Exhibit 1
Maximum of ______________ Shares of Common Stock
PATRIOT NATIONAL BANCORP, INC.
AGENCY AGREEMENT
____________ __, ▇▇▇▇
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ & Partners, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Patriot National Bancorp, Inc. a Connecticut corporation (the
"Company"), and Patriot National Bank, a national banking association (the
"Bank"), confirm their agreement with Sandler ▇'▇▇▇▇▇ & Partners, L.P. (the
"Agent") with respect to the offer and sale by the Company of up to
_____________ shares of its common stock, par value $2.00 per share (the "Common
Stock").
The Company is offering _____________ shares of Common Stock to the
holders of record of Common Stock (a "Record Date Holder") at the close of
business on ________ __, 2005 (the "Record Date"), at a subscription price of
$_____ per share (the "Subscription Price") and, subject to the rights of such
holders described below, to certain other purchasers on a standby basis. Each
Record Date Holder will receive one (1) non-transferable subscription right
("Rights") for every ____ (__) shares of Common Stock held of record at the
close of business on the Record Date. Each Right will enable the holder thereof
to purchase from the Company one share of Common Stock (an "Underlying Share")
at the Subscription Price (the "Basic Subscription Privilege"). Each Record Date
Holder who fully exercises their Basic Subscription Privilege also will be
eligible to subscribe at the Subscription Price for shares of Common Stock (the
"Excess Shares") not otherwise purchased pursuant to the exercise of the Basic
Subscription Privilege up to the total number of Underlying Shares, subject to
availability, proration, and reduction by the Company in certain circumstances
and, in all instances, a limit of _____ times the amount eligible for
subscription pursuant to the Basic Subscription Privilege (the "Oversubscription
Privilege"). The offer and sale of the Underlying Shares pursuant to the
exercise of the Basic Subscription Privilege and the Oversubscription Privilege
are referred to herein as the "Rights Offering."
The Company also intends to enter into Standby Purchase Agreements
pursuant to which an aggregate of __________ ( ) institutional investors and
high net worth individuals (the "Standby Purchasers") have severally agreed,
subject in each case to a maximum standby commitment and certain conditions, to
acquire from the Company at the Subscription Price up to an aggregate of
____________ of the Underlying Shares remaining upon completion of the Rights
Offering. The Standby Purchase Agreements will require that the Standby
Purchasers agree to purchase and the Company agrees to sell, and thus guarantee
the availability of, an aggregate minimum of __________ shares of Common Stock
("Additional Shares") at the
Subscription Price if a sufficient number of Underlying Shares are not available
after the exercise of the Basic Subscription Privilege and the Oversubscription
Privilege to satisfy the purchase commitments of the Standby Purchasers, subject
to reduction to a minimum of ___________ shares to the extent Record Date
Holders subscribe for all of the Rights granted to them (the "Minimum Standby
Obligation"). The Rights Offering and the offering to Standby Purchasers are
together referred to herein as the "Offering," and the Underlying Shares and the
Additional Shares are together referred to herein as the "Securities."
Record Date Holders may exercise subscription rights by delivering to
the subscription agent a properly completed and executed subscription rights
certificate together with payment in full of the subscription price for each
share subscribed for. Payment may be made only (i) by check or bank draft drawn
upon a U.S. bank, or postal, telegraphic or express money order payable to
Registrar and Transfer Company ("R&T") as subscription agent, or (ii) by wire
transfer of funds to R&T for the purpose of accepting subscriptions in
connection with the transactions contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (No. 333-_______) including
a prospectus for the registration of the Securities under the Securities Act of
1933, as amended (the "1933 Act"), has filed such amendments thereto, if any,
and such amended prospectuses as may have been required to the date hereof by
the Commission in order to declare such registration statement effective, and
will file such additional amendments thereto and such amended prospectuses and
prospectus supplements as may hereafter be required. Such registration statement
(as amended to date, if applicable, and as from time to time amended or
supplemented hereafter) and the prospectus constituting a part thereof
(including in each case all documents, if any, deemed to be part thereof
pursuant to the rules and regulations of the Commission under the 1933 Act, as
from time to time amended or supplemented pursuant to the 1933 Act or otherwise
(the "1933 Act Regulations")), are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively, except that if any revised
prospectus shall be used by the Company in connection with the Offering which
differs from the Prospectus on file with 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 Agent for such use.
Concurrently with the execution of this Agreement, the Company is
delivering to the Agent copies of the Prospectus to be used in the Offering.
Such Prospectus contains information with respect to the Company, the Bank and
the Common Stock.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company and the Bank jointly and severally represent
and warrant to the Agent as of the date hereof as follows:
(i) The Registration Statement has been declared
effective by the Commission, no stop order has been issued with respect thereto
and no proceedings therefor have been initiated or, to the knowledge of the
Company and the Bank, threatened by the Commission. At the time the Registration
Statement became effective and at the Closing Time referred to in Section 2
hereof, the Registration Statement complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will not contain an untrue statement of a material fact or omit to
state a material
2
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
The Prospectus, at the date hereof does not and at the Closing Time referred to
in Section 2 hereof 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
the Prospectus made in reliance upon and in conformity with information with
respect to the Agent furnished to the Company in writing by the Agent expressly
for use in the Registration Statement or the Prospectus (the "Agent
Information," which the Company and the Bank acknowledge appears only in the
section of the Prospectus captioned "The Rights Offering -- Financial Advisor.")
(ii) The Company will promptly file the Prospectus
and any supplemental sales literature with the Commission. The Prospectus and
all supplemental sales literature, as of the date the Registration Statement
became effective and at the Closing Time referred to in Section 2, complied and
will comply in all material respects with the applicable requirements of the
1933 Act Regulations and, at or prior to the time of their first use, will have
received all required authorizations of the Commission for use in final form.
(iii) No order, directive, request or other
correspondence has been received by the Company or the Bank from the Board of
Governors of the Federal Reserve System (the "FRB"), the Office of the
Comptroller of the Currency (the "OCC") or the Federal Deposit Insurance
Corporation (the "FDIC") which could have the effect of delaying or canceling
the Offering.
(iv) The accountants who audited the consolidated
financial statements and supporting schedules of the Company included in the
Registration Statement and the Prospectus are independent public accountants
within the meaning of the Code of Ethics of the American Institute of Certified
Public Accountants ("AICPA"); and such accountants are, with respect to the
Company and its wholly owned subsidiaries, the Bank and Patriot National
Statutory Trust I (the "Trust"), independent certified public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(v) The consolidated historical financial statements
of the Company, together with the related schedules and notes, included in the
Registration Statement and the Prospectus present fairly, in all material
respects, the respective consolidated statement of financial condition of the
Company and its consolidated subsidiaries at the respective dates indicated, and
the consolidated statements of income and cash flows of the Company and its
consolidated subsidiaries for the respective periods specified; said financial
statements have been prepared in conformity with generally accepted accounting
principles ("GAAP") in the United States applied on a consistent basis
throughout the periods involved, except as disclosed in the notes to such
financial statements; the supporting schedules included in the Registration
Statement and the Prospectus present fairly, in all material respects, the
information required to be stated therein, 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 transaction and circumstances referred to therein, and the summary
financial data included in the Registration Statement and the Prospectus present
fairly, in all material respects, the information shown therein and have been
compiled on a basis consistent with that of the
3
audited consolidated financial statements included in the Registration Statement
and the Prospectus.
(vi) Except as described in the Registration
Statement and the Prospectus, neither the Company nor any of its subsidiaries
has any material liability, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
whether disclosed on the face of the Company's consolidated statement of
financial condition or off balance sheet and whether due or to be come due,
including any liability for taxes (and there is no past or present, fact,
situation, circumstance, condition or other basis for any present or future
action, suit, proceeding, hearing, charge, complaint, claim or demand against
the Company or any of its subsidiaries giving rise to any such liability).
(vii) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has not been (A) any
material adverse change or any development (including any change in statutes or
regulations affecting the Company or any of its subsidiaries) which could
reasonably be expected to have a material adverse change, in the financial
condition or in the 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 (a "Material Adverse Effect"), or (B)
any transaction entered into by the Company or any of its subsidiaries, other
than in the ordinary course of business, that is material to the Company and its
subsidiaries considered as one enterprise.
