which such counsel need make no
statement) at the time it became effective or at the
Representation Date, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, at the Representation
Date (unless the term "Prospectus" refers to a prospectus
which has been provided to the Underwriters by the Company for
use in connection with the offering of the Securities which
differs from the Prospectus on file at the Commission at the
Representation Date, in which case at the time it is first
provided to the Underwriters for such use) or at Closing Time,
included or includes an untrue
20
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(5) In rendering their opinion required by subsection
(b)(1) of this Section, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. may rely on the
opinion of the Company's general counsel, [▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
O'Brien], as to matters of Connecticut law or as to matters
relating to subsidiaries of the Company other than ▇▇▇▇▇▇▇
Bank, a federal savings bank.
(c) At Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any material adverse
change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
and the Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief financial
officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties of the Company contained in Section 1
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part
to be complied with or satisfied at or prior to Closing Time and (iv)
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or to their knowledge threatened by the Commission. As used
in this Section 5(c), the term "Prospectus" means the Prospectus in the
form first used to confirm sales of the Securities.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from KPMG Peat Marwick LLP a letter
dated such date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) they are independent certified public
accountants with respect to the Company and its subsidiaries
within the meaning of the 1933 Act and the applicable
published rules and regulations thereunder;
21
(ii) in their opinion, the consolidated financial
statements and supporting schedules of the Company and its
subsidiaries, and the restated consolidated financial
statements of the Company and its subsidiaries, audited by
them and included or incorporated by reference in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the
related published rules and regulations thereunder and, if
applicable, they have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim
financial statements for the periods specified in such letter,
as indicated in their reports thereon;
(iii) The selected consolidated financial data with
respect to the consolidated financial position and results of
operations of the Company and its subsidiaries for the five
most recent fiscal years included in the Prospectus agrees
with the corresponding amounts in the restated consolidated
financial statements (audited where applicable) for such five
fiscal years;
(iv) based upon limited procedures (not constituting
an audit), consisting of a reading of the unaudited
consolidated financial statements (as restated where
applicable) and other information referred to below, a reading
of the latest available interim financial statements of the
Company and its subsidiaries, inspection of the minute books
of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated
by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing has come to their
attention which causes them to believe that:
(A) the unaudited financial statements of
the Company and its subsidiaries (as restated where
applicable) included or incorporated by reference in
the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the 1933 Act and the related
published rules and regulations thereunder, or are
not in conformity with generally accepted accounting
principles applied
22
on a basis substantially consistent with the basis
for the audited restated consolidated financial
statements included in the Prospectus;
(B) any other unaudited income statement
data or balance sheet items included in the
Prospectus do not agree with the corresponding items
in the unaudited consolidated financial statements
(as restated where applicable) from which such data
and items were derived, and any such unaudited data
and items were not determined on a basis
substantially consistent with the basis for the
corresponding amounts in the audited restated
consolidated financial statements included in the
Prospectus;
(C) the unaudited financial statements which
were not included in the Prospectus but from which
were derived any unaudited financial statements
referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with
the basis for the audited restated consolidated
financial statements included in the Prospectus;
(D) at a specified date not more than three
days prior to the date of such letter, there has been
any change in the capital stock of the Company or any
increase in the consolidated long term debt of the
Company and its subsidiaries or any decrease in the
total assets or shareholders' equity of the Company
and its subsidiaries, in each case as compared with
the amounts shown in the most recent restated
consolidated balance sheet included or incorporated
by reference in the Prospectus, except in each case
for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or
which are described in such letter; or
(E) during the period from September 30,
1995 to a specified date not more than three days
prior to the date of such letter, there were any
decreases in total revenues, net income or net income
per share of the Company and its subsidiaries or
other items specified by the Representatives, or any
increases in any items specified by the
Representatives, in each case as
23
compared with the corresponding period in the
preceding year, except in each case for increases or
decreases which the Prospectus discloses have
occurred or may occur or which are described in such
letter;
(iv) in addition to the examination referred to in
their opinion and the limited procedures referred to in clause
(iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
included or incorporated by reference in the Prospectus and
which were specified by the Representatives and have found
such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries; and
(v) on the basis of a reading of the pro forma
financial information included and incorporated by reference
in the Prospectus (the "pro forma financial information"),
carrying out certain specified procedures, inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma financial
information, nothing came to their attention which caused them
to believe that the pro forma financial information does not
comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or
that the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of such
information.
