EXHIBIT 1.1
1,100,000 PREFERRED SECURITIES
MATRIX BANCORP CAPITAL TRUST I
____% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
Boston, Massachusetts
July ___, 1999
XXXXXX XXXXXXX XXXXXX GULL
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
U.S. BANCORP XXXXX XXXXXXX, INC.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Matrix Bancorp, Inc., a Colorado corporation (the "Company") and its
financing subsidiary, Matrix Bancorp Capital Trust I, a Delaware business trust
(the "Trust", and hereinafter together with the Company, the "Offerors"),
confirm their agreement with Xxxxxx Xxxxxxx Xxxxxx Gull ("Xxxxxx Xxxxxxx"), U.S.
Bancorp Xxxxx Xxxxxxx, Inc. ("Xxxxx Xxxxxxx") and each of the other
Underwriters, if any, named in Schedule A hereto (collectively, the
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"Underwriters", which term shall also include any Underwriters substituted as
hereinafter provided in Section 11), for whom Xxxxxx Xxxxxxx and Xxxxx Xxxxxxx
are acting as representatives (in such capacity, Xxxxxx Xxxxxxx and Xxxxx
Xxxxxxx are herein collectively called the "Representative"), with respect to
the sale by the Trust and the purchase by the Underwriters, acting severally and
not jointly, of an aggregate of 1,100,000 of the Trust's _____% Cumulative Trust
Preferred Securities, with a liquidation amount of $25 per preferred security
("Preferred Securities"), to be issued under the Trust Agreement (as hereinafter
defined), the terms of which are more fully described in the Prospectus (as
hereinafter defined) (the aforementioned 1,100,000 Preferred Securities to be
sold to the Underwriters being referred to herein as the "Firm Preferred
Securities"), and with respect to the grant by the Trust to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase therefrom all or any part of an additional 165,000 Preferred
Securities for the purpose of covering over-allotments, if any. The Firm
Preferred Securities and all or any part of the Preferred Securities subject to
the option described in Section 2(b) hereof (the "Option Preferred Securities")
are hereinafter collectively referred to as the "Designated Preferred
Securities." The words "you" and "your" refer to the Representative of the
Underwriters.
1. REPRESENTATIONS AND WARRANTIES OF THE OFFERORS.
The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters as of the date hereof, and as of the Closing
Date, as defined in Section 2(a) hereof, and the Option Closing Date, as defined
in Section 2(b) hereof, if any, as follows:
(a) A registration statement on Form S-1 (File No. 333-79731) with
respect to the Designated Preferred Securities, the Guarantee (as defined
in Section 2(d) hereof) and $31,625,000 aggregate principal amount of
Debentures (as defined in Section 2(d) hereof), including a prospectus
subject to completion, has been prepared by the Offerors in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and
the applicable Rules and Regulations (as defined below) of the Securities
and Exchange Commission (the "Commission") and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and regulations
thereunder, and has been filed with the Commission; such amendments to such
registration statement, and such amended prospectuses subject to
completion, as may have been required prior to the date hereof have been
similarly prepared and filed with the Commission; and the Offerors will
file such additional amendments to such registration statement, and such
amended prospectuses subject to completion, as may hereafter be required.