(viii) Neither the Company nor any of its subsidiaries
is subject or is a party to, or has received any notice or advice that any of
them may become subject or a party to any investigation with respect to, any
cease-and-desist order, agreement, consent agreement, memorandum of
understanding or other regulatory enforcement action, proceeding or order with
or by, or is a party to any commitment letter or similar undertaking to, or is
subject to any directive by, or has been a recipient of any supervisory letter
from, or has adopted any board resolutions at the request of, any Regulatory
Agency (as defined below) that currently restricts in any material respect the
conduct of their business or that in any material manner relates to their
capital adequacy, their credit policies, their management or their business
(each, a "Regulatory Agreement"), nor has the Company or any of its subsidiaries
been advised by any Regulatory Agency that it is considering issuing or
requesting any such Regulatory Agreement; and there is no unresolved violation,
criticism or exception by any Regulatory Agency with respect to any report or
statement relating to any examinations of the Company or any of its subsidiaries
which, in the reasonable judgment of the Company, is expected to result in a
Material Adverse Effect. As used herein, the term "Regulatory Agency" means any
federal or state agency charged with the supervision or regulation of depositary
institutions, or holding companies of depositary institutions, or engaged in the
insurance of depository institution deposits, or any court, administrative
agency or commission or other governmental agency, authority or instrumentality
having supervisory or regulatory authority with respect to the Company or any of
its subsidiaries.
(ix) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Connecticut and has full power and authority under such laws to own, lease
and operate its properties and to conduct its business as now being conducted as
described in the Registration Statement and the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly registered
as a bank holding company under the Bank Holding Company
4
Act of 1956, as amended ("BHCA"); there are no subsidiaries of the Company other
than the Bank and the Trust and there are no subsidiaries of the Bank.
(x) The Bank has been duly organized and is validly
existing under the laws of the United States and has full power and authority
under such laws to own, lease and operate its properties and to conduct its
business as now being conducted as described in the Registration Statement and
the Prospectus and to enter into and perform its obligations under this
Agreement; and the Bank's deposit accounts are insured up to the applicable
limit by the Bank Insurance Fund of the FDIC to the fullest extent permitted by
law and the rules and regulations of the FDIC; and no proceeding for the
revocation or termination of such insurance is pending or, to the knowledge of
the Company and the Bank, threatened.
(xi) The Company and the Bank are each duly qualified
as a foreign corporation to transact business and are each 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 result in a Material
Adverse Effect.
(xii) The authorized capital stock of the Company
consists of 1,000,000 shares of preferred stock, no par value per share, none of
which was outstanding as of the date hereof, and 30,000,000 shares of Common
Stock, of which 2,486,391 shares were issued and outstanding as of the date
hereof; all of the issued and outstanding capital stock of the Company has been
duly authorized and validly issued and is fully paid and nonassessable; none of
the issued and outstanding capital stock of the Company was issued in violation
of any preemptive or similar rights arising by operation of law, under the
certificate of incorporation or bylaws of the Company or under any agreement to
which the Company is a party; except for: (a) the Rights, (b) options to acquire
____ shares of Common Stock pursuant to the Bank's 1999 Stock Option Plan which
has been assumed by the Company, and (c) the right of each holder of a share of
Common Stock to acquire 8.152 additional shares of Common Stock for each share
of Common Stock held, subject to the terms and conditions specified in the
Rights Agreement dated as of April 19, 2004 between the Company and R&T, as
Rights Agent (the "Shareholder Rights Plan"), there are no options, warrants,
calls, employee benefit or other plans, preemptive rights or commitments of any
character relating to the authorized but unissued capital stock or any other
equity security of the Company or any securities or obligations convertible into
or exchangeable for or giving any person any right to subscribe for or acquire
from the Company any shares of such capital stock.
(xiii) All of the issued and outstanding capital stock
of the Bank has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable right, and
none of the issued and outstanding capital stock of the Bank was issued in
violation of any preemptive or similar rights arising by operation of law, under
the articles of association or bylaws of the Bank or under any agreement to
which the Bank is a party.
(xiv) The Trust has been duly created and is validly
existing in good standing as a business trust under the laws of the State of
Connecticut with the power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified to transact business and is
in good standing in each jurisdiction in which such qualification is required,
whether by
5
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 result
in a Material Adverse Effect; the activities of the Trust are permitted to a
Connecticut chartered bank holding company by all applicable rules and
regulations; all of the issued and outstanding capital stock of the Trust has
been duly authorized and validly issued, is fully paid and nonassessable, and
the Trust's common securities are owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xv) Upon completion of the Offering, the authorized
equity capital of the Company will be within the range set forth in the
Prospectus under the caption "Capitalization." The shares of Common Stock to be
sold in the Offering have been duly and validly authorized for issuance and,
when issued and delivered by the Company against payment of the consideration
therefor, the shares of Common Stock will be duly and validly issued, fully paid
and non-assessable and will be free and clear of any security interest, pledge,
lien, encumbrance, claim or equity other than created by the purchaser thereof;
and the issuance of the shares of Common Stock will not be in violation of any
preemptive rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of Common Stock pursuant
to the Company's certificate of incorporation, bylaws or other governing
documents or any agreement, plan or other instrument to which the Company is
party or by which it is bound. The terms and provisions of the shares of Common
Stock conform and will conform in all material respects to the description
thereof contained in the Prospectus and the certificates representing the shares
of Common Stock will conform with the requirements of applicable laws and
regulations.
(xvi) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate action of the Company and the Bank,
and this Agreement has been duly executed and delivered by and is the valid and
binding agreement of the Company and the Bank enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency or other laws
affecting the enforceability of the rights of creditors generally and judicial
limitations on the right of specific performance and except as the
enforceability of indemnification and contribution provisions may be limited by
applicable securities laws.
(xvii) No approval of any regulatory or supervisory or
other public authority is required in connection with the execution and delivery
of this Agreement or the issuance of the Securities, except for the declaration
of effectiveness of any required post-effective amendment to the Registration
Statement by the Commission and as may be required under the securities laws of
various jurisdictions.
(xviii) Neither the Company nor any of its subsidiaries
is in violation of its respective certificate of incorporation, articles of
association or bylaws, except to the extent such violation, conflict, breach or
default would not adversely affect the transaction contemplated hereby or have a
Material Adverse Effect. The Company and each of its subsidiaries have conducted
and are conducting their business so as to comply in all material respects with
all applicable statutes, regulations and administrative and court decrees. None
of the Company or any subsidiary of the Company is in default in the performance
or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which it is a party or by which
it or any of them may be bound or to which any of its properties or assets is
subject (collectively, "Agreements and Instruments"), except for such defaults
under Agreements and Instruments that would not result in a Material Adverse
6
Effect; and the execution, delivery and performance of this Agreement by the
Company and the Bank, the issuance, sale and delivery of the Securities, the
consummation of the transaction contemplated by this Agreement, and compliance
by the Company and the Bank with the terms of this Agreement have been duly
authorized by all necessary corporate action on the part of the Company and the
Bank and do not and will not, whether with or without the giving of notice or
passage of time or both, violate, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the creation
or imposition of any, security interest, mortgage, pledge, lien, charge,
encumbrance, claim or equitable right upon any properties or assets of the
Company or any of its subsidiaries pursuant to, any of the Agreements and
Instruments, nor will such action result in any violation of the provisions of
the certificate of incorporation, articles of association, certificate of trust
or bylaws of the Company, the Bank or the Trust or any violation by any of them
of any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government authority, agency or instrumentality or
court, domestic or foreign, including, without limitation, the FRB, the OCC, and
the FDIC, having jurisdiction over the Company or any of its subsidiaries or
their respective properties or assets (collectively, "Governmental Entities"),
except to the extent such violation, conflict, breach or default would not
adversely affect the transactions contemplated hereby or have a Material Adverse
Effect. As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company
or any of its subsidiaries prior to its scheduled maturity.
(xix) No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company,
is imminent.