(e) At Closing Time, the Representatives shall have received
from KPMG Peat Marwick LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the specified
date referred to shall be a date not more than three days prior to
Closing Time, and, if the Company has elected to rely on Rule 430A of
the 1933 Act Regulations, to the further effect that they have carried
out procedures as specified in clause (iv) of subsection (d) of this
Section with respect to certain amounts, percentages and financial
information deemed to be a part of the Registration Statement pursuant
to Rule 430A(b) and found such amounts, percentages and financial
information to be in agreement with the records specified in such
clause (iv).
24
(f) At the time of the execution of this Agreement, the
Representatives shall have received from Coopers & ▇▇▇▇▇▇▇ L.L.P.,
independent auditors for ▇▇▇▇▇▇▇, a letter dated such date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) they are independent public accountants with
respect to ▇▇▇▇▇▇▇ and its subsidiary within the meaning of
the 1933 Act and the applicable published rules and
regulations thereunder;
(ii) in their opinion, the consolidated financial
statements and supporting schedules of ▇▇▇▇▇▇▇ and its
subsidiary audited by them and incorporated by reference in
the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the
related published rules and regulations thereunder and, if
applicable, they have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim
financial statements for the periods specified in such letter,
as indicated in their reports thereon;
(iii) based upon limited procedures (not constituting
an audit), consisting of a reading of the unaudited
consolidated financial statements and other information
referred to below, inspection of the minute books of the
▇▇▇▇▇▇▇ and its subsidiary since the date of the latest
audited financial statements incorporated by reference in the
Prospectus, inquiries of officials of ▇▇▇▇▇▇▇ and its
subsidiary responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in
such letter, nothing has come to their attention which causes
them to believe that the unaudited financial statements of
▇▇▇▇▇▇▇ and its subsidiary incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act,
or are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
the basis for the audited consolidated financial statements of
▇▇▇▇▇▇▇ incorporated by reference in the Prospectus;
(iv) in addition to the examination referred to in
their opinion and the limited procedures referred to in clause
(iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial
25
information which are included or incorporated by reference in
the Prospectus and which were specified by the Representatives
and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of ▇▇▇▇▇▇▇ and its subsidiary.
(g) At Closing Time, the Representatives shall have received
from Coopers & ▇▇▇▇▇▇▇ L.L.P. a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section.
(h) At Closing Time and at each Date of Delivery, if any,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to the Representatives and counsel for the
Underwriters.
(i) In the event the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of each Date of
Delivery, and the Representatives shall have received:
(1) A certificate of the President or a Vice
President and of the chief financial officer of the Company,
dated such Date of Delivery, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
in form and substance reasonably satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the
opinion required by Section 5(b)(1) hereof.
26
(3) The favorable opinion of ▇▇▇▇▇ & Wood, counsel
for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as the
opinion required by Section 5(b)(2) hereof.
(4) A letter from KPMG Peat Marwick LLP, in form and
substance satisfactory to the Representatives, dated such Date
of Delivery, substantially the same in scope and substance as
the letter furnished to the Representatives pursuant to
Section 5(d) hereof, except that the "specified date" in the
letter furnished pursuant to this Section 5(i)(4) shall be a
date not more than three days prior to such Date of Delivery.
(5) A letter from Coopers & ▇▇▇▇▇▇▇ L.L.P., in form
and substance satisfactory to the Representatives, dated such
Date of Delivery, substantially the same in scope and
substance as the letter furnished to the Representatives
pursuant to Section 5(f) hereof.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls each Underwriter within the meaning of
Section 15 of the 1933 Act as follows (each such person being an "Indemnified
Party"):
(i) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, to which such Indemnified Party
may become subject under any applicable Federal or state law, or
otherwise, and related to or arising out of (A) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any post-effective amendment thereto),
including the information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) of the 1933 Act Regulations, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (B) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement
27
to any of the foregoing) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, (C) any breach by the Company of any of its
representations, warranties and agreements contained herein, or (D) the
issuance and sale of the Securities, any transaction relating to the
issuance and sale of the Securities or the engagement of the
Representatives pursuant to, and the performance by the Representatives
of the services contemplated by, this Agreement;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever
based upon any claim whatsoever based upon any item in clauses (A)
through (D) of subsection (a)(i) of this Section, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by the Representatives) reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon
any item in clauses (A) through (D) of subsection (a)(i) of this
Section, to the extent that any such expense is not paid under
subsections (a)(i) or (ii) of this Section.
