EXHIBIT 1.3
BBC CAPITAL TRUST II
(a Delaware business trust)
2,000,000 Cumulative Preferred Securities
_____% Trust Preferred Securities
(Liquidation Amount $25 per Trust Preferred Security)
UNDERWRITING AGREEMENT
__________, 2002
Xxxx, Xxxx & Co., LLC
As Representative of the several Underwriters,
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
BBC Capital Trust II (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 BankAtlantic Bancorp, Inc., a Florida corporation
(the "Company" and, together with the Trust, the "Offerors") as depositor of the
Trust and as guarantor, hereby confirm their agreement (the "Agreement") with
Xxxx Xxxx & Co., LLC ("Xxxx Xxxx") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters"), with respect to the issue
and sale by the Trust and the purchase by the Underwriters, acting severally and
not jointly, in such amounts as are set forth in Schedule A hereto opposite the
name of such Underwriter, 2,000,000 (the "Initial Securities") of the Trust's
_____% Trust 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 300,000 Preferred Securities (the
"Option Securities") as set forth herein. The term "Preferred Securities" as
used herein, unless indicated otherwise, shall mean the Initial 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 ____________, 2002 (the "Trust Agreement"), among the
Company as depositor, and Wilmington Trust Company (the "Trust Company"), a
Delaware banking corporation, as property trustee ("Property Trustee") and as
Delaware trustee (the "Delaware Trustee") and Xxxx X. Xxxxx, Xxxxx X. Xxxxx and
Xxxxxx X. Xxxxx (the "Administrative Trustees," and together with the Property
Trustee and the Delaware Trustee, the "Trustees"). 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 Preferred Securities
Guarantee Agreement dated as of __________2002 (the "Guarantee Agreement")
between the Company and the Trust Company, as guarantee trustee (the "Guarantee
Trustee"). The assets of the Trust will consist of _____%
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junior subordinated debentures due ____________, 2032 (the "Junior Subordinated
Debentures") of the Company which will be issued under an indenture dated as of
____________, 2002 (the "Indenture"), between the Company and the Trust Company,
as trustee (the "Indenture Trustee"). The Company has agreed to guarantee to pay
all costs, expenses and liabilities of the Trust payable to third parties, with
certain exceptions pursuant to the Agreement as to Expenses and Liabilities, to
be dated as of the Closing Time, between the Company and the Trust (the "Expense
Agreement"). Under certain circumstances, the Junior 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 Junior
Subordinated Debentures.
The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File Nos.
333-71594 and 333-71594-01) in respect of the Preferred Securities, the
Guarantee and the Junior Subordinated Debentures, including a prospectus
relating to the Preferred Securities, the Guarantee and the Junior Subordinated
Debentures under the Securities Act of 1933, as amended (the "1933 Act"), and
will file with the Commission a prospectus supplement to reflect the terms of
the Preferred Securities, the Guarantee and the Junior Subordinated Debentures
and the terms of the offering thereof pursuant to Rule 424(b) ("Rule 424(b)") of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). The term "Registration Statement" means such registration
statement, as amended at the time of this Agreement. The term "Basic Prospectus"
means a prospectus included in the Registration Statement. The term "Prospectus"
means the Basic Prospectus together with the prospectus supplement specifically
relating to the Preferred Securities, the Guarantee and the Junior Subordinated
Debentures as filed with the Commission pursuant to Rule 424 (the "Prospectus
Supplement"). The term "Preliminary Prospectus" means a preliminary prospectus
supplement specifically relating to the Preferred Securities, the Guarantee and
the Junior Subordinated Debentures together with the Basic Prospectus. As used
herein, the terms "Registration Statement," "Basic Prospectus," "Prospectus" and
"Preliminary Prospectus" shall include in each case the material incorporated by
reference therein.
The Company understands that the Underwriters propose to make
a public offering of the Preferred Securities (the "Offering") as soon as the
Underwriters deem advisable after this Agreement has been executed and
delivered. The Underwriters may assemble and manage a selling group of
broker-dealers that are members of the National Association of Securities
Dealers, Inc. ("NASD") to participate in the solicitation of purchase orders for
the Preferred Securities under a selected dealer agreement.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and
warrant to and agree with each of the Underwriters that:
(i) The Registration Statement has become
effective under the 1933 Act. The Company meets the requirements for
use of Form S-3 under the 1933 Act. When the
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Registration Statement became effective and at all times subsequent
thereto up to the Closing Time referred to below and with respect to
Option Securities, up to the Option Closing Date referred to below, (A)
the Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations; (B) neither the
Registration Statement nor any amendment or supplement thereto
contained or will contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (C)
neither the Prospectus nor any amendment or supplement thereto included
or will include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
except that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Offerors by the Underwriters
expressly for use in the Registration Statement or the Prospectus, or
any information contained in any Form T-1 which is an exhibit to the
Registration Statement. The statements contained under the caption
"Underwriting" in the Prospectus constitute the only information
furnished to the Offerors in writing by the Underwriters expressly for
use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at
the time they were filed with the Commission, complied in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective did 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, and at all times subsequent thereto up to the Closing Time,
and with respect to Option Securities, up to the Option Closing Date,
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, in each case after
excluding any statement that does not constitute a part of the
Registration Statement or the Prospectus pursuant to Rule 412 of the
1933 Act Regulations.
(iii) KPMG LLP, with respect to the Company and
its subsidiaries and, to the best of the Company's knowledge, Xxxxx
Xxxxxx & Company LLP with respect to Community Savings Bankshares, Inc.
("Community"), are each independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized,
executed and delivered by the Offerors and, when duly executed by the
Underwriters, will constitute the valid and binding agreement of the
Offerors enforceable against the Offerors in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
or reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Guarantee Agreement, the Junior Subordinated
Debentures, the Trust Agreement, the Indenture and the Expense
Agreement have each been duly authorized and when validly executed and
delivered by
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the Company and, in the case of the Guarantee, by the Guarantee
Trustee, in the case of the Trust Agreement, by the Trustees, and in
the case of the Indenture, by the Indenture Trustee, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their respective terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or general equitable principles. The Junior
Subordinated Debentures are entitled to the benefits of the Indenture.
The Guarantee Agreement, the Junior Subordinated Debentures, the Trust
Agreement and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus. The Trust Agreement, the
Guarantee Agreement and the Indenture have been duly qualified under
the Trust Indenture Act of 1939, as amended (the "TIA")
(v) The consolidated financial statements,
audited and unaudited (including the notes thereto), included or
incorporated by reference in the Registration Statement present fairly
the consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the consolidated results of operations
and cash flows of the Company and its subsidiaries for the periods
specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as otherwise stated
therein. The financial statement schedules, if any, included in the
Registration Statement present fairly the information required to be
stated therein. The selected financial, pro forma and statistical data
included in the Prospectus are accurate in all material respects and
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Registration
Statement.