(xx) There is no action, suit, proceeding, inquiry or
investigation before or brought by any Governmental Entity, now pending or, to
the knowledge of the Company, threatened against or affecting the Company or any
of its subsidiaries, which is not disclosed in the Registration Statement and
the Prospectus and which, in the reasonable judgment of the Company, is expected
to result in a Material Adverse Effect, or which in the reasonable judgment of
the Company might materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated by this Agreement
or the performance by the Company of its obligations hereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective properties or assets
is the subject which are not described in the Registration Statement and the
Prospectus, including ordinary routine litigation incidental to the business,
are not, in the reasonable judgment of the Company, expected to result in a
Material Adverse Effect.
(xxi) Each of the Company and its subsidiaries
possesses such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate Governmental
Entities necessary to conduct the business now operated by them, and each of the
Company and its subsidiaries is in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure to so possess or to so
comply would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a Material
Adverse Effect; and none of the Company or any of its subsidiaries has received
any notice of proceedings relating to the
7
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, in the reasonable judgment of the Company, is expected to result
in a Material Adverse Effect.
(xxii) Each of the Company and its subsidiaries has
good and marketable title to all of their respective real and personal
properties, in each case free and clear of all liens, encumbrances and defects,
except such as would not result in a Material Adverse Effect; and all of the
leases and subleases under which the Company or any subsidiary holds properties,
are in full force and effect, except where the failure of such leases and
subleases to be in full force and effect individually or in the aggregate, would
not have a Material Adverse Effect, and none of the Company or any of its
subsidiaries has any notice of any claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any of its subsidiaries under any
of the leases or subleases mentioned above, or affecting or questioning the
rights of such entity to the continued possession of the leased or subleased
premises under any such lease or sublease, except for any such claim which,
singly or in the aggregate, in the reasonable judgment of the Company, is not
expected to result in a Material Adverse Effect.
(xxiii) Each of the Company and its subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") presently employed by them in
connection with the business now operated by them or reasonably necessary in
order to conduct such business, except to the extent the failure to so own,
possess or be able to obtain such Intellectual Property would not have a
Material Adverse Effect; 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 Intellectual Property or of
any facts or circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any of its subsidiaries
therein, which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, in the reasonable judgment of the Company, is likely to result in a
Material Adverse Effect.
(xxiv) The Company and each of its Subsidiaries has
filed all foreign, federal, state and local tax returns that are required to be
filed or has requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect) and has paid all
taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith or would not result in a Material Adverse Effect.
(xxv) The Company and each of its subsidiaries are
insured for reasonable amounts by insurance companies with an A.M. Best rating
of A- or better against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; all policies of
insurance and fidelity or surety bonds insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees, officers and
directors are in full force and effect in all material respects; the Company and
its subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; there are no claims by the Company or any
of its subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a
8
reservation of rights clause; neither the Company nor any of its subsidiaries
has been refused any insurance coverage sought or applied for; and neither the
Company nor any of its subsidiaries has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not result in a Material Adverse
Effect.
(xxvi) No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as such subsidiaries may
be limited by regulations issued by Regulatory Agencies of general
applicability.
(xxvii) The Company and each of its subsidiaries have
established and maintain adequate internal control over financial reporting and
such internal control over financial reporting has not been changed during the
Company's last fiscal quarter in any way that materially affected, or is
reasonably likely to materially affect, the Company's internal control over
financial reporting. The Company's auditors and the Audit Committee of the Board
of Directors have been advised of: (i) any known significant deficiencies in the
design or operation of internal controls which could adversely affect the
Company's ability to record, process, summarize, and report financial data and
(ii) any known fraud, whether or not material, that involves management or other
employees who have a role in the Company's internal controls; and such
deficiencies or fraud have either been disclosed in the Registration Statement
and the Prospectus or will not result in a Material Adverse Effect.
(xxviii) The Company and each of its subsidiaries (i) are
in compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received and are in compliance
with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not
received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals, or liability would not, individually or in the aggregate, result in a
Material Adverse Effect. Except as described in the Registration Statement and
the Prospectus, neither the Company nor any of the subsidiaries has been named
as a "potentially responsible party" under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
(xxix) Each of the Company and its subsidiaries has
fulfilled, in all material respects, its obligations, if any, under the minimum
funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and the regulations promulgated
thereunder with respect to each "plan" (as defined in Section 3(3) of ERISA and
the regulations thereunder), which is maintained by the Company and its
subsidiaries for their employees, and each such plan is in compliance in all
material respects with the presently applicable provisions of ERISA and the
regulations thereunder. The Company and its subsidiaries have not incurred any
unpaid liability under Title IV of ERISA to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary course) or
to any such plan.
9
(xxx) The Company has established and maintains
disclosure controls and procedures (as such term is defined in Rule 13a-15(e)
and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the "1934
Act")); and such disclosure controls and procedures are designed to ensure that
material information relating to the Company is made known to the Company's
Chief Executive Officer and its Chief Financial Officer by others within the
Company to allow timely decisions regarding disclosures.
(xxxi) The operations of the Company and the Bank are
and have been conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, also known as the
Bank Secrecy Act, the money laundering statues of all applicable jurisdictions,
the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any Governmental
Entity having jurisdiction over the Company or the Bank (collectively, the
"Money Laundering Laws") and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company or the Bank with respect to the Money Laundering Laws is pending or, to
the knowledge of the Company and the Bank, threatened. Neither the Company, the
Bank, nor, to the knowledge of the Company and the Bank, any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or the Bank has (A) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; (B) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee; (C) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; (D)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment; or (E) made any payment of funds to the Company or the Bank or received
or retained funds in violation of any law, rule or regulation.
(xxxii) Since January 1, 1999, the Company has timely
filed all reports, schedules, forms, statements and other documents required to
be filed by it with the Commission pursuant to the reporting requirements of the
1934 Act (all of the foregoing actually filed by the Company with the Commission
prior to the date hereof and all exhibits included therein and financial
statements and schedules thereto and documents incorporated by reference therein
are hereinafter referred to collectively as the "SEC Documents"). As of their
respective dates, the SEC Documents complied in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
applicable to the SEC Documents. None of the SEC Documents, at the time they
were filed with the Commission, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(xxxiii) To the knowledge of the Company and the Bank,
there are no affiliations or associations (as such terms are defined by the
National Association of Securities Dealers, Inc. ("NASD")) between any member of
the NASD and any of the Company's or the Bank's officers or directors.
(xxxiv) Neither the Company or the Bank has taken and
will not take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Securities.
(xxxv) The Company is not, and immediately following
the consummation of the transaction contemplate hereby and the application of
the use of the net
10
proceeds as described in the Registration Statement and the Prospectus, the
Company will not be, an investment company required to be registered under the
Investment Company Act of 1940, as amended.
(xxxvi) The Company has received approval, subject to
issuance, to have the Securities quoted on the Small Cap Market of the National
Association of Securities Dealers' Automated Quotation System ("Nasdaq Small Cap
Market") effective on the Closing Date.
(xxxvii) The statements set forth in the Prospectus under
the caption "Description of Capital Stock," insofar as they purport to
constitute a summary of the terms of the capital stock and options of the
Company and under the captions "Prospectus Summary," "Risk Factors," "The Rights
Offering," "Standby Purchase Agreements," "Management's Discussion and Analysis
of Financial Condition and Results of Operations, "Business," "Management" and
"Description of Capital Stock," insofar as they purport to describe the
provisions of the documents referred to therein, are accurate, complete and
fair.