Copies of such registration statement and each such amendment, each such
related prospectus subject to completion (collectively, the "Preliminary
Prospectuses" and individually, a "Preliminary Prospectus"), each document
incorporated by reference therein and each exhibit thereto have been
delivered to you. For purposes hereof, "Rules and Regulations" means the
rules and regulations adopted by the Commission under either the Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
applicable. If the registration statement has been declared effective
under the Act by the Commission, the Company will prepare and promptly file
with the Commission, pursuant to subparagraph (1) or (4) of Rule 424(b) of
the Rules and Regulations under the Act or as part of a post-effective
amendment to the registration statement (including a final form of
prospectus), the information omitted from the registration statement
pursuant to Rule 430A(a) of the Rules and Regulations under the Act. The
term "Registration Statement" as hereinafter used in this Agreement shall
mean such registration statement, including financial statements, schedules
and exhibits in the form in which it became or becomes effective
(including, if the Company omitted information from the registration
statement pursuant to Rule 430A(a) of the Rules and Regulations under the
Act, the information deemed to be a part of the registration statement at
the time it became effective pursuant to Rule 430A(b) of the Rules and
Regulations under the Act) and, in the event of any amendment thereto after
the effective date of such registration statement, shall also mean (from
and after the effectiveness of such amendment) such registration statement
as so amended, together with any registration statement filed by the
Company pursuant to Rule 462(b) under the Act. The term "Prospectus" as
used in this Agreement shall mean the prospectus relating to the Designated
Preferred Securities as included in such registration statement at the time
it
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became or becomes effective, except that if any revised prospectus shall be
provided to the Underwriters by the Offerors for use in connection with the
offering of the Designated Preferred Securities that differs from the
Prospectus on file with the Commission at the time the registration
statement became or becomes effective (whether or not such revised
prospectus is required to be filed with the Commission pursuant to Rule
424(b)(3) of the Rules and Regulations under the Act), the term
"Prospectus" shall refer to such revised prospectus from and after the time
it is first provided to the Underwriters for such use. Any reference herein
to the Registration Statement, the Prospectus, any amendment or supplement
thereto or any Preliminary Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to
the Registration Statement or Prospectus shall be deemed to refer to and
include the filing of any document with the Commission deemed to be
incorporated by reference therein.
(b) Neither the Commission nor any state regulatory authority has
issued any order preventing or suspending the use of any Preliminary
Prospectus, or instituted proceedings for that purpose, and each such
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Rules and
Regulations and, at the time of filing thereof, did not include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading. At the time the
Registration Statement became or becomes effective and at all times
subsequent thereto up to and including the Closing Date (as hereinafter
defined) and any Option Closing Date (as hereinafter defined), and during
such longer period as the Prospectus may be required to be delivered in
connection with sales by an Underwriter or a dealer, (i) the Registration
Statement and Prospectus, and any amendments or supplements thereto,
contained and will contain all material information required to be included
therein by the Act and the Rules and Regulations and conformed and will
conform in all material respects to the requirements of the Act and the
Rules and Regulations and the Trust Indenture Act (and the rules and
regulations thereunder), and (ii) neither the Registration Statement nor
the Prospectus, nor any amendment or supplement thereto, included or will
include any untrue statement of a material fact or omitted or will omit to
state 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.
(c) (i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Colorado.
Each of the subsidiaries of the Company (collectively, the "Subsidiaries"
and individually, a "Subsidiary") has been duly organized and is validly
existing in good standing under the laws of its jurisdiction of
organization. The Company and each of the Subsidiaries are duly qualified
and licensed as foreign corporations and in good standing in each
jurisdiction in which their respective operations requires such
qualification or licensing, except where the failure to be so qualified
would not have a material adverse effect on the condition, financial or
otherwise, or on the business affairs, position, prospects, value,
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operation, properties, business or results of operation of the Company and
the Subsidiaries taken as a whole, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"). The Company and each of
the Subsidiaries have all requisite power and authority, and have obtained
any and all necessary authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all governmental or
regulatory officials and bodies to own or lease their respective properties
and conduct their respective businesses as described in the Prospectus
(collectively, "Government Approvals"), except where the failure to so
obtain any such Government Approval would not have a Material Adverse
Effect; the Company and each of the Subsidiaries are and have been doing
business in compliance with all such Government Approvals, except where the
failure to so comply would not have a Material Adverse Effect; and neither
the Company nor any of the Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Government Approvals. All of the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable and are owned by the Company or a Subsidiary
free and clear of all liens, encumbrances and security interests (other
than those arising from the existing Bank stock loan), and no options,
warrants or other rights to purchase, agreements or other obligations to
issue or other rights to convert any obligations into, or exchange any
securities for shares of capital stock of or ownership interests in any of
the Subsidiaries are outstanding. The Company's only bank subsidiary is
Matrix Capital Bank (the "Bank"). The deposit accounts of the Bank are
insured by the Savings Association Insurance Fund administered by the
Federal Deposit Insurance corporation (the "FDIC") up to the maximum amount
provided by law and no proceedings for the modification, termination or
revocation of any such insurance are pending or threatened.