(vi) The Company is a corporation duly organized
and validly existing under the laws of the State of Florida whose
status is active with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business as
described in the Prospectus. Each subsidiary of the Company (for
purposes of this Agreement, a "subsidiary" shall only refer to a
company or other entity in which the Company owns directly or
indirectly more than 50% of the equity interest) is an entity duly
organized, validly existing and in good standing or its status is
active under the laws of its respective jurisdiction of organization
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business. The Company and each
of its subsidiaries is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the condition (financial or
otherwise), or earnings, business affairs, assets or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(vii) The Company is duly registered with the
Office of Thrift Supervision as a savings and loan holding company
under the Home Owners' Loan Act of 1933 as amended. Each subsidiary of
the Company that conducts business as a savings association is duly
authorized to conduct such business in each jurisdiction in which such
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business is currently conducted, except to the extent that the failure
to be so authorized would not have a material adverse effect on the
condition (financial or otherwise), or earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise. The deposit accounts of BankAtlantic, A
Federal Savings Bank (the "Bank") are insured by the Federal Deposit
Insurance Corporation (the "FDIC"), up to the maximum allowable limits
thereof. The Offerors have all such power, authority, authorization,
approvals and orders as may be required to enter into this Agreement,
to carry out the provisions and conditions hereof and to issue and sell
the Preferred Securities and the Junior Subordinated Debentures.
(viii) The Bank is a federally chartered savings
association duly organized, validly existing and in good standing under
the laws of the United States with corporate power and authority under
such laws to own, lease and operate its properties and conduct its
business. The Bank is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of
the Company and its subsidiaries, considered as one enterprise. All of
the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable, except as disclosed in the Prospectus and are owned
by the Company, directly or through one or more subsidiaries, free and
clear of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind, except that the subsidiaries Hartwood
Holdings, Inc. and Xxxxxx at Amherst, Inc. are not wholly-owned.
(ix) Except for the Bank, Xxxxxx, LLC and Xxxx
Xxxx, the Company does not have any "significant subsidiaries" as
defined in Rule 1-02 of Regulation S-X of the Commission.
(x) The Company had at the date indicated a duly
authorized and outstanding capitalization as set forth in the
Prospectus under the caption "Capitalization".
(xi) The Preferred Securities have been duly and
validly authorized by the Trust for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Trust to the Underwriters pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued,
fully paid and non-assessable, and 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. The
Preferred Securities conform, in all material respects, to the
statements relating thereto contained in the Prospectus and such
description conforms, in all material respects, to the rights set forth
in the instruments defining the same. The holders of the Preferred
Securities (the "Securityholders") 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, and the issuance of the Preferred Securities is
not subject to the preemptive or other similar rights of any
securityholder of the Trust.
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(xii) The Common Securities have been duly and
validly authorized by the Trust and upon delivery by the Trust to the
Company against payment therefor as described in the Prospectus, will
be duly and validly issued, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will conform, in
all material respects, to the description thereof contained in the
Prospectus. The issuance of the Common Securities is not subject to
preemptive or other similar rights, and at the Closing Time, and with
respect to Option Securities, at the Option Closing Date, all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(xiii) The Trust has been duly created and is
validly existing as a statutory business trust in good standing under
the Delaware Act with the power and authority to own, lease and operate
its properties and conduct its business as described in the Prospectus,
and the Trust has conducted no business to date other than activities
related to the Offering, and it will conduct no business in the future
that would be inconsistent with the description of the Trust set forth
in the Prospectus. The Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust Agreement
and the agreements and instruments contemplated by the Trust Agreement
or described in the Prospectus. The Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described in
the Prospectus, and the Trust is not a party to or subject to any
action, suit or proceeding of any nature.
(xiv) The issuance and sale of the Preferred
Securities and the Common Securities by the Trust, the compliance by
the Trust with all of the provisions of this Agreement, the purchase of
the Junior Subordinated Debentures by the Trust, and the consummation
of the transactions herein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, loan agreement, mortgage, deed of trust
or other agreement or instrument to which the Trust is a party or by
which the Trust is bound or to which any of the property or assets of
the Trust is subject, nor will such action result in any violation of
the provisions of the Trust Agreement or any statute or any order, rule
or regulation of any court, other governmental agency or body having
jurisdiction over the Trust or any of its properties. No consent,
approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court, other
governmental agency or body is required to be obtained by the Trust for
the issuance and sale of the Preferred Securities and the Common
Securities by the Trust, the purchase of the Junior Subordinated
Debentures by the Trust or the consummation by the Trust of the
transactions contemplated by this Agreement and the Trust Agreement,
except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already
been obtained, or as may be required under the state securities laws.
(xv) The issuance by the Company of the Guarantee
and the Junior Subordinated Debentures, the compliance by the Company
with all of the provisions of this Agreement, the execution, delivery
and performance by the Company of the Trust Agreement, the Junior
Subordinated Debentures, the Guarantee Agreement, the Indenture
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and the Expense Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any material indenture, loan agreement, mortgage, deed
of trust, or other material agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the articles
of incorporation or by-laws of the Company or any of its subsidiaries
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties, except in
any case for such conflicts, breaches, defaults or violations that
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of
the Company and its subsidiaries considered as one enterprise. No
consent, approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court or other
governmental agency or body is required for the issuance of the
Guarantee and the Junior Subordinated Debentures or the consummation by
the Company of the other transactions contemplated by this Agreement,
except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already
been obtained, or as may be required under the state securities laws.
(xvi) The Trust and the Company are not, and after
giving effect to the offering and sale of the Preferred Securities and
the Junior Subordinated Debentures will not be, an "investment
company," or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xvii) All of the outstanding shares of capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable, and none of the outstanding shares
of capital stock was issued in violation of the preemptive rights of
any stockholder of the Company.
(xviii) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, there has not been (A) any material
adverse change in the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock,
excluding the regular per share quarterly dividend paid on Class A and
Class B Common Stock. Neither the Company, the Bank nor any of its
subsidiaries has any material liability of any nature, contingent or
otherwise, except as set forth in the Prospectus, other than
liabilities incurred in the ordinary course of business.