(xxxviii) The Company has obtained agreements
substantially in the form included in Annex B hereto of the senior executive
officers of the Company named in the preliminary Prospectus included in the
Registration Statement and directors of the Company to the extent that such
officers and directors will not, subject only to the exceptions set forth
therein, sell, offer or agree to sell, hypothecate, contract to sell, grant any
option to sell or otherwise dispose of, directly or indirectly, or enter into
any agreement or arrangement that has the effect of transferring the economic
effects of holding, any shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock or warrants or other rights to
purchase Common Stock or any other securities of the Company that are
substantially similar to Common Stock or permit the registration under the 1933
Act of any shares of Common Stock for the period beginning from the Closing Date
set forth herein and continuing to and including the date 180 days after the
Closing Date (the "Lock-Up Period") without the prior written consent of the
Agent. Notwithstanding the foregoing, if: (1) during the last 17 days of the
Lock-Up Period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results
during the 16-day-period beginning on the last day of the Lock-Up Period, the
restrictions imposed herein shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
(b) Any certificate signed by any officer of the Company or
the Bank and delivered to either of the Agent or to counsel for the Agent shall
be deemed a representation and warranty by the Company or the Bank to each as to
the matters covered thereby.
SECTION 2. APPOINTMENT OF AGENT; SALE AND DELIVERY OF THE SECURITIES;
CLOSING.
On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company and the
Bank hereby appoint Sandler ▇'▇▇▇▇▇ & Partners, L.P. as its Agent to consult
with and advise the Company and the Bank regarding the structure of the
Offering, as well as to identify Standby Purchasers and assist the Company and
the Bank in negotiating Standby Purchase Agreements with the Standby Purchasers.
On the basis of the representations and warranties herein contained, and subject
to the terms and conditions herein set forth, the Agent accepts such appointment
and agrees to provide services to the Company as to the matters described below;
provided, however, that
11
the Agent shall not be obligated to sell any minimum number of shares of Common
Stock to any particular category of purchaser or in the aggregate or take any
action which is inconsistent with any applicable laws, regulations, decisions or
orders. The services to be rendered by the Agent pursuant to this appointment
include the following: (i) identifying prospective Standby Purchasers and
assisting in the negotiation of Standby Purchase Agreements with such Standby
Purchasers; (ii) assisting the Company's and the Bank's management in preparing
for meetings with existing shareholders and other potential investors in the
Offering; and (iii) providing such other general advice and assistance as may be
requested and agreed to by the Agent to promote the successful completion of the
Offering.
If at least the total minimum of Securities, as disclosed on the cover
of the Prospectus, are sold, the Company agrees to issue or have issued the
Securities sold and to release for delivery certificates for such Securities at
the Closing Time against payment therefor by release of funds from the
subscription agent referred to herein. The closing shall be held at the offices
of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP in Washington, D.C., at 10:00 a.m., Eastern Time, or at such
other place and time as shall be agreed upon by the parties hereto, on a
business day to be agreed upon by the parties hereto. The Company shall notify
the Agent by telephone, confirmed in writing, when funds shall have been
received for all the Securities. Certificates for Securities shall be delivered
directly to the purchasers thereof in accordance with their directions. The date
upon which the Company shall release for delivery all of the Securities, in
accordance with the terms hereof, is herein called the "Closing Date." The hour
on the Closing Date at which the Company shall release for delivery all of the
Securities in accordance with the terms hereof is called the "Closing Time."
Appropriate arrangements for placing the funds received from
subscriptions for Securities or other offers to purchase Securities were made by
the Company prior to the commencement of the Rights Offering, with provision for
refund to the purchasers as set forth in Section 9 hereof, or for delivery to
the Company if all Securities are sold. The Company shall not be deemed to have
received any subscription offer or exercise of a Right accompanied by a check or
comparable instrument until final payment has been made on such check or
instrument. Each subscriber will pay any stock issue and transfer taxes which
may be payable with respect to the sale of the Securities.
In addition to reimbursement of the expenses specified in Section 4
hereof, the Agent will receive the following compensation for its services
hereunder:
(a) one percent (1.00%) of the aggregate purchase price of the
Common Stock sold in the Offering pursuant to the exercise of the Rights by
directors, officers and employees of the Company ("Interested Parties");
(b) three percent (3.00 %) of the aggregate purchase price of
the Common Stock sold in the Offering pursuant to the exercise of Rights by
persons other than Interested Parties; and
(c) six and one half percent (6.50%) of the aggregate purchase
price of the Common Stock committed by Standby Purchasers pursuant to Standby
Purchase Agreements.
Notwithstanding anything to the contrary herein, the minimum fee to be
paid to the Agent hereunder shall not be less than $300,000. If this Agreement
is terminated by the Agent in accordance with the provisions of Section 9(a)
hereof or the Offering is terminated
12
by the Company, the Company shall reimburse Sandler ▇'▇▇▇▇▇ for all of its
reasonable out-of-pocket expenses incurred prior to termination, including the
reasonable fees and disbursements of counsel for the Agent, upon receipt by the
Company or the Bank of a written accounting therefor setting forth in reasonable
detail the expenses incurred by the Agent.
All fees payable to the Agent hereunder shall be payable in
immediately available funds at the Closing Time, or upon the termination of this
Agreement, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY.
The Company covenants with the Agent as follows:
(a) The Company will prepare and file such amendments or
supplements to the Registration Statement and the Prospectus as may hereafter be
required by the 1933 Act Regulations or as may hereafter be requested by the
Agent. The Company will notify the Agent immediately, and confirm the notice in
writing, (i) of the effectiveness of any post-effective amendment of the
Registration Statement or the filing of any supplement to the Prospectus, (ii)
of the receipt of any comments from the Commission with respect to the
transactions contemplated by this 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, (iv) of the receipt
of any order, directive, request or other correspondence from the applicable
regulatory agency with jurisdiction over the Company and the Bank relating to
the Offering, (v) 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, and (vi) of the receipt of any notice with respect
to the suspension of any qualification of the Securities for offering or sale in
any jurisdiction. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
withdrawal thereof at the earliest possible moment.
(b) The Company will give the Agent notice of its intention to
file or prepare any amendment to the 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 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 Agent
with copies of any such amendment or supplement 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 use any such prospectus to which the Agent or
counsel for the Agent shall object.
(c) The Company will deliver to the Agent as many signed
copies and as many conformed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) as the Agent may reasonably request, and from
time to time such number of copies of the Prospectus as the Agent may reasonably
request.
(d) During the period when the Prospectus is required to be
delivered, the Company will comply, at its own expense, with all requirements
imposed upon it by the Commission, as from time to time in force, and by the
1933 Act, the 1933 Act Regulations,
13
the 1934 Act and the rules and regulations of the Commission promulgated
thereunder, 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.
(e) If any event or circumstance shall occur as a result of
which it is necessary, in the opinion of counsel for the Agent, 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 the Prospectus (in form and
substance satisfactory to counsel for the Agent) 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 Agent a
reasonable number of copies of such amendment or supplement. For the purpose of
this subsection, the Company will furnish such information with respect to
itself as the Agent may from time to time reasonably request.
(f) The Company will take all necessary action, in cooperation
with the Agent, to qualify the Securities for offering and sale under the
applicable securities laws of such states of the United States and other
jurisdictions as the Agent and the Company have agreed; 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 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 six months from the effective date of the Registration
Statement.
(g) The Company authorizes the Agent to act as agent of the
Company in distributing the Prospectus to persons having record addresses in the
states or jurisdictions set forth in a survey of the securities or "blue sky"
laws of the various jurisdictions in which the Offering will be made (the "Blue
Sky Survey").
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 60 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) During the period of five years hereafter, the Company
will furnish to its stockholders as soon as practicable after the end of each
fiscal year an annual report (including statements of financial condition and
statements of income, stockholders' equity and cash flows of the Company, and
its consolidated subsidiaries, certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), consolidated summary financial information of
the Company, for such quarter in reasonable detail. In addition, such annual
report and quarterly consolidated summary financial information shall be made
public through the issuance of appropriate press releases at the same time or
prior to the time of the furnishing thereof to stockholders of the Company.
14
(j) During the period of five years hereafter, the Company
will furnish to the Agent (i) as soon as available, a copy of each report or
other document of the Company furnished generally to stockholders of the Company
or furnished to or filed with the Commission under the 1934 Act or any national
securities exchange or system on which any class of securities of the Company is
listed, and (ii) from time to time, such other information concerning the
Company as the Agent may reasonably request.
(k) 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."
(l) The Company will file all documents and notices required
by the Nasdaq Small Cap Market and will use its best efforts to maintain the
listing of the Common Stock on the Nasdaq Small Cap Market.