(ii) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Delaware Business
Trust Act with the power and authority (trust and other) to issue and sell
its common securities (the "Common Securities") to the Company pursuant to
the Trust Agreement, to issue and sell the Designated Preferred Securities,
to enter into and perform its obligations under this Agreement and to
consummate the transactions herein contemplated; the Trust has conducted
and will conduct no business other than the transactions contemplated by
this Agreement and described in the Prospectus; the Trust is not a party to
or bound by any agreement or instrument other than this Agreement, the
Trust Agreement and the agreements and instruments contemplated by the
Trust Agreement and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described in the
Prospectus; the Trust is not a party to or subject to any action, suit or
proceeding of any nature; the Trust is not, and at the Closing Date or any
Option Closing Date will not be, to the knowledge of the Offerors,
classified as an association taxable as a corporation for United States
federal income tax purposes; and the Trust is, and as of the Closing Date
or any Option Closing Date will be, treated as a consolidated subsidiary of
the Company pursuant to generally accepted accounting principles.
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(d) (i) The capital stock of the Company and the equity securities
of the Trust, the Debentures and the Guarantee conform in all material
respects to the description thereof contained in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
and neither Offeror is a party to or bound by any instrument, agreement or
other arrangement (except as disclosed in the Prospectus) providing for it
to issue any capital stock, rights, warrants, options or other securities,
except for this Agreement. All issued and outstanding shares of capital
stock and equity securities of each Offeror have been duly authorized and
validly issued and are fully paid and non-assessable and were not issued in
violation of any preemptive rights or other rights to subscribe for or
purchase securities.
(ii) (A) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in
accordance with and upon the terms and conditions set forth in this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate and trust action required to
be taken by the Offerors for the authorization, issuance, sale and
delivery of the Designated Preferred Securities in accordance with
such terms and conditions has been validly and sufficiently taken.
The Designated Preferred Securities, when delivered in accordance with
this Agreement, will be duly and validly issued and outstanding, will
be fully paid and nonassessable undivided beneficial interests in the
assets of the Trust, will be entitled to the benefits of the Trust
Agreement, will not be issued in violation of or subject to any
preemptive or similar rights, and will conform in all material
respects to the description thereof in the Registration Statement, the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the Trust Agreement. None of the
Designated Preferred Securities, immediately prior to delivery, will
be subject to any security interest, lien, mortgage, pledge,
encumbrance, restriction upon voting or transfer, preemptive rights,
claim, equity or other title defect.
(B) The Debentures have been duly and validly authorized,
and, when duly and validly executed, authenticated and issued as
provided in the Indenture and delivered to the Trust pursuant to the
Trust Agreement, will constitute valid and legally binding obligations
of the Company entitled to the benefits of the Indenture and will
conform in all material respects to the description thereof contained
in the Prospectus.
(C) The Guarantee has been duly and validly authorized, and,
when duly and validly executed and delivered to the guarantee trustee
for the benefit of the Trust, will constitute a valid and legally
binding obligation of the Company and will conform in all material
respects to the description thereof contained in the Prospectus.
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(D) The Agreement as to Expenses and Liabilities (the
"Expense Agreement") has been duly and validly authorized, and, when
duly and validly executed and delivered to the Company, will
constitute a valid and legally binding obligation of the Company and
will conform in all material respects to the description thereof
contained in the Prospectus.