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(xix) Neither the Company nor any of its
subsidiaries is in violation of any provision of its articles of
incorporation, charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which it is a party, by which
it may be bound or to which any of its properties may be subject,
except for such violations or defaults that would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xx) Except as disclosed in the Prospectus, there
is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending
or, to the knowledge of the Company, threatened against the Company,
the Bank or any other subsidiary (A) that is required to be disclosed
in the Prospectus, (B) that could reasonably be expected to result in
any material adverse change in the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company
and its subsidiaries, considered as one enterprise, (C) that could
reasonably be expected to materially and adversely affect the
properties or assets of the Company and its subsidiaries, considered as
one enterprise or (D) that could reasonably be expected to materially
and adversely affect the consummation of the transactions contemplated
in this Agreement. All pending legal or governmental proceedings to
which the Company, the Bank or any other subsidiary is a party that are
not described in the Prospectus, including ordinary routine litigation
incidental to its business, if decided in a manner adverse to the
Company, would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxi) There are no material contracts or documents
of a character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described and filed as required.
(xxii) Each of the Company and its subsidiaries has
good and marketable title to all properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as (A) are described in the
Prospectus or (B) are neither material in amount nor materially
significant in relation to the business of the Company and its
subsidiaries, considered as one enterprise. All of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, are in full force and effect, and neither
the Company, the Bank nor any other subsidiary has any (A) notice of
any material claim that has been asserted by anyone adverse to the
rights of the Company, the Bank or any other subsidiary under any of
the leases or subleases mentioned above or (B) notice of anyone
affecting or questioning the rights of such corporation to the
continued possession of the leased or subleased premises under any such
lease or sublease.
(xxiii) Each of the Company and its subsidiaries
owns, possesses or has obtained all material governmental licenses,
permits, certificates, consents, orders,
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approvals and other authorizations necessary to own or lease, as the
case may be, and to operate its properties and to carry on its business
as presently conducted except where the failure to possess or obtain
the same would not singularly or in the aggregate have a material
adverse effect on the condition (financial or otherwise), or earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, and neither the Company,
the Bank nor any other subsidiary has received any notice of any
restriction upon, or any notice of proceedings relating to revocation
or modification of, any such licenses, permits, certificates, consents,
orders, approvals or authorizations in each case where such revocation,
modification or failure of renewal would have a material adverse effect
on the condition (financial or otherwise), or earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xxiv) Except as disclosed in the Prospectus, no
labor problem exists with the employees of the Company, the Bank or any
other subsidiary or to the best knowledge of the Company, is imminent
that could materially adversely affect the condition (financial or
otherwise), or earnings, business affairs, assets or business prospects
of Company and its subsidiaries, considered as one enterprise. The
Company is not aware of any existing or imminent labor disturbance by
the employees of any of its, the Bank's or any other subsidiary's
principal suppliers, contractors or customers that could reasonably be
expected to materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xxv) There are no persons with registration or
other similar rights to have any securities of the Company registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act.
(xxvi) Except as disclosed in the Prospectus, the
Company and its subsidiaries own or possess all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets or
other unpatented and/or unpatentable proprietary or confidential
information systems or procedures), trademarks, service marks and trade
names (collectively, "patent and proprietary rights") currently
employed by them in connection with the business now operated by them
except where the failure to so own, possess or acquire such patent and
proprietary rights would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries considered as
one enterprise. Neither the Company, the Bank nor any other subsidiary
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any patent or
proprietary rights, and which infringement or conflict (if the subject
of any unfavorable decision, rule and refinement, singly or in the
aggregate) could reasonably be expected to result in any material
adverse change in the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxvii) The Company and each subsidiary of the
Company have filed all federal, state and local income, franchise or
other tax returns required to be filed and have
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made timely payments of all taxes due and payable in respect of such
returns and no material deficiency has been asserted with respect
thereto by any taxing authority.
(xxviii) The Company has filed with NASD all
documents and notices required by NASD of companies that have issued
securities that are traded in the over-the counter market quotations
for which are reported by the Nasdaq National Market of the Nasdaq
Stock Market, Inc. ("Nasdaq National Market"). The Preferred Securities
have been approved for inclusion in the Nasdaq National Market.
(xxix) Neither the Company, the Bank nor any other
subsidiary has an agreement or understanding with any entity concerning
the future acquisition by the Company, the Bank or any other subsidiary
of a controlling interest in any entity that is required by the 1933
Act or the 1933 Act Regulations to be disclosed by the Company that is
not disclosed in the Prospectus. Neither the Company, the Bank nor any
other subsidiary has an agreement or understanding with any entity
concerning the future acquisition of a controlling interest in the
Company, the Bank or any other subsidiary by any entity that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed by
the Company that is not disclosed in the Prospectus.
(b) Any certificate signed by any authorized officer of
the Company or the Bank and delivered to the Underwriters or to counsel for the
Underwriters pursuant to this Agreement shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Trust that amount of Initial Securities
set forth in Schedule A of the 2,000,000 Initial Securities at the purchase
price of $25 per Preferred Security. The initial public offering price for the
Preferred Securities shall be $25 per Preferred Security. The commission per
Preferred Security to be paid by the Company to the Underwriters shall be $___
per Preferred Security and the distribution rate on the Preferred Securities
shall be __% per annum.
In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional 300,000 Preferred Securities in
accordance with the terms set forth in the preceding paragraph. The option
hereby granted will expire at 5:00 p.m. on the 30th day after the date of this
Agreement (or at 5:00 p.m. on the next business day if such 30th day is not a
business day) and may be exercised, on one occasion only, solely for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Securities upon notice by the Underwriters to
the Company setting forth the number of Option Securities as to which the
Underwriters are exercising the option and the time, date and place of payment
and delivery for the Option Securities. Such time and date of delivery (the
"Option Closing Date") shall be determined by the Underwriters but shall not be
later than five full business days after the
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exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, nor earlier than the second business day after the date on which the
notice of the exercise of the option shall have been given. If the option is
exercised as to all or any portion of the Option Securities, the Option
Securities as to which the option is exercised shall be purchased by the
Underwriters, severally and not jointly, in their respective underwriting
obligation proportions set forth in Schedule A.
(b) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxxx
Xxxxxxx & Xxxxxxxx, or at such other place as shall be agreed upon by the
Company and the Underwriters, at 9:30 a.m. on the third full business day after
the date hereof, or at such other time not more than seven full business days
thereafter as the Underwriters and the Company shall determine (such date and
time of payment and delivery being herein called the "Closing Time"). In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriters, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made at the above-mentioned
office of Xxxxxxx Xxxxxxx & Xxxxxxxx, or at such other place as shall be agreed
upon by the Company and the Underwriters, on the Option Closing Date as
specified in the notice from the Underwriters to the Company. Payment for the
Initial Securities and the Option Securities, if any, shall be made to the
Company by wire transfer of immediately available funds, against delivery to the
Underwriters for the respective accounts of the Underwriters of Preferred
Securities to be purchased by them.