(m) The Company will take such actions and furnish such
information as are reasonably requested by the Agent in order for the Agent to
ensure compliance with Rule 2790 of the National Association of Securities
Dealers, Inc. in connection with the sale of the Securities.
(n) Other than the Prospectus or as permitted by applicable
law, the Company will not distribute any prospectus or other offering material
in connection with the offer and sale of the Securities and will not publish any
writing which constitutes an offer or prospectus.
(o) The Company will use all reasonable efforts to comply with
such requirements as may be necessary for the Agent or other brokerage firms to
make an active market for the shares of Common Stock.
(p) The Company will cause to be maintained records of all
funds submitted to R&T, as the Company's subscription agent, in connection with
the Offering, to enable the Company to make appropriate refunds of such funds in
the event that such refunds are required to be made. in accordance with the
Offering as described in the Prospectus.
(q) The Company shall not deliver the Securities until the
Company has satisfied or caused to be satisfied each condition set forth in
Section 5 hereof, unless such condition is waived by the Agent.
(r) Subsequent to the respective dates as to which information
in given in the Prospectus and prior to the Closing Date, except as otherwise
may be indicated or contemplated therein, the Company will not (i) issue any
securities, other than pursuant to the Company's existing stock option plans, or
incur any liability or obligation, direct or contingent, for borrowed money,
except borrowings from the same or similar sources indicated in the Prospectus
in the ordinary course of business, or (ii) enter into any transaction, other
than in the ordinary course of business which might result in a Material Adverse
Effect.
(s) During the Lock-Up Period, the Company will not sell,
offer or agree to sell, hypothecate, contract to sell, grant any option to sell
or otherwise dispose of, directly or indirectly, or enter into any agreement or
arrangement that has the effect of transferring the economic effects of holding,
any shares of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase
15
Common Stock or any other securities of the Company that are substantially
similar to Common Stock or permit the registration under the 1933 Act of any
shares of Common Stock, except for the registration of the Securities and the
sales contemplated pursuant to this Agreement and for prior commitments existing
on the date hereof as set forth in Section 1(a)(xii), without the prior consent
of the Agent.
SECTION 4. PAYMENT OF EXPENSES.
(a) The Company shall pay all expenses incident to the
performance of its obligations under this Agreement, including but not limited
to (i) the cost of obtaining all securities and any necessary regulatory
approvals, (ii) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (iii) the preparation, issuance
and delivery of the certificates for the Securities to the purchasers in the
Offering, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the fees and disbursements of counsel to the Agent in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Agent of copies of the Registration Statement
as originally filed and of each amendment thereto and the printing and delivery
of the Prospectus and any amendments or supplements thereto to the purchasers in
the Offerings and the Agent, (vii) the printing and delivery to the Agent of
copies of a Blue Sky Survey, (viii) the filing fees paid or incurred by the
Agent in connection with all filings with the National Association of Securities
Dealers, Inc. and (ix) the fees and expenses incurred in connection with the
listing of the Securities on the Nasdaq SmallCap Market. In the event the Agent
incurs any such fees and expenses on behalf of the Company, the Company will
reimburse the Agent for such fees and expenses whether or not the Offering is
consummated; provided, however, that the Agent shall not incur any substantial
expenses on behalf of the Company pursuant to this Section without the prior
approval of the Company (such approval not to be unreasonably withheld).
(b) In addition to the expenses to be borne by the Company
under paragraph (a) above, the Company shall reimburse the Agent, upon request
made from time to time, for its reasonable out-of-pocket expenses incurred in
connection with the transaction contemplated hereby, regardless of whether such
transactions are consummated, including, without limitation, legal fees and
disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Agent, marketing, syndication
and travel expenses.
SECTION 5. CONDITIONS OF AGENT'S OBLIGATIONS.
The Company and the Agent agree that the issuance and the sale of
Securities and all obligations of the Agent hereunder are subject to the
accuracy of the representations and warranties of the Company and the Bank
herein contained as of the date hereof and as of the Closing Date, to the
accuracy of the written statements of officers and directors of the Company made
pursuant to the provisions hereof, to the performance by the Company of their
obligations hereunder, and to the following further conditions:
(a) 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, no order suspending the sale
of the Securities in any jurisdiction shall have been issued, and no order,
directive, request or other correspondence
16
has been received by the Company or the Bank from the FRB, the OCC or the FDIC
which could have the effect of delaying or canceling the Offering.
(b) At the Closing Time, the Agent shall have received the
favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
counsel for the Company and the Bank, in form and substance reasonably
satisfactory to counsel for the Agent, and in substantially the form annexed
hereto as Annex A. Such counsel may state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company or any of its subsidiaries and
certificates of public officials.
(c) At the Closing Time, the Agent shall have received the
favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel
for the Agent, with respect to the incorporation and legal existence of the
Company, the issuance of the Securities, the disclosure in the Registration
Statement and the Prospectus and other related matters as the Agent may require.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company or any of its subsidiaries and public officials.
(d)(i) At the 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 Effect
and the Agent shall have received a certificate of each of the Chief Executive
Officer and President of each of the Company and the Bank, and the Chief
Financial Officer of the Company and the Bank, dated as of Closing Time, to the
effect that (i) there has been no such Material Adverse Effect, (ii) there shall
have been no material transaction entered into by the Company or any of its
subsidiaries from the date of the latest statement of financial condition of the
Company, as set forth in the Registration Statement and the Prospectus, other
than transactions referred to or contemplated therein and transactions in the
ordinary course of business, (iii) except as previously disclosed in the
Prospectus neither the Company nor any of its subsidiaries shall have received
from the FRB, the OCC or the FDIC any direction (oral or written) to make any
material change in the method of conducting its business with which it has not
complied (which direction, if any, shall have been disclosed to the Agent) or
which materially and adversely would affect the business, financial condition or
results of operations of the Company or any of its subsidiaries, (iv) the
representations and warranties in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of the Closing Time,
except as to any such representation or warranty which specifically relates to
an earlier date, (v) the Company and the Bank have complied with all agreements
and satisfied all conditions on their part to be performed or satisfied at or
prior to Closing Time, (vi) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission, and (vii) no order, directive,
request or other correspondence has been received by the Company or any of its
subsidiaries from the FRB, the OCC or the FDIC which could have the effect of
delaying or canceling the Offering.
(ii) At the Closing Time, the Agent shall have received a
certificate of each of the Chief Executive Officer and the President of each of
the Company and the Bank and the Chief Financial Officer of the Company and the
Bank dated as of Closing Time, to the effect that (i) they have reviewed the
contents of the Registration Statement and the Prospectus; (ii) based on each of
their knowledge, the Registration Statement and the Prospectus do not contain
any untrue statement of a material fact or omit to state a material
17
fact necessary in order to make the statements made therein, in light of the
circumstances under which such statements were made, not misleading; (iii) based
on each of their knowledge, the financial statements and other financial
information included in the Registration Statement and the Prospectus fairly
present in all material respects the financial condition and results of
operations of the Company and its subsidiaries as of and for the dates and
periods presented in the Registration Statement and the Prospectus; (iv) they
are responsible for establishing and maintaining disclosure controls and
procedures; (v) they have designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be designed under their
supervision, to ensure that material financial information relating to the
Company and its subsidiaries is made known to them; (vi) they have evaluated the
effectiveness of their disclosure controls and procedures; and (vii) they have
disclosed to McGladrey & ▇▇▇▇▇▇, LLP and the Audit Committee of the Company (A)
all significant deficiencies and material weaknesses in the design or operation
of internal control over financial reporting which are reasonably likely to
adversely affect the Company's and the Bank's ability to record, process,
summarize, and report financial data, and (B) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company's and the Bank's internal control over financial reporting,
and any such deficiencies or fraud have either been disclosed in the
Registration Statement and the Prospectus or are not material to the Company and
its subsidiaries taken as a whole.