(e) The audited and unaudited consolidated financial statements of the
Company, together with the notes and schedules thereto, included in the
Registration Statement, each Preliminary Prospectus and the Prospectus
fairly present the financial position and the results of operations,
changes in cash flows and changes in stockholders' equity of the Company at
the respective dates and for the respective periods to which they apply;
and each of such audited consolidated financial statements has been
prepared in conformity with generally accepted accounting principles and
the Rules and Regulations, consistently applied throughout the periods
involved, all adjustments necessary for a fair presentation of results for
such periods have been made and such unaudited consolidated financial
statements have been prepared on a basis substantially consistent with that
of such audited consolidated financial statements. Except as described in
the Prospectus, there has been no change or development involving a
Material Adverse Effect since the date of the consolidated financial
statements included in any of the Preliminary Prospectuses, the Prospectus
and the Registration Statement, and the outstanding debt, the property,
both tangible and intangible, and the business of the Company and each of
the Subsidiaries conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus. The
summary and selected consolidated financial and statistical data included
in the Registration Statement and the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
the unaudited and audited consolidated financial statements included
therein. The Company's internal accounting controls are sufficient to
cause the Company to comply with the Foreign Corrupt Practices Act of 1977,
as amended. Neither the Company nor any of the Subsidiaries has any
material contingent obligation which is not disclosed in the Registration
Statement.
(f) Ernst & Young LLP, whose reports are filed with the Commission as
a part of the Registration Statement, are independent certified public
accountants as required by the Act and the Rules and Regulations.
(g) (i) the Company and each of the Subsidiaries have paid all
federal, state, local and foreign taxes for which they are respectively
liable and which are due and payable, including, but not limited to,
withholding taxes and amounts payable under Chapters 21 through 24 of the
Internal Revenue Code of 1986, as amended, and (ii) none of the Company or
any Subsidiary has any tax deficiency or claims outstanding, assessed or,
to its knowledge, proposed against it.
(h) No transfer tax, stamp duty or other similar tax is payable by or
on behalf
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of the Underwriters in connection with (i) the issuance by the Trust of the
Designated Preferred Securities, (ii) the purchase by the Underwriters of
the Designated Preferred Securities, or (iii) the consummation by the
Offerors of any of their respective obligations under this Agreement.
(i) The Offerors and each of the Subsidiaries maintain insurance of
the types and in the amounts which are adequate for their businesses, all
of which insurance is in full force and effect.
(j) Except as disclosed in the Prospectus, there is no action, suit,
proceeding, inquiry, investigation, litigation or governmental proceeding,
domestic or foreign, pending or, to the Offerors' knowledge, threatened
against (or currently existing or previously occurring facts or
circumstances that provide a basis for the same), or involving the
properties or business of the Offerors or any of the Subsidiaries, that (i)
questions the validity of the capital stock or equity securities of the
Offerors or this Agreement or of any action taken or to be taken by the
Offerors pursuant to or in connection with this Agreement, (ii) is required
to be disclosed in the Registration Statement that is not so disclosed (and
such proceedings, if any, as are summarized in the Registration Statement
are accurately summarized in all material respects), or (iii) would have a
Material Adverse Effect.
(k) Each of the Offerors has full legal right, power and authority to
enter into this Agreement and to consummate the transactions provided for
herein and therein; and this Agreement has been duly authorized, executed
and delivered by each of the Offerors. This Agreement, assuming it has
been duly authorized, executed and delivered by the Underwriters,
constitutes a legal, valid and binding agreement of the each of the
Offerors enforceable against each of the Offerors in accordance with its
terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting enforcement of creditors' rights and
the application of equitable principles in any action, legal or equitable,
and except as rights to indemnity or contribution may be limited by
applicable law). Each of the Indenture, the Trust Agreement, the Guarantee
and the Expense Agreement has been duly authorized by the Company, and,
when executed and delivered by the Company on the Closing Date, each of
said agreements will constitute a valid and legally binding obligation of
the Company and will be enforceable against the Company in accordance with
its terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting enforcement of creditors' rights and
the application of equitable principles in any action, legal or equitable,
and except as rights to indemnity or contribution may be limited by
applicable law). Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act and will
conform to the description thereof contained in the Prospectus in all
material respects. The execution and delivery of this Agreement by the
Offerors, their performance hereunder, their consummation of
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the transactions contemplated herein and the conduct of their business and
that of each of the Subsidiaries as currently conducted and as described in
the Registration Statement, the Prospectus and any amendments or
supplements thereto, has not, does not and will not conflict with in any
material respect or result in any breach or violation of any of the
material terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge, claim, encumbrance,
pledge, security interest, defect or other restriction on equity of any
kind whatsoever upon, any property or assets (tangible or intangible) of
either Offeror or any of the Subsidiaries, pursuant to the terms of (i) the
corporate charter, operating agreement or by-laws of the Company or any of
the Subsidiaries or the Trust Agreement, the Guarantee or the Indenture,
(ii) any license, contract, indenture, mortgage, deed of trust, voting
trust agreement, stockholders agreement, note, loan or credit agreement or
any other agreement or instrument to which either Offeror or any of the
Subsidiaries is a party or by which any of them is or may be bound or to
which any of their respective properties or assets (tangible or intangible)
is or may be subject or (iii) any statute, judgment, decree, order, rule or
regulation applicable to either Offeror or any of the Subsidiaries of any
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, having jurisdiction over
either Offeror or any of the Subsidiaries or any of their respective
activities or properties.