(b) The Company shall not, however, be liable to an Indemnified Party
for such loss, claim, settlement, damage or liability under (i) clauses (A) or
(B) of subsection (a)(i) of this Section to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); (ii) clause (B) of
subsection (a)(i) of this Section to the extent arising out of any untrue
statement contained in or omission from any preliminary prospectus if the
Company shall sustain the burden of proving that the person making such claim
was not sent or given a copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the written confirmation of the sale of such
Securities to such person and the untrue statement contained in or omission from
such preliminary prospectus was corrected in the Prospectus (or
28
the Prospectus as amended or supplemented); and (iii) clause (D) of subsection
(a)(i) of this Section that is found in a final judgment by a court of competent
jurisdiction to have resulted primarily from the bad faith or gross negligence
of, unlawful act of, or willful breach of this Agreement (which breach is
materially detrimental to the Company) by such Indemnified Party, other than
actions performed at the request or with the consent of the Company.
(c) The Company also agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company or its security holders or creditors related to or arising out of the
engagement of the Representatives pursuant to, or the performance by the
Representatives of the services contemplated by, this Agreement, except to the
extent that any loss, claim, damage or liability is found in a final judgment by
a court to have resulted from the Indemnified Party's bad faith or gross
negligence, as the case may be.
(d) Each Indemnified Party shall give prompt notice of any action
commenced against it in respect of which indemnity may be sought hereunder but
failure to so notify the Company shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. The Company
may participate at its own expense in the defense of such action. In no event
shall the Company be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
Indemnified Parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(e) The Company agrees that, without the prior written consent of the
Representatives, it will not settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in respect of
which indemnification could be sought under the indemnification provision in
this Section 6 (whether or not the Underwriters or any other Indemnified Party
is an actual party to such claim, action or proceeding), unless such settlement,
compromise or consent includes an unconditional release, satisfactory in form
and substance to the Representatives, of each Indemnified Party from all
liability arising out of such claim, action or proceeding.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
29
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the public offering price appearing
thereon and the Company is responsible for the balance; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Company, and
shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement. (a) The Representatives may
terminate this Agreement, by notice to the Company, at any time at or prior to
Closing Time (i) if there shall have been, since the date of this Agreement or
since the respective dates as of which information is given in the Registration
Statement, any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there shall have occurred any material adverse change in
the financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which is such as to make it, in the reasonable judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in the Common Stock shall have been
suspended by the Commission or a national securities exchange, or if trading
generally on either the
30
American Stock Exchange or the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by either of
said Exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either federal, New
York or Connecticut authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4, and provided further that Sections 6 and 7 hereof shall
survive such termination.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Initial
Securities which it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the "Defaulted Securities"), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(i) if the number of Defaulted Securities does not exceed 10% of
the Initial Securities, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
Initial Securities, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
31
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o Merrill ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇;
notices to the Company shall be directed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇.
SECTION 12. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters and the
Company and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and thereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or the Pricing Agreement or any provision herein or therein contained. This
Agreement and the Pricing Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law. This Agreement and the Pricing Agreement and
the rights and obligations of the parties created hereby and thereby shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Specified times
of day refer to New York City time.
32
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇ FINANCIAL CORPORATION
By:
-------------------------------
Authorized Signatory
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
ADVEST, INC.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
--------------------------------
Authorized Signatory
For themselves and as Representatives of
other Underwriters named in Schedule A hereto.
33
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated...................................
Advest, Inc................................................
Total.................................................. 1,100,000
=========
34
Exhibit A
1,100,000 Shares
▇▇▇▇▇▇▇ FINANCIAL CORPORATION
(a Delaware corporation)
Common Stock
(Par Value $.01 Per Share)
PRICING AGREEMENT
, 199
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
ADVEST, INC.
as Representatives of the several Underwriters
named in the within-mentioned Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
Reference is made to the Purchase Agreement, dated , 199 (the "Purchase
Agreement"), relating to the purchase by the several Underwriters named in
Schedule A thereto (the "Underwriters"), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Advest, Inc. are acting as
representatives (the "Representatives"), of the above shares of Common Stock
(the "Securities"), of ▇▇▇▇▇▇▇ Financial Corporation (the "Company").
Pursuant to Section 2 of the Purchase Agreement, the Company agrees
with each Underwriter as follows:
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $ .
2. The purchase price per share for the Securities to be paid
by the several Underwriters shall be $ , being
an amount equal to the initial public offering price set forth above
less $ per share.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇ FINANCIAL CORPORATION
By:
----------------------------------
Authorized Signatory
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
ADVEST, INC.
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By:
-------------------------------
Authorized Signatory
For themselves and as Representatives of the
other Underwriters named in Schedule A to the
Purchase Agreement.
A-2