(e) At the time of the execution of this Agreement, the Agent
shall have received from McGladrey & ▇▇▇▇▇▇, LLP, a letter dated such date, in
form and substance satisfactory to the Agent, to the effect that (i) they are
independent certified public accountants with respect to the Company and its
subsidiaries within the meaning of the Code of Ethics of the AICPA, the 1933 Act
and the 1933 Act Regulations; (ii) it is their opinion that the consolidated
financial statements and supporting schedules included in the Registration
Statement and covered by their opinion therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations; (iii) based upon limited procedures as agreed upon by the
Agent and McGladrey & ▇▇▇▇▇▇, LLP, and set forth in detail in such letter,
nothing has come to their attention which causes them to believe that (A) the
unaudited financial statements and supporting schedules of the Company included
in the Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations or are not presented in conformity with GAAP applied on a basis
substantially consistent with that of the audited financial statements included
in the Registration Statement and the Prospectus, (B) at a specified date not
more than five days prior to the date of this Agreement, there has been any
increase in the consolidated available for sale investment securities or total
borrowings of the Company or any decrease in consolidated total assets,
allowance for loan losses, total deposits or shareholders' equity of the
Company, in each case as compared with the amounts shown in the December 31,
2004 balance sheet included in the Registration Statement or, (C) during the
period from December 31, 2004 to a specified date not more than five days prior
to the date of this Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in total interest income, net
interest income, net interest income after provision for loan losses, income
before income tax expense or net income of the Company, except in all instances,
for increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur; and (iv) in addition to the examination
referred to in their opinions 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
18
and financial information which are included in the Registration Statement and
Prospectus and which are specified by the Agent, 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
identified in such letter.
(f) At the Closing Time, the Agent shall have received from
McGladrey & ▇▇▇▇▇▇, LLP a letter, dated as of Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to subsection
(e) of this Section, except that the specified date referred to shall be a date
not more than five days prior to Closing Time.
(g) At the Closing Time, counsel for the Agent 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 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 Agent and counsel for the
Agent.
(h) The Agent shall have received Lock-up Agreements, dated as
of the Closing Date, from all of the Company's executive officers and directors,
in the form and to the effect contemplated in Section 1(xxxviii).
(i) At any time prior to Closing Time, (i) there shall not
have occurred any material adverse change in the financial markets in the United
States or elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis the effects of which, in the judgment of the Agent, are
so material and adverse as to make it impracticable to market the Securities or
to enforce contracts, including subscriptions or orders, for the sale of the
Securities, and (ii) trading generally on either the New York Stock Exchange or
NASDAQ shall not have been suspended, and minimum or maximum prices for trading
shall not have been fixed, or maximum ranges for prices for securities have been
required, by either the New York Stock Exchange, the NASD or by order of the
Commission or any other governmental authority, and a banking moratorium shall
not have been declared by Federal, New York or Connecticut authorities.
(j) 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 Agent by notice to the Company and the Bank 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 hereof and except
that Section 6 and 7 hereof shall survive any such termination and remain in
full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF AGENT. The Company and the Bank agree
to jointly and severally indemnify and hold harmless: (x) the Agent; (y) each
person, if any, who controls (within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act) the Agent (each such person, a "controlling
person"); and (z) the respective partners, directors, officers, employees and
agents of the Agent or any such controlling person as follows:
(i) against any and all loss, liability, claim,
damages and expense whatsoever, as incurred, relating to or arising out of, or
based upon, in whole or in part, (A)
19
any action taken by the Agent where acting as agent of the Company and the Bank
or as otherwise described in Section 2 hereof, (B) any untrue statement or
alleged untrue statement of a material fact included in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, 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 untrue statement or alleged untrue statement
of material fact contained in any information or documents executed in favor of
or furnished or made available to the Agent by the Company and the Bank; (D) any
omission or alleged omission to state in any information or documents executed
in favor of or furnished or made available to the Agent by the Company and the
Bank a material fact necessary to make the statements therein not misleading; or
(E) the breach or alleged breach of any representation, warranty and agreement
of the Company and the Bank contained herein;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, or breach or alleged breach of any such
representation, warranty or agreement; provided that (subject to Section 6(d)
hereof) any such settlement is effected with the written consent of the Company
and the Bank; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by the Agent),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
or breach or alleged breach of any such representation, warranty or agreement,
to the extent that any such expense is not paid under (1) or (2) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with the Agent's Information.
Notwithstanding the foregoing, the indemnification provided for in
this paragraph (a) shall not apply to the Bank to the extent that such
indemnification by the Bank is found in a final, non-appealable judgment by a
court of competent jurisdiction to constitute a violation of any financial
institution law or regulation applicable to national banks and the Bank,
including if such indemnification is so found to constitute a covered
transaction under 23A of the Federal Reserve Act.
(b) INDEMNIFICATION OF OFFERORS, DIRECTORS, OFFICERS AND
EMPLOYEES. The Agent agrees to indemnify and hold harmless the Company and the
Bank, their directors, officers and employees, and each person, if any, who
controls the Company, or the Bank within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 6(a) above,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in conformity with the Agent's Information.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action
20
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof, and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by the Agent, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company and the Bank. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for 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. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at
any time an indemnified party shall have validly requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(2) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances under which the indemnification provided for in Section 6 hereof
is for any reason held to be unenforceable by an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Bank, on the one hand, and the Agent,
on the other hand, from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Bank, on the one hand, and the Agent, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
21
In order to determine the relative benefits received by the Company
and the Bank, on the one hand, and the Agent, on the other hand, the parties
hereto agree that in connection with the offering of the Securities pursuant to
this Agreement, the Agent shall be responsible for that portion represented by
the percentage that the maximum aggregate marketing fees appearing on the cover
page of the Prospectus bears to the maximum aggregate gross proceeds appearing
thereon and the Company and the Bank are responsible for the balance.
The relative fault of the Company and the Bank, on the one hand, and
the Agent, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statements of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company and the Bank or by the Agent and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Bank and the Agent agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Agent shall not
be required to contribute any amount in excess of the aggregate marketing fees
to which the Agent is entitled and actually paid pursuant to this Agreement
received pursuant to Section 2 of this Agreement.
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 7, each person, if any, who controls the
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act and the respective partners, directors, officers, employees and agents of
such Agent or any such controlling person shall have the same rights to
contribution as the Agent, while each officer and director of the Company and
the Bank, and each person, if any, who controls the Company and the Bank within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company and the Bank.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company and the Bank
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Agent or controlling
person, or by or on behalf of the Company and the Bank, and shall survive
delivery of the Securities to the Purchasers thereof.
22
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Agent may terminate this Agreement, by notice to the
Company and the Bank, at any time at or prior to Closing Time (i) if there has
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 Effect;
(ii) if there has occurred any material adverse change in the financial markets
in the United States or elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effects of which, in the judgment of the
Agent, are so material and adverse as to make it impracticable to market the
Securities or to enforce contracts, including subscriptions or orders, for the
sale of the Securities; (iii) if trading generally on either the New York Stock
Exchange or the NASDAQ has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either the New York Stock Exchange, the NASD 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; (iv) if
any condition specified in Section 5 (other than Section 5(b)) shall not have
been fulfilled when and as required to be fulfilled; (v) if there shall have
been such material adverse change in the condition or prospects of the Company
or the Bank or the prospective market for the Company's securities as in the
Agent's good faith opinion would make it inadvisable to proceed with the
offering, sale or delivery of the Securities; or (vi) if the Company is unable
to sell at least the total minimum of Securities, as disclosed on the cover of
the Prospectus, or if the Offering is not consummated for any other reason,
prior to ___________, 2005.
(b) If this Agreement is terminated pursuant to this Section,
the Company shall notify the subscription agent who shall refund to any persons
who have subscribed for any of the Securities the full amount which it may have
received from them, without interest, as provided in the Prospectus, such
termination shall be without liability of any party to any other party except
that the provisions of Section 4 hereof relating to reimbursement of expenses
and the provisions of Sections 6 and 7 hereof shall survive any termination of
this Agreement.
SECTION 10. 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 Agent shall be directed to the Agent
as follows: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇, LLP, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇., Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.;
notices to the Company and the Bank shall be directed to the Company at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇ ▇▇▇▇,
Chairman and Chief Executive Officer, with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
185 Asylum Avenue, City Place, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, Esq. and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
SECTION 11. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agent, the Company, the Bank and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Agent, the Company, the Bank and
their respective successors and the controlling
23
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein or therein
contained. This Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the Agent, the Company,
the Bank and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. COUNTERPARTS; FACSIMILE.