(c) The Preferred 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 ("DTC") or in such names as the Underwriters may
request in writing at least one business day before the Closing Time or the
Option Closing Date, as the case may be. The Global Securities representing the
Initial Securities or the Option Securities to be purchased will be made
available for examination by the Underwriters and counsel to the Underwriters
not later than 10:00 a.m. on the business day prior to the Closing Time or the
Option Closing Date, as the case may be.
Section 3. CERTAIN COVENANTS OF THE OFFERORS. Each of the
Offerors covenants jointly and severally with each Underwriter as follows:
(a) The Offerors will cause the Prospectus Supplement to
be timely filed with the Commission in accordance with Rule 424(b) and will
notify the Underwriters immediately and confirm the notice in writing for so
long as the delivery of a prospectus is required in connection with this
Offering of the Preferred Securities, (i) when any post-effective amendment to
the Registration Statement, shall have become effective, or any supplement to
the Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission with respect to the Registration
Statement, (iii) of any request of the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional information
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Preferred Securities for offering or sale
in any jurisdiction, or of the institution or threatening of any proceedings for
any of such purposes. The Offerors will use every reasonable effort to prevent
12
the issuance of any such stop order or of any order preventing or suspending
such use and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) For so long as the delivery of a prospectus is
required in connection with this Offering of the Preferred Securities, the
Offerors will not at any time file or make any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (including documents
incorporated by reference into the Registration Statement or the Prospectus) of
which the Underwriters shall not previously have been advised and furnished a
copy, or to which the Underwriters or counsel for the Underwriters shall
reasonably object.
(c) The Offerors have furnished or will furnish to the
Underwriters as many signed and conformed copies of the Registration Statement
as originally filed and of each amendment thereto, copies of all exhibits and
documents filed therewith (including documents incorporated by reference into
the Prospectus pursuant to Item 12 of Form S-3 under the 0000 Xxx) and signed
copies of all consents and certificates of experts as the Underwriters may
reasonably request for so long as the delivery of a prospectus is required in
connection with this Offering of the Preferred Securities.
(d) The Offerors will deliver or cause to be delivered to
each Underwriter, without charge, as many copies of each Preliminary Prospectus
as such Underwriter may reasonably request, and the Offerors hereby consent to
the use of such copies for purposes permitted by the 1933 Act. The Offerors will
deliver or cause to be delivered to each Underwriter, without charge, as soon as
practicable after this Agreement has been executed and thereafter from time to
time as requested, during the period when the Prospectus is required to be
delivered under the 1933 Act or 1934 Act in connection with this Offering, such
number of copies of the Prospectus (as supplemented or amended) as such
Underwriter may reasonably request.
(e) The Company will comply to the best of its ability
with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934
Act Regulations, so as to permit the completion of the distribution of the
Preferred Securities as contemplated in this Agreement and in the Prospectus.
If, at any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Preferred Securities, any event shall occur or
condition exist as a result of which it is necessary, in the reasonable opinion
of counsel for the Underwriters or counsel for the Offerors, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b) hereof, such amendment or
supplement as may be necessary to correct such untrue statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements.
(f) The Offerors will use their best efforts, in
cooperation with the Underwriters, to qualify the Preferred Securities and the
Junior Subordinated Debentures, for offering and sale
13
under the applicable securities laws of such states and other jurisdictions as
the Underwriters may designate and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for so long as
may be necessary to complete the distribution of the Preferred Securities;
provided however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the
Preferred Securities have been qualified as above provided.
(g) The Company will make generally available (within the
meaning of Rule 158 of the 1933 Act Regulations ("Rule 158"), to the
Underwriters and the Securityholders as soon as practicable, but not later than
90 days after the close of the period covered thereby, an earnings statement of
the Company and its subsidiaries (in form complying with the provisions of Rule
158) covering a period of at least 12 months beginning after the effective date
of the Registration Statement but not later than the first day of the Company's
fiscal quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its
sale of the Preferred Securities, combined with the entire proceeds from the
issuance by the Trust to the Company of the Trust's Common Securities, to
purchase an equivalent amount of Junior Subordinated Debentures from the
Company. The Company and the Bank will use the net proceeds received by them
from the sale of the Junior Subordinated Debentures in the manner specified in
the Prospectus under the caption "Use of Proceeds."
(i) The Offerors, during the period when a prospectus is
required by the 1933 Act to be delivered in connection with sales of Preferred
Securities, will timely file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act.
(j) For so long as the delivery of a prospectus is
required in connection with this Offering of the Preferred Securities, the
Company will furnish to the Underwriters copies of all annual reports, quarterly
reports and current reports filed by the Company with the Commission and such
other documents, reports, proxy statements, and information as shall be
furnished by the Company to its stockholders generally.
(k) The Offerors will file with the Nasdaq National
Market all documents and notices required by the Nasdaq National Market of
companies that have issued securities that are traded in the over-the-counter
market and quotations for which are reported by the Nasdaq National Market.
(l) The Company shall pay the legal fees and related
filing fees of counsel to the Underwriters to prepare one or more "blue sky"
surveys (each, a "Blue Sky Survey") for use in connection with the offering of
the Preferred Securities as contemplated by the Prospectus and a copy of such
Blue Sky Survey or surveys shall be delivered to each of the Company and the
Underwriters.
14
(m) The Company will, at its expense, subsequent to the
issuance of the Preferred Securities, prepare and distribute to each of the
Underwriters and counsel to the Underwriters, a hard-bound copy of the documents
used in connection with the issuance of the Preferred Securities.
(n) The Offerors will not, prior to the Option Closing
Date or thirty (30) days after the date of this Agreement, whichever occurs
first, incur any material liability or obligation, direct or contingent, or
enter into any material transaction, other than in the ordinary course of
business, or any transaction with a related party which is required to be
disclosed in the Prospectus pursuant to Item 404 of Regulation S-K of the
Commission, except as contemplated by the Prospectus.