(l) Except for certain waivers relating to existing registration
rights, which waivers have been provided to the Representative, no consent,
approval, authorization or order of, and no filing with, any court,
regulatory body, government agency or other body, domestic or foreign, is
required for the issuance of the Designated Preferred Securities pursuant
to the Prospectus and the Registration Statement, or the performance of
this Agreement, the Trust Agreement, the Guarantee or the Indenture and the
transactions contemplated thereby, except such as have been or may be
obtained under the Act, the Exchange Act or the Rules and Regulations or
may be required under state securities or Blue Sky laws in connection with
the Underwriters' purchase and distribution of the Designated Preferred
Securities.
(m) The descriptions in the Registration Statement of contracts and
other documents are accurate in all material respects and fairly present
the information required to be shown with respect thereto by Form S-1, and
there are no contracts or other documents that are required by the Act to
be described in the Registration Statement or filed as exhibits to the
Registration Statements that are not described or filed as required, and
the exhibits that have been filed are complete and correct copies of the
documents of which they purport to be copies.
(n) Subsequent to the respective dates as of which information is set
forth in the Registration Statement and Prospectus, and except as may
otherwise be indicated or contemplated herein or therein, neither Offeror
nor any of the Subsidiaries has (i) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed
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money except for changes in deposit account balances in the ordinary
course, (ii) entered into any transaction which could reasonably be
expected to have a Material Adverse Effect or (iii) declared or paid any
dividend or made any other distribution on or in respect of its capital
stock or equity securities.
(o) Except as disclosed in the Registration Statement, (i) neither of
the Offerors is in violation of its corporate charter, bylaws or other
governing documents (including without limitation the Trust Agreement), and
(ii) no material default exists in the due performance and observance of
any term, covenant or condition of any material license, contract,
indenture, mortgage, installment sale agreement, lease, deed of trust,
voting trust agreement, stockholders agreement, note, loan or credit
agreement or any other agreement or instrument evidencing an obligation for
borrowed money, or any other agreement or instrument to which either
Offeror or any of the Subsidiaries is a party or by which either Offeror or
any of the Subsidiaries may be bound or to which any of the property or
assets (tangible or intangible) of either Offeror or any of the
Subsidiaries is subject or affected.
(p) The Offerors and each of the Subsidiaries have a generally
satisfactory employer-employee relationship with their respective employees
and are in compliance with all federal, state, local, and, where
applicable, foreign, laws and regulations respecting employment and
employment practices, terms and conditions of employment and wages and
hours, except where the failure to so comply would not have a Material
Adverse Effect. To the Offerors' knowledge, there are no pending
investigations involving the Offerors or any of the Subsidiaries by the
United States Department of Labor or any other governmental agency
responsible for the enforcement of such federal, state, local or foreign
laws and regulations. To the Offerors' knowledge, there is no unfair labor
practice charge or complaint against either Offeror or any of the
Subsidiaries pending before the National Labor Relations Board or any
strike, picketing, boycott, dispute, slowdown or stoppage pending or
threatened against or involving either Offeror or any of the Subsidiaries,
and no such strike, picketing, boycott, dispute, slowdown or stoppage has
ever occurred. No representation question exists respecting the employees
of either Offeror or any of the Subsidiaries, and no collective bargaining
agreement or modification thereof is currently being negotiated by either
Offeror or any of the Subsidiaries. There are no expired or existing
collective bargaining agreements of either Offeror or any of the
Subsidiaries.