This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, and signature pages may be
delivered by facsimile, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 13. SEVERABILITY.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
SECTION 14. GOVERNING LAW; JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
EACH OF THE COMPANY AND THE BANK, ON BEHALF OF ITSELF AND ITS
SUBSIDIARIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION
WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE
MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE
COMPANY AND THE BANK, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
24
SECTION 15. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 16. ENTIRE AGREEMENT.
This Agreement represents the entire understanding of the parties
hereto with reference to the transactions contemplated hereby and supersedes any
and all other oral or written agreements heretofore made.
SECTION 17. HEADINGS.
Sections headings are not to be considered part of this Agreement, are
for convenience and reference only, and are not to be deemed to be full or
accurate descriptions of the contents of any paragraph or subparagraph.
25
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 Agent, the Company and the Bank in accordance with its terms.
Very truly yours,
PATRIOT NATIONAL BANCORP, INC.
By:
----------------------
Name: ▇▇▇▇▇▇ ▇▇ ▇▇▇▇
Title: Chairman and Chief Executive Officer
PATRIOT NATIONAL BANK
By:
----------------------
Name: ▇▇▇▇▇▇ ▇▇ ▇▇▇▇
Title: Chairman
CONFIRMED AND ACCEPTED,
as of the date first above written:
Sandler ▇'▇▇▇▇▇ & Partners, L.P.
By: Sandler ▇'▇▇▇▇▇ & Partners Corp., the sole
general partner
By:
----------------------
Name:
Title
26
ANNEX A
Pursuant to Section 5(a) of the Agency Agreement, counsel for the Company
and the Bank shall deliver an opinion in substantially the following form:
(i) The Registration Statement has been declared effective by the
Commission and, to the knowledge of such counsel, no stop order has been issued
with respect thereto and no proceedings therefor have been initiated or
threatened by the Commission. At the time the Registration Statement became
effective and at the Closing Time, the Registration Statement complied in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(ii) The Company has been duly organized and is validly existing as a
corporation under the laws of the State of Connecticut and has full power and
authority under such laws to own, lease and operate its properties and to
conduct its business as now being conducted as described in the Registration
Statement and the Prospectus and to enter into and perform its obligations under
the Agreement; and the Company is duly registered as a bank holding company
under the BHCA; there are no subsidiaries of the Company other than the Bank and
the Trust and there are no subsidiaries of the Bank.
(iii) The Bank has been duly organized and is validly existing under the
laws of the United States and has full power and authority under such laws to
own, lease and operate its properties and to conduct its business as now being
conducted as described in the Registration Statement and the Prospectus and to
enter into and perform its obligations under the Agreement; and the Bank's
deposit accounts are insured up to the applicable limit by the Bank Insurance
Fund of the FDIC to the fullest extent permitted by law and the rules and
regulations of the FDIC.
(iv) The Company and the Bank are each duly qualified as a foreign
corporation to transact business and are each 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 would not result in a Material Adverse Effect.
(v) All of the issued and outstanding capital stock of the Company has
been duly authorized and validly issued and is fully paid and nonassessable;
none of the issued and outstanding capital stock of the Company was issued in
violation of any preemptive or similar rights arising by operation of law, under
the certificate of incorporation or bylaws of the Company or, to such counsel's
knowledge after due inquiry, under any agreement to which the Company is a
party.
(vi) All of the issued and outstanding capital stock of the Bank has
been duly authorized and validly issued, is fully paid and nonassessable and is
owned by the Company, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right, and none of the issued and
outstanding capital stock of the Bank was issued in violation of any preemptive
or similar rights arising by operation of law, under the articles of association
or bylaws of the Bank or, to such counsel's knowledge after due inquiry, under
any agreement to which the Bank is a party.
(vii) The Trust has been duly created and is validly existing as a
business trust under the laws of the State of Connecticut with the power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the
A - 1
Prospectus, and is duly qualified 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 result in a Material
Adverse Effect; the activities of the Trust are permitted to a Connecticut
chartered bank holding company by all applicable rules and regulations; all of
the issued and outstanding capital stock of the Trust has been duly authorized
and validly issued, is fully paid and nonassessable, and the Trust's common
securities are owned by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(viii) Based on such counsel's review of the Company's records, the
authorized, issued and outstanding capital stock of the Company at the date
indicated is as set forth in the Prospectus under "Capitalization," and there
have not been any subsequent issuances of capital stock of the Company; upon
completion of the Offering, the authorized equity capital of the Company will be
within the range set forth in the Prospectus under the caption "Capitalization."
The shares of Common Stock to be sold in the Offering have been duly and validly
authorized for issuance and, when issued and delivered by the Company against
payment of the consideration therefor, the shares of Common Stock will be duly
and validly issued, fully paid and non-assessable and will be free and clear of
any security interest, pledge, lien, encumbrance, claim or equity other than
created by the purchaser thereof; and the issuance of the shares of Common Stock
will not be in violation of any preemptive rights or other rights to subscribe
for or to purchase, or any restriction upon the voting or transfer of, any
shares of Common Stock pursuant to the Company's certificate of incorporation,
bylaws or other governing documents or, to such counsel's knowledge after due
inquiry, any agreement, plan or other instrument to which the Company is party
or by which it is bound. The terms and provisions of the shares of Common Stock
conform in all material respects to the description thereof contained in the
Prospectus and the certificates representing the shares of Common Stock conform
with the requirements of applicable laws and regulations.
(ix) The execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated herein have been duly authorized
by all necessary corporate action of the Company and the Bank, and the Agreement
has been duly executed and delivered by and is the valid and binding agreement
of the Company and the Bank enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency or other laws affecting the
enforceability of the rights of creditors generally and judicial limitations on
the right of specific performance and except as the enforceability of
indemnification and contribution provisions may be limited by applicable
securities laws.
(x) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and delivery of the
Agreement for the issuance of the Securities, except for the declaration of
effectiveness of any required post-effective amendment to the Registration
Statement by the Commission and as may be required under the securities laws of
various jurisdictions.
(xi) To the knowledge of such counsel, neither the Company nor any of
its subsidiaries is in violation of its respective certificate of incorporation,
articles of association, certificate of trust or bylaws, except to the extent
such violation, conflict, breach or default would not adversely affect the
transaction contemplated hereby or have a Material Adverse Effect. To the
knowledge of such counsel, the Company and each of its subsidiaries are in
compliance in all material respects with all applicable statutes, regulations
and administrative and court decrees. To the knowledge of such counsel, none of
the Company or any subsidiary of the Company is in default in the performance or
observance of any obligation, agreement,
B - 2
covenant or condition contained in any Agreements and Instruments, except for
such defaults under Agreements and Instruments that would not result in a
Material Adverse Effect; and the execution, delivery and performance of this
Agreement by the Company and the Bank, the issuance, sale and delivery of the
Securities, the consummation of the transaction contemplated by this Agreement,
and compliance by the Company and the Bank with the terms of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Company and the Bank and do not and will not, whether with or without the giving
of notice or passage of time or both, violate, conflict with or constitute a
breach of, or default or Repayment Event under, or result in the creation or
imposition of any, security interest, mortgage, pledge, lien, charge,
encumbrance, claim or equitable right upon any properties or assets of the
Company or any of its subsidiaries pursuant to, any of the Agreements and
Instruments, except to the extent such violation, conflict, breach or default
would not adversely affect the transactions contemplated hereby or have a
Material Adverse Effect, nor will such action result in any violation of the
provisions of the certificate of incorporation, articles of association,
certificate of trust or bylaws of the Company, the Bank or the Trust or any
violation by any of them of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any Governmental Entities, except to the
extent such violation, conflict, breach or default would not adversely affect
the transactions contemplated hereby or have a Material Adverse Effect.