Section 4. PAYMENT OF EXPENSES. The Company will pay and bear
all costs and expenses incident to the performance of its and the Trust's
obligations under this Agreement, including (a) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits), as originally filed and as amended, the Preliminary Prospectuses and
the Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the Underwriters, (b) the preparation, printing and
distribution of this Agreement, the Preferred Securities and the Blue Sky Survey
(such counsel's fees shall not exceed $5,000), (c) the issuance and delivery of
the Preferred Securities to the Underwriters, including any transfer taxes
payable upon the sale of the Preferred Securities to the Underwriters, (d) the
fees and disbursements of the Company's counsel and accountants, (e) Nasdaq
National Market filing fees, (f) fees and disbursements of Underwriters'
counsel, in connection with the Blue Sky Survey, (g) the qualification of the
Preferred Securities under the applicable securities laws in accordance with
Section 3(f) hereof and any filing fee for review of the offering with the NASD,
(h) the legal fees and expenses (other than those applicable to the Blue Sky
Survey) of the Underwriters' counsel (such counsel's fees shall not exceed
$75,000) and general out-of-pocket expenses of the Underwriters, (i) the fees
and expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee, in connection with the Indenture and the
Junior Subordinated Debentures; (j) the fees and expenses of the Property
Trustee and Delaware Trustee, including the fees and disbursements of counsel
for the Property Trustee and the Delaware Trustee, in connection with the Trust
Agreement and the Certificate of Trust, and (k) all other costs incident to the
performance of the Offerors' obligations hereunder.
If (i) the Company abandons or terminates the Offering or (ii)
this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 5 or 9, the Company shall reimburse the Underwriters for
all their reasonable out-of-pocket expenses, as set forth in this Section 4,
including the reasonable fees and disbursements of counsel for the Underwriters
(such counsel's fees shall not exceed $75,000).
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters to purchase and pay for the Preferred
Securities that they have respectively agreed to purchase pursuant to this
Agreement are subject to the accuracy of the representations and warranties of
the Offerors contained herein or in certificates of the officers or trustees of
the Offerors or any subsidiary delivered pursuant to the provisions hereof, to
the performance by the Offerors of their obligations hereunder and to the
following further conditions:
15
(a) At the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the Underwriters' knowledge or the knowledge of the Offerors,
shall be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Underwriters. A prospectus shall have been filed
with the Commission in accordance with Rule 424(b).
(b) At the Closing Time, the Underwriters shall have
received:
(i) The favorable opinion, dated as of the
Closing Time, of Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx,
P.A., counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, substantially in the form
set forth in Exhibit A.
(ii) The favorable opinion, dated as of the
Closing Time, of Pitney, Xxxxxx, Xxxx & Xxxxx LLP, counsel for Xxxx
Xxxx, in form and substance reasonably satisfactory to counsel for the
Underwriters, substantially in the form set forth in Exhibit B.
(iii) The favorable opinion, dated as of the
Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware
counsel for the Offerors, in form and substance satisfactory to counsel
for the Underwriters, substantially in the form set forth in Exhibit C.
(iv) The favorable opinion, dated as of the
Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel for the
Indenture Trustee, in form and substance satisfactory to counsel for
the Underwriters, substantially in the form set forth in Exhibit D.
(v) The favorable opinion, dated as of the
Closing Time, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, in form and substance satisfactory to the Underwriters.
(c) At the Closing Time and again at the Option Closing
Date, (i) the Registration Statement and the Prospectus, as they may then be
amended or supplemented, shall contain all statements that are required to be
stated therein under the 1933 Act and the 1933 Act Regulations and in all
material respects shall conform to the requirements of the 1933 Act and the 1933
Act Regulations, and neither the Registration Statement nor the Prospectus, as
they may then be amended or supplemented, shall contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) there shall not
have been, since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition (financial
or otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (iii) no action, suit or proceeding
at law or in equity shall be pending or, to the knowledge of the Offerors,
threatened against the Company or any subsidiary or the Trust that would be
required to be set forth in the Prospectus other than as set forth therein, and
no
16
proceedings shall be pending or, to the knowledge of the Offerors, threatened
against the Offerors or any subsidiary of the Company before or by any federal,
state or other commission, board or administrative agency wherein an unfavorable
decision, ruling or finding could reasonably be expected to materially adversely
affect the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries, considered as
one enterprise, other than as set forth in the Prospectus, (iv) each of the
Offerors shall have complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Time or Option
Closing Date, as applicable, (v) the other representations and warranties of the
Offerors set forth in Section l(a) hereof shall be accurate in all material
respects as though expressly made at and as of the Closing Time or Option
Closing Date, as applicable, and (vi) no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceeding for that
purpose been initiated or to the best knowledge of the Offerors threatened by
the Commission. At the Closing Time, the Underwriters shall have received a
certificate of the Chairman of the Board or the President, and the Chief
Financial Officer or the Controller, of the Company, and the Administrative
Trustee of the Trust, dated as of the Closing Time, to such effect.
(d) At the time that this Agreement is executed by the
Company, the Underwriters shall have received from KPMG LLP a letter, dated such
date, in form and substance satisfactory to the Underwriters, confirming that
they are independent certified public accountants with respect to the Company
within the meaning of the 1933 Act and the published 1933 Act Regulations, and
stating in effect that with respect to the Company:
(i) in their opinion, the consolidated financial
statements as of December 31, 2001 and 2000 and for each of the years
in the three year period ended December 31, 2001 and the related
financial statements, if any, included or incorporated by reference in
the Registration Statement and the Prospectus and covered by their
opinions included therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
published 1933 Act Regulations;
(ii) on the basis of procedures (but not an audit
in accordance with generally accepted accounting standards) specified
by the American Institute of Certified Public Accountants for a review
of interim financial information as described in SAS No. 71, Interim
Financial Information, including a reading of the latest available
unaudited interim consolidated financial statements of the Company, a
reading of the minutes of all meetings of the stockholders of the
Company and the Bank, of the Board of Directors of the Company and the
Bank and of the Audit and Executive Committees of the Board of
Directors of the Bank since December 31, 2000, inquiries of certain
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 came to their attention that
caused them to believe that:
(A) the unaudited interim consolidated
financial information included or incorporated by reference in
the Prospectus, if any, do not comply as to form in all
material respects with applicable accounting requirements of
the 1933 Act, or are not presented in conformity with
generally accepted accounting principles applied on a
17
basis consistent with that of the audited financial statements
included in the Prospectus;
(B) at a specified date not more than
three business days prior to the date of this Agreement, there
was (a) any increase in notes or subordinated debentures
payable, advances from the Federal Home Loan Bank, real estate
owned, or allowance for loan losses of the Company and its
consolidated subsidiaries, (b) any decrease in total assets,
total deposits or stockholders' equity of the Company and its
consolidated subsidiaries or (c) any increase in the number of
outstanding shares of Class A Common Stock or Class B Common
Stock of the Company and its consolidated subsidiaries, in
each case as compared with amounts shown in the financial
statements at December 31, 2001 included in the Registration
Statement; or
(C) for the period from December 31,
2001 to a specified date not more than three business days
prior to the date of this Agreement, there was (a) any
decrease in consolidated net interest income, non-interest
income, net income or fully diluted per share amounts of net
income or (b) any increase in the consolidated provision for
loan losses or non-interest expense, in each case as compared
with the comparable period in the preceding year.