(q) Neither Offeror nor any of the Subsidiaries has incurred any
liability arising under or as a result of any breach of the provisions of
the Act.
(r) Except as disclosed in the Prospectus, neither Offeror nor any of
the Subsidiaries maintains, sponsors or contributes to any program or
arrangement that is an "employee pension benefit plan", an "employee
welfare benefit plan", or a "multiemployer plan" (collectively, the "ERISA
Plans") as such terms are defined in Sections 3(2), 3(1) and 3(37),
respectively, of the Employee Retirement Income Security
9
Act of 1974, as amended ("ERISA"). With respect to any ERISA Plan that an
Offeror or any of the Subsidiaries, now or at any time previously,
maintains or contributes to, all applicable federal laws and regulations
have been complied with, except for such instances of noncompliance which,
either singly or in the aggregate, would not have a Material Adverse
Effect. Neither Offeror nor any of the Subsidiaries has ever completely or
partially withdrawn from a "multiemployer plan."
(s) Each Offeror maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(t) The Offerors have not distributed and will not distribute prior to
the Closing Date any prospectus in connection with the Offering, other than
a Preliminary Prospectus, the Prospectus, the Registration Statement and
the other materials permitted by the 1933 Act and the 1933 Act Rules and
Regulations and reviewed by the Underwriters.
(u) No holders of any equity securities of the Offerors or of any
options, warrants or other convertible or exchangeable securities of the
Offerors exercisable for or convertible or exchangeable for equity
securities of the Offerors have the right (except as have been duly
waived), to include any securities issued by the Company in the
Registration Statement or any registration statement to be filed by the
Company within 180 days of the date hereof or to require the Company or the
Trust to file a registration statement under the Act during such 180 day
period.
(v) Neither Offeror has taken or will take, directly or indirectly
(except for any action that may be taken by the Underwriters), any action
designed to or which has constituted or which might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of either Offeror to
facilitate the sale or resale of the Designated Preferred Securities or
otherwise.
(w) Except to the extent disclosed in the Prospectus, (i) the Offerors
and each of the Subsidiaries own or possess, or have a license or other
right to use, the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
technology, trademarks, service marks and trade names, together with all
applications for any of the foregoing, currently used or held for use by
them in connection with their respective businesses, except where the
failure to own or possess, alone or in
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aggregate, would not have a Material Adverse Effect on the Offerors, (ii)
neither the Offerors nor any of the Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which has not been finally resolved and (iii) except
as set forth in the Registration Statement, neither the Offerors nor any of
the Subsidiaries is obligated or under any liability whatsoever to make any
material payments by way of royalties, fees or otherwise to any owner or
licensee of, or other claimant to, any patent, patent right, license,
invention, trademark, service xxxx, trade name, copyright, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), technology
or other intangible asset, with respect to the use thereof or in connection
with the conduct of its business or otherwise.
(x) The Offerors and each of the Subsidiaries have good and
marketable title to, or valid and enforceable leasehold estates in, all
items of real and personal property stated in the Prospectus (including the
financial statements included or incorporated by reference therein) to be
owned or leased by them, free and clear of all liens, charges, claims,
encumbrances, pledges, security interests, defects or other restrictions on
equity of any kind whatsoever, other than (i) those referred to in the
Prospectus (including such financial statements), (ii) liens for taxes not
yet due and payable and (iii) mechanics, materialmen, warehouse and other
statutory liens arising in the ordinary course of business which, either
individually or in the aggregate, do not have a Material Adverse Effect.