(xii) There is no action, suit, proceeding, inquiry or investigation
before or brought by any Governmental Entity, now pending or, to the knowledge
of such counsel, threatened against or affecting the Company or any of its
subsidiaries, that is required to be disclosed in the Registration Statement and
the Prospectus and which is not disclosed therein, or that could result in a
Material Adverse Effect, or which could adversely affect the transactions
contemplated by this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or of
which any of their respective properties or assets is the subject which are not
described in the Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, are not expected to result in a
Material Adverse Effect.
(xiii) Each of the Company and its subsidiaries possesses such
Governmental Licenses issued by the appropriate Governmental Entities necessary
to conduct the business now operated by them, and each of the Company and its
subsidiaries is in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure to so possess or to so comply
would not, singly or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse
Effect; and none of the Company or any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, is expected to result
in a Material Adverse Effect.
(xiv) Each of the Company and its subsidiaries has good and marketable
title to all of their respective real and personal properties, in each case free
and clear of all liens, encumbrances and defects, except such as would not
result in a Material Adverse Effect; and all of the leases and subleases under
which the Company or any subsidiary holds properties, are in full force and
effect, except where the failure of such leases and subleases to be in full
force and effect individually or in the aggregate, would not have a Material
Adverse Effect, and none of the Company or any of its subsidiaries has any
notice of any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any of its subsidiaries under any of
B - 3
the leases or subleases mentioned above, or affecting or questioning the rights
of such entity to the continued possession of the leased or subleased premises
under any such lease or sublease, except for any such claim which, singly or in
the aggregate, in the reasonable judgment of the Company, is not expected to
result in a Material Adverse Effect.
(xv) The Company is not, and immediately following the consummation of
the transaction contemplate hereby and the application of the use of the net
proceeds as described in the Registration Statement and the Prospectus, the
Company will not be, an investment company required to be registered under the
Investment Company Act of 1940, as amended.
(xvi) The Company has received approval, subject to issuance, to have the
Securities quoted on the Nasdaq Small Cap Market effective on the Closing Date.
(xvii) The statements set forth in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute a summary
of the terms of the capital stock and options or rights of the Company and under
the captions "Prospectus Summary," "Risk Factors," "Certain Federal Income Tax
Consequences," "The Rights Offering," "Standby Purchase Agreements,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations, "Business," "Management" and "Description of Capital Stock," insofar
as they purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair.
(xiii) To the best of such counsel's knowledge, there are no 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 as exhibits thereto other than those described or referred to therein or
filed as exhibits thereto and the descriptions thereof or references thereto are
correct.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and representatives of the Company, representatives of
the independent public accountants for the Company and the Agent at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed and, although such counsel is not passing upon and does not
assume any responsibility for and has not verified the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus, and has not made any independent check or verification thereof, on
the basis of the foregoing, no facts have come to the attention of such counsel
that lead such counsel to believe that either the Registration Statement at the
time it became effective, or any amendment thereof made prior to the Closing
Time, as of the date of such amendment, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus as of its date (or any amendment thereof or supplement thereto made
prior to the Closing Time, as of the date of such amendment or supplement) and
as of the Closing Time contained or contains an untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no belief or opinion with respect to the exhibits
and the financial statements and other financial and statistical data included
herein).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such
B - 4
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Agent's counsel) of other counsel reasonably
acceptable to Agent's counsel, familiar with the applicable laws; (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and the Bank and certificates or other written
statements of officers of departments of various jurisdictions having custody of
documents respecting the corporate existence or good standing of the Company and
its subsidiaries, provided that copies of any such statements or certificates
shall be delivered to Agent's counsel. The opinion of such counsel for the
Company shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in their opinion, the Agent and they are
justified in relying thereon.
B - 5
ANNEX B
FORM OF LOCK-UP AGREEMENT
_________ __, ▇▇▇▇
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ & Partners, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned [director][officer] of Patriot National Bancorp, Inc., a
Connecticut corporation (the "Company"), understands that the Company is
offering up to ______ shares of its common stock, $2.00 par value per share (the
"Common Stock"), to the holders of record at the close of business on _____ 2005
in a rights offering (the "Offering"). The Company also intends to enter into
Standby Purchase Agreements with certain investors to acquire up to ________ of
the shares offered, and will guarantee the availability of an aggregate minimum
of ___ shares to such investors. The aggregate shares of common stock to be
offered is referred to herein as the "Securities," with the specific details of
the transaction subject to the terms and conditions stated in the Agency
Agreement (the "Agency Agreement") to be entered into by the Company and Sandler
▇'▇▇▇▇▇ & Partners L.P. (the "Agent").
The undersigned, to facilitate the marketing of the Securities and in
consideration of the Company and the Agent entering into the Agency Agreement,
hereby irrevocably confirms and agrees for the benefit of the Company and the
Agent that during the period beginning from the date hereof and continuing to
and including the date 180 days after the Closing Date (as such term is defined
in the Agency Agreement) (the "Lock-Up Period"), the undersigned will not sell,
offer, agree to sell, contract to sell, hypothecate, pledge, grant any option to
purchase, make any short sale or otherwise dispose of or hedge, directly or
indirectly, any shares of Common Stock or securities convertible into,
exchangeable or exercisable for any shares of Common Stock or warrants or other
rights to purchase shares of Common Stock or any other securities of the Company
that are substantially similar to the Common Stock, whether now owned or
hereafter acquired, owned directly by the undersigned (including holding as a
custodian) or with respect to which the undersigned has or may be deemed to have
beneficial ownership in accordance with the rules and regulations of the
Securities and Exchange Commission (collectively, the "UNDERSIGNED'S SHARES") or
publicly announce an intention to do any of the foregoing.
The foregoing restriction is expressly agreed to preclude the undersigned
from engaging in any hedging or other transaction or arrangement that is
designed to, or which reasonably could be expected to, lead to or result in a
sale, disposition or transfer, in whole or in part, of any of the economic
consequences of ownership of the Undersigned's Shares, whether any such
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise, even if such shares would be disposed of by someone other
than the undersigned. Such prohibited hedging or other transactions would
include, without limitation, any short sale or any purchase, sale or grant of
any right (including, without limitation, any put or call option) with respect
to any of the Undersigned's Shares or with
B - 1
respect to any security that includes, relates to, or derives any significant
part of its value from the Undersigned's Shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a BONA FIDE gift or gifts, provided that the donee
or donees thereof agree to be bound in writing by the restrictions set forth
herein, (ii) to any trust for the direct or indirect benefit of the undersigned
or the immediate family of the undersigned, provided that the trustee of the
trust agrees to be bound in writing by the restrictions set forth herein, and
provided further that any such transfer shall not involve a disposition for
value, or (iii) with the prior written consent of Agent. For purposes of this
Agreement, "immediate family" shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin. The undersigned now has and, except
as contemplated by clause (i), (ii) or (iii) above, for the duration of this
Agreement will have, good and marketable title to the Undersigned's Shares, free
and clear of all liens, encumbrances, and claims whatsoever. The undersigned
also agrees and consents to the entry of stop transfer instructions with the
Company and its transfer agent and registrar against the transfer of the
Undersigned's Shares, except in compliance with the foregoing restrictions. In
furtherance of the foregoing, the Company is hereby authorized to decline to
make or authorize any transfer of securities if such transfer would constitute a
violation or breach of this Lock-Up Agreement (this "AGREEMENT").
Notwithstanding the foregoing, if: (1) during the last 17 days of the
Lock-Up Period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results
during the 16-day-period beginning on the last day of the Lock-Up Period, the
restrictions imposed by this letter shall continue to apply until the expiration
of the 18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
The undersigned understands that the Company and the Agent are relying upon
this Agreement in proceeding toward consummation of the Offering. The
undersigned represents and warrants that the undersigned has full power and
authority to enter into this Agreement. The undersigned further understands that
this Agreement is irrevocable and agrees that the provisions of this Agreement
shall be binding also upon the successors, assigns, heirs and legal
representatives of the undersigned.
The undersigned understands that, if the Agency Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the Common Stock to be sold thereunder, the
undersigned shall be released from all obligations under this Agreement.
B - 2
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
-----------------------
Signature
-----------------------
Name
-----------------------
Address
B - 3