(iii) in addition to the procedures referred to in
clause (ii) above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the Registration
Statement (including the Selected Consolidated Financial Data) (having
compared such items with, and have found such items to be in agreement
with, the financial statements of the Company or general accounting
records of the Company, as applicable, which are subject to the
Company's internal accounting controls or other data and schedules
prepared by the Company from such records).
(e) At the Closing Time, the Underwriters shall have
received from KPMG LLP a letter, in form and substance satisfactory to the
Underwriters and dated as of the Closing Time, to the effect that they reaffirm
the statements made in the letter furnished pursuant to Section 5(d) hereof,
except that the inquiries specified in Section 5(d) hereof shall be made based
upon the latest available unaudited interim consolidated financial statements
and the specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(f) At the time that this Agreement is executed by the
Company, the Underwriters shall have received from Xxxxx Xxxxxx & Company LLP, a
letter, dated such date, in form and substance satisfactory to the Underwriters,
confirming that they are independent certified public accountants with respect
to Community within the meaning of the 1933 Act and the published 1933 Act
Regulations, and stating in effect that with respect to Community:
(i) in their opinion, the consolidated financial
statements as of December 31, 2000 and 1999 and for each of the years
in the three year period ended December 31, 2000 and the related
financial statements, if any, included or incorporated by reference in
the Registration Statement and the Prospectus and covered by their
opinions included
18
therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the published 1933 Act
Regulations;
(ii) on the basis of procedures (but not an audit
in accordance with generally accepted accounting standards) specified
by the American Institute of Certified Public Accountants for a review
of interim financial information as described in SAS No. 71, Interim
Financial Information, including a reading of the latest available
unaudited interim consolidated financial statements of Community, a
reading of the minutes of all meetings of the stockholders of
Community, of the Board of Directors of Community and of the Audit and
Executive Committees of the Board of Directors of Community since
December 31, 2000, inquiries of certain officials of the Community and
its subsidiaries responsible for financial and accounting matters, and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited interim consolidated
financial information included or incorporated by reference in
the Prospectus, if any, do not comply as to form in all
material respects with applicable accounting requirements of
the 1933 Act, or are not presented in conformity with
generally accepted accounting principles applied on a basis
consistent with that of the audited financial statements
included in the Prospectus;
(B) at a specified date not more than
three business days prior to the date of this Agreement, there
was any change in capital stock, increase in consolidated
long-term debt, or any decrease in consolidated shareholders'
equity of Community as compared with amounts shows in the
September 30, 2001 unaudited consolidated statement of
financial condition; or
(C) for the period from October 1, 2001
to a specified date not more than three business days prior to
the date of this Agreement, there was any decreases, as
compared with the corresponding period in the preceding year,
in consolidated net income or net income per common share or
diluted earnings per share.
(iii) in addition to the procedures referred to in
clause (ii) above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the Registration
Statement (having compared such items with, and have found such items
to be in agreement with, the financial statements of Community or
general accounting records of Community, as applicable, which are
subject to Community's internal accounting controls or other data and
schedules prepared by Community from such records).
(g) At the Closing Time, the Underwriters shall have
received from Xxxxx Xxxxxx & Company LLP a letter, in form and substance
satisfactory to the Underwriters and dated as of the Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
Section 5(f) hereof, except that the inquiries specified in Section 5(f) hereof
shall be made based upon the latest available unaudited interim consolidated
financial
19
statements and the specified date referred to shall be a date not more than
three business days prior to the Closing Time.
(h) At the Closing Time, counsel for the Underwriters
shall have been furnished with all such documents, certificates and opinions as
they may request for the purpose of enabling them to pass upon the issuance and
sale of the Preferred Securities, as contemplated in this Agreement and the
matters referred to in Section 5(c) hereof, in order to evidence the accuracy
and completeness of any of the representations, warranties or statements of the
Offerors, the performance of any of the covenants of the Offerors, or the
fulfillment of any of the conditions herein contained. All proceedings taken by
the Company at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Preferred Securities and the Junior
Subordinated Debentures as contemplated in this Agreement, the Trust Agreement,
the Guarantee Agreement, the Indenture and the Expense Agreement shall be
satisfactory in form and substance to the Underwriters and to counsel for the
Underwriters.
(i) Between the date of this Agreement and the Closing
Time, (i) no downgrading shall have occurred in the rating accorded any
securities of the Company or any deposit instruments of the Bank by any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g) (2) of the 1933 Act Regulations
and (ii) no such organization shall have given any notice of any intended or
potential downgrading or of any surveillance or review, with possible negative
implications, of its rating of any of the Company's securities or any deposit
instruments of the Bank.
(j) The Company shall have paid, or made arrangements
satisfactory to the Underwriters for the payment of, all such expenses as may be
required by Section 4 hereof.
(k) In the event the Underwriters exercise their option
provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the obligations of the several Underwriters to purchase the Option
Securities that they shall have respectively agreed to purchase shall be subject
to the accuracy of the representations and warranties of the Offerors contained
herein and of the statements in any certificates furnished by the Offerors
hereunder as of such Option Closing Date (as if made on such date), to the
performance by the Offerors of their obligations hereunder and to the receipt by
the Underwriters on the Option Closing Date of:
(1) A certificate, dated the Option Closing
Date, of the Chairman of the Board or the President and the
Chief Financial Officer or the Controller of the Company and
of the Administrative Trustee of the Trust confirming that the
certificate delivered on the Closing Time pursuant to Section
5(c) hereof remains true as of the Option Closing Date;
(2) The favorable opinion of Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., counsel for the
Company, addressed to the Underwriters and dated the Option
Closing Date, in form satisfactory to Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel to the Underwriters, relating to the Option
Securities and otherwise to the same effect as the opinion
required by Section 5(b)(i) hereof;
20
(3) The favorable opinion, dated as of the
Closing Time, Pitney, Xxxxxx, Xxxx & Xxxxx LLP, counsel for
Xxxx Xxxx, addressed to the Underwriters and dated the Option
Closing Date, in form satisfactory to Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters, relating to the Option
Securities and otherwise to the same effect as the opinion
required in Section 5(b)(ii) hereof.
(4) The favorable opinion of Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel for the Offerors and
counsel for the Indenture Trustee, addressed to the
Underwriters and dated the Option Closing Date, in form
satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the
Underwriters, relating to the Option Securities and otherwise
to the same effect as the opinion required by Section 5(b)(ii)
and (iii) hereof;
(5) The favorable opinion of Xxxxxxx Xxxxxxx &
Xxxxxxxx, dated the Option Closing Date, relating to the
Option Shares and otherwise to the same effect as the opinion
required by Section 5(b)(iv) hereof; and
(6) A letter from KPMG LLP addressed to the
Underwriters and dated the Option Closing Date, in form and
substance satisfactory to the Underwriters and substantially
the same in form and substance as the letters furnished to the
Underwriters pursuant to Section 5(e) hereof.