(y) Except as described in the Prospectus under "Underwriters" and on
the cover page of the Prospectus, there are no claims, payments, issuances,
arrangements or understandings for services in the nature of a finder's or
origination fee with respect to the sale of the Designated Preferred
Securities hereunder or any other arrangements, agreements, understandings,
payments or issuance with respect to the Offerors or any of the
Subsidiaries or any of their respective officers, directors, employees or
affiliates that may affect the Underwriters' compensation, as determined by
the National Association of Securities Dealers, Inc. ("NASD").
(z) The Preferred Securities have been approved for listing on the
Nasdaq Stock Market, Inc.'s National Market System (the "NASDAQ-NM") under
the symbol "MTXCP" subject to official notice of issuance.
(aa) The Company is not an "investment company" or an "affiliated
person" or "promoter" of, or "principal Underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended (the "1940 Act"), or subject to regulation under the 1940 Act.
(ab) Any certificate signed by any officer of either Offeror and
delivered to the Underwriters or to the Underwriters' Counsel (as
hereinafter defined) shall be deemed a representation and warranty by such
Offeror to the Underwriters as to the matters covered
11
thereby.
(ac) Except as described in the Prospectus, there are no contractual
encumbrances or restrictions or material legal restrictions on the ability
of any of the Subsidiaries (i) to pay dividends or make any other
distributions on its capital stock or to pay any indebtedness owed to the
Offerors, (ii) to make any loans or advances to, or investments in, the
Offerors or (iii) to transfer any of its property or assets to the
Offerors.
2. PURCHASE, SALE AND DELIVERY OF THE DESIGNATED PREFERRED SECURITIES;
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth,
the Offerors hereby agree that the Trust shall issue and sell the Firm
Preferred Securities to the several Underwriters, and each Underwriter,
severally and not jointly, agrees to purchase that number of Firm Preferred
Securities set forth in Schedule A opposite its name plus any additional
----------
number of Firm Preferred Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 11 hereof. The
time and date of payment for and delivery of the Firm Preferred Securities
is herein called the "Closing Date." Because the proceeds from the sale of
the Firm Preferred Securities will be used to purchase from the Company its
Junior Subordinated Debentures (as described in the Prospectus), the
Company shall pay to the Underwriters a commission of $1.00 per Firm
Preferred Security purchased (the "Firm Preferred Securities Commission").
(b) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained and upon not less than two
business days' notice from the Representative, for a period of forty-five
(45) days from the effective date of this Agreement, the Trust grants to
the Underwriters an option to purchase up to 165,000 Option Preferred
Securities. Such option is granted solely for the purpose of covering
over-allotments in the sale of Firm Preferred Securities and is exercisable
by written notice to the Trust within 30 days after the Closing Date.
Option Preferred Securities shall be purchased severally for the account of
the Underwriters in proportion to the number of Firm Preferred Securities
set forth opposite the name of such Underwriters in Schedule A hereto. The
----------
time and date of delivery of any of the Option Preferred Securities is
herein called the "Option Closing Date". Because the proceeds from the
sale of the Option Preferred Securities will be used to purchase from the
Company its Junior Subordinated Debentures (as described in the
Prospectus), the Company shall pay to the Underwriters a commission of
$1.00 per Option Preferred Security purchased (the "Option Preferred
Securities Commission"). The respective purchase obligations of each
Underwriter with respect to the Option Preferred Securities may be adjusted
by the Representative so that no Underwriter shall be obligated to purchase
Option Preferred Securities other than in 100 unit increments. The price
of both the Firm Preferred Securities and any Option Preferred Securities
shall be $25 per Preferred Security.