(7) A letter from Xxxxx Xxxxxx & Company LLP
addressed to the Underwriters and dated the Option Closing
Date, in form and substance satisfactory to the Underwriters
and substantially the same in form and substance as the
letters furnished to the Underwriters pursuant to Section 5(g)
hereof.
(l) The Preferred Securities, the Guarantee and the
Junior 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 Underwriters, and the offering contemplated by this Agreement
shall have been cleared by the NASD.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Underwriters on notice to the Offerors at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4 of
this Agreement. Notwithstanding any such termination, the provisions of Sections
4, 6, 7, 11 and 13 of this Agreement shall remain in effect.
Section 6. INDEMNIFICATION
(a) The Offerors jointly and severally agree to indemnify
and hold harmless each Underwriter, affiliate (as defined in Rule 405 of the
1933 Act), officer, director, employee, agent, controlling person, and counsel
of each Underwriter, from and against all losses, liabilities, claims, damages,
and expenses which shall include, but not be limited to amounts incurred in
investigating, preparing for or defending against any litigation, commenced or
threatened, or any claim or investigation whatsoever and any and all amounts
paid in settlement of any claim or
21
litigation, as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any Preliminary Prospectus, the Registration Statement, the Prospectus, or
any amendment or supplement thereto or in any document incorporated by reference
therein or required to be delivered with any Preliminary Prospectus or the
Prospectus or (B) in any application, other document or communication
(collectively called an "application") executed by or on behalf of the Company
or the Trust or based upon written information furnished by or on behalf of the
Company or the Trust filed in any jurisdiction in order to qualify the Preferred
Securities under the "blue sky" or securities laws thereof or filed with the
Commission, the NASD or any securities exchange, unless such statement or
omission or alleged statement or omission was made in reliance upon and in
conformity with written information concerning that Underwriter, this Agreement
or the compensation of that Underwriter furnished to the Offerors by or on
behalf of the Underwriters expressly for inclusion in any Preliminary
Prospectus, the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or in any application, as the case may be, or (ii) any
breach of any representation, warranty, covenant, or agreement of the Offerors
contained in this Agreement. The Offerors will not be liable to any indemnified
party under the foregoing indemnification and reimbursement provisions, (i) for
any settlement by an indemnified party effected without the Offerors' prior
written consent (not to be unreasonably withheld); or (ii) to the extent that
any loss, claim, damage or liability is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted primarily from
the Underwriters' willful misconduct or gross negligence. The foregoing
indemnification with respect to any Preliminary Prospectus shall not inure to
the benefit of the Underwriters if the person asserting any such losses, claims,
damages or liabilities purchased Preferred Securities and a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
the Underwriters to such person, if such is required by law, in connection with
the written confirmation of the sale of such Preferred Securities to such person
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability, provided, that the
Company delivered the Prospectus, as amended or supplemented, to the
Underwriters on a timely basis to permit such delivery or sending. For purposes
of this section, the term "expense" shall include, but not be limited to,
counsel fees and costs, court costs, out-of-pocket costs and compensation for
the time spent by any of the Underwriters' directors, officers, employees and
counsel according to his or her normal hourly billing rates. The foregoing
agreement to indemnify shall be in addition to any liability the Company may
otherwise have to the Underwriters or the persons entitled to the benefit of
these indemnification provisions.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless each of the Offerors, each of their directors or
trustees, each officer who signed the Registration Statement, against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) above, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, or any
amendment or supplement thereto or any application in reliance upon and in
conformity with written information about that Underwriter, this Agreement, or
the compensation of that Underwriter, furnished to either of the Offerors by
that Underwriter expressly for the inclusion in such Preliminary Prospectus, the
22
Registration Statement, the Prospectus, or any amendment or supplement thereto
or in any application. Notwithstanding the foregoing, the Offerors agree that no
Underwriter shall have any other liability (whether direct or indirect, in
contract or tort or otherwise) to the Offerors, their directors, trustees,
officers, security holders or creditors related to or arising out of the
engagement of the Underwriters' pursuant to, or the performance by the
Underwriters of the actions contemplated by this Agreement except to the extent
that any loss, claim, damage or liability is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted primarily from
the Underwriters' willful misconduct or gross negligence.
(c) Promptly after receipt by an indemnified party of
notice of any intention or threat to commence an action, suit, proceeding or
investigation, or notice of the commencement of any action, suit, proceeding or
investigation, such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party pursuant hereto, promptly notify the
indemnifying party in writing of the same. In case any such action is brought
against any indemnified party and such indemnified party notifies the
indemnifying party of the commencement thereof, the indemnifying party may elect
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and an indemnified party may employ counsel to participate in
the defense of any such action provided, that the employment of such counsel
shall be at the indemnified party's own expense, unless (i) the employment of
such counsel has been authorized in writing by the indemnifying party, (ii) the
indemnifying party has not in fact employed counsel reasonably satisfactory to
such indemnified party to assume the defense of such action within a reasonable
time after receiving notice of the action, suit, proceeding or investigation, or
(iii) such indemnified party has reasonably concluded (based upon advice of
counsel to the indemnified party) that there may be legal defenses available to
it or other indemnified parties that are different from or in addition to those
available to one or more of the indemnifying parties, or that a conflict or
potential conflict exists (based upon advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party that makes it
impossible or inadvisable for counsel to the indemnifying party to conduct the
defense of both the indemnifying party and the indemnified party, in each of
which cases the reasonable fees, disbursements and other charges of such counsel
will be at the expense of the indemnifying party and such indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party; provided, further, that in no event shall the indemnifying
party be required to pay fees and expenses for more than one firm of attorneys
representing indemnified parties unless the defense of the one indemnified party
is unique or separate from that of another indemnified party subject to the same
class or action. Any failure or delay by an indemnified party to give the notice
referred to in this paragraph shall not affect such indemnified party's right to
be indemnified hereunder, except to the extent that such failure or delay causes
actual harm to the indemnifying party, or prejudices its ability to defend such
action, suit, proceeding or investigation on behalf of such indemnified party.
(d) If the indemnification provided for in this Agreement
is for any reason held unenforceable by an indemnified party, the indemnifying
party agrees to contribute to the losses, liabilities, claims, damages and
expenses for which such indemnification is held unenforceable (i) in such
proportion as is appropriate to reflect the relative benefits to the Offerors,
on the one hand, and the Underwriters, on the other hand, from the Offering, or
(ii) if (but only if) the allocation provided by clause (i) is for any reason
unenforceable, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
23
relative fault of the Offerors, on the one hand, and the Underwriters, on the
other hand, as well as any other relevant equitable considerations. The Offerors
agree that for the purposes of this paragraph, the relative benefits to the
Offerors and the Underwriters from the Offering as contemplated shall be deemed
to be in the same proportion that the total value received or contemplated to be
received by the Offerors as a result of or in connection with the Offering bear
to the fees paid or to be paid to the Underwriters under this Agreement.
Notwithstanding the foregoing, the Offerors expressly agree that an Underwriter
shall not be obligated to contribute any amount hereunder that exceeds the
amount of the underwriting commission paid to such Underwriter with respect to
the Preferred Securities purchased by that Underwriter. No person found liable
for a fraudulent misrepresentation or omission shall be entitled to contribution
from any person who is not also found liable for such fraudulent
misrepresentation or omission.
(e) The Offerors agree that without an Underwriter's
consent, which shall not be unreasonably withheld, they 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 provisions of this Agreement (in which an Underwriter
or any other indemnified party is an actual or potential party to such claim,
action or proceeding), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding.
(f) If multiple claims are brought with respect to at
least one of which indemnification is permitted under applicable law and
provided for under this Agreement, the Offerors agree that any judgment award
shall be conclusively deemed to be based on claims as to which indemnification
is permitted and provided for, except to the extent the judgment award expressly
states that it, or any portion thereof, is based solely on a claim as to which
indemnification is not available.
(g) The indemnity and contribution agreements contained
herein are in addition to any liability which the Offerors may otherwise have to
the Underwriters.
(h) Neither termination nor completion of the engagement
of the Underwriters nor any investigation made by or on behalf of the
Underwriters shall affect the indemnification obligations of the Offerors or the
Underwriters hereunder, which shall remain and continue to be operative and in
full force and effect.
Section 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. The representations, warranties, indemnities, agreements and
other statements of the Offerors or their officers or trustees set forth in or
made pursuant to this Agreement will remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Offerors or
any Underwriter or any controlling person and will survive delivery of and
payment for the Preferred Securities.
Section 8. OFFERING BY THE UNDERWRITERS. The Offerors are
advised by the Underwriters 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 this Agreement has been executed and delivered. Because the NASD
is expected to view the Preferred Securities as interests in a direct
24
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.
Section 9. TERMINATION OF AGREEMENT.
(a) The Underwriters may terminate this Agreement, by
notice to the Offerors, at any time at or prior to the Closing Time (i) if there
has been, since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition (financial
or otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriters' judgment, impracticable to market the
Preferred Securities or enforce contracts for the sale of the Preferred
Securities or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the NASD, or if trading
generally on the New York Stock Exchange or in the over-the-counter market has
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by such exchange or
by order of the Commission, the NASD or any other governmental authority with
appropriate jurisdiction over such matters or (iv) if a banking moratorium has
been declared by either federal or Florida authorities or (v) if there shall
have been such material and substantial change in the market for securities in
general or in political, financial or economic conditions as in the
Underwriters' judgment makes it inadvisable to proceed with the offering, sale
and delivery of the Preferred Securities on the terms contemplated by the
Prospectus or (vi) if the Underwriters reasonably determine (which determination
shall be in good faith) that there has not been satisfactory disclosure of all
relevant financial information relating to the Offerors in the Offerors'
disclosure documents and that the sale of the Preferred Securities is
inadvisable given such disclosures.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party, except to the extent provided in Section 4 hereof. Notwithstanding any
such termination, the provisions of Sections 4, 6, 7, 11 and 13 hereof shall
remain in effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Initial Securities that it or they are obligated to purchase pursuant to this
Agreement (the "Defaulted Securities"), the non-defaulting Underwriters shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms set forth in this Agreement; if, however, the
non-defaulting Underwriters have not completed such arrangements within such
24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount of Initial
Securities, the non-defaulting Underwriters shall be obligated to purchase the
full amount thereof in the proportions that their respective
25
Initial Securities underwriting obligation proportions bear to the underwriting
obligations of all non-defaulting Underwriters; or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of Initial Securities,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either the non-defaulting Underwriters or the
Offerors shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
Section 11. NOTICES. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices shall be addressed as follows:
If to the Underwriters:
Xxxx, Xxxx & Co., LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Managing Director
with a copy to:
Xxx Xxxxxxxx
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to the Company or the Trust:
BankAtlantic Bancorp, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Chief Executive Officer
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
26
Section 12. PARTIES. This Agreement herein set forth is made
solely for the benefit of the Underwriters, their respective officers,
directors, employees, agents and counsel specified in Section 6 hereof, the
Trust and the Company and, to the extent expressed, any person controlling the
Trust, the Company or the Underwriters, and the directors of the Company, or
trustees of the Trust, their respective officers who have signed the
Registration Statement, and their respective executors, administrators,
successors and assigns and subject to the provisions of Section 10, no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include any purchaser, as such
purchaser, from the Underwriters of the Preferred Securities. All of the
obligations of the Underwriters hereunder are several and not joint.
Section 13. ARBITRATION. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any persons bound
hereby arising out of, or by virtue of, or in connection with, or otherwise
relating to this Agreement shall be submitted to and settled by arbitration
conducted in Miami, Florida before one or three arbitrators, each of whom shall
be knowledgeable in the field of securities law and investment banking. Such
arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding, and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
subject the award or decision of any such arbitrator to appeal or review in any
court of law or in equity or in any other tribunal, arbitration system or
otherwise. Judgment upon any award granted by such arbitrator may be enforced in
any court having jurisdiction thereof.
Section 14. GOVERNING LAW AND TIME. This Agreement shall be
governed by the laws of the State of New Jersey. Specified times of the day
refer to New York City time.
Section 15. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
27
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Trust and the
Underwriters in accordance with its terms.
Very truly yours,
BBC CAPITAL TRUST II
By:
--------------------------------------
Name:
Title: Administrative Trustee
BANKATLANTIC BANCORP, INC.
By:
--------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., LLC
By:
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
For itself and the other several
Underwriters named in Schedule A to the
foregoing Agreement.
SCHEDULE A
AMOUNT OF PERCENTAGE OF INITIAL
INITIAL SECURITIES SECURITIES
UNDERWRITER TO BE PURCHASED TO BE PURCHASED
---------------------------------------- ------------------ ---------------------
Xxxx, Xxxx & Co., LLC...................
Advest, Inc.............................
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated....
Xxxxxxxx Inc............................
TOTAL.............................