12
(c) Payment of the purchase price and Firm Preferred Securities
Commission and Option Preferred Securities Commission for, and delivery of
certificates for, the Firm Preferred Securities and the Option Preferred
Securities shall be made on each of the Closing Date and the Option Closing
Date, respectively, by wire transfer of immediately available funds,
payable to the order of the Trust, at the offices of Xxxxxx Xxxxxxx at Xxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, or at such other place as shall be
agreed upon by the Representative and the Offerors or, if mutually agreed
to by the Representative and the Offerors, by wire transfer, upon delivery
of certificates (in form described below) representing such securities to
the Representative. Delivery and payment for the Firm Preferred Securities
shall be made at 10:00 a.m. (Eastern Time) on the third business day
following the public offering, or at such other time and date as shall be
agreed upon by the Representative and the Trust. In the event that any or
all of the Option Preferred Securities are purchased by the Underwriters,
the date and time at which certificates for Option Preferred Securities are
to be delivered shall be determined by the Representative and the Trust but
shall not be earlier than three nor later than ten full business days after
the exercise of such option, nor in any event prior to the Closing Date.
The Firm Preferred Securities and the Option Preferred Securities, if any,
shall be issued in the form of one or more fully registered global
securities (the "Global Securities") in book-entry form in such
denominations and registered in the name the Representatives may request in
writing at least two business days before the Closing Date or the Option
Closing Date, as applicable. The Global Preferred Securities representing
the Firm Preferred Securities and the Option Preferred Securities, if any,
shall be made available for examination by the Representatives and counsel
to the Underwriters not later than 9:30 A.M. (Eastern Time) on the last
business day prior to the Closing Date or the Option Closing Date, as
applicable.
(d) The Offerors propose that the Trust issue the Designated Preferred
Securities pursuant to an Amended and Restated Trust Agreement among State
Street Bank and Trust Company, as Property Trustee, Wilmington Trust
Company, as Delaware Trustee, the Administrative Trustees named therein
(collectively, the "Trustees"), and the Company, in substantially the form
heretofore delivered to the Underwriters, said Agreement being hereinafter
referred to as the "Trust Agreement." In connection with the issuance of
the Designated Preferred Securities, the Company proposes (i) to issue its
Junior Subordinated Debentures (the "Debentures") pursuant to an Indenture,
between the Company and State Street Bank and Trust Company, as Debenture
Trustee (the "Indenture") and (ii) to guarantee certain payments on the
Designated Preferred Securities pursuant to a Guarantee Agreement between
the Company and State Street Bank and Trust Company, as Guarantee Trustee
(the "Guarantee"), to the extent described therein.
3. PUBLIC OFFERING OF THE DESIGNATED PREFERRED SECURITIES.
As soon after the Registration Statement becomes effective as the
Underwriters deem advisable, the Underwriters shall make a public offering of
the Designated Preferred Securities
13
at the price and upon the other terms set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering price
and change the other selling terms, provided the proceeds to the Trust shall not
be reduced as a result of such reduction or change. Because the NASD is expected
to view the Preferred Securities as interests in a direct participation program,
the offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's Conduct Rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by them (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow,
a concession set forth in the Prospectus to certain other brokers and dealers.
4. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
The Offerors jointly and severally agree with each of the Underwriters as
follows:
(a) The Offerors will use their best efforts to cause the Registration
Statement and any amendment thereof, if not effective at the time and date
that this Agreement is executed and delivered by the parties hereto, to
become effective as promptly as possible; they will notify the
Representative, promptly after they shall receive notice thereof, of the
time when the Registration Statement or any subsequent amendment to the
Registration Statement has become effective or any supplement to the
Prospectus has been filed; if the Offerors omitted information from the
Registration Statement at the time it was originally declared effective in
reliance upon Rule 430A(a), the Offerors will provide evidence satisfactory
to the Representative that the Prospectus contains such information and has
been filed, within the time period prescribed, with the Commission pursuant
to subparagraph (1) or (4) of Rule 424(b) of the Rules and Regulations
under the Act or as part of a post-effective amendment to such Registration
Statement as originally declared effective which is declared effective by
the Commission; if for any reason the filing of the final form of
Prospectus is required under Rule 424(b)(3) of the Rules and Regulations
under the Act, they will provide evidence satisfactory to the
Representative that the Prospectus contains such information and has been
filed with the Commission within the time period prescribed; they will
notify the Representative promptly of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus
or for additional information; promptly upon the Representative's request,
they will prepare and file with the Commission any amendments or
supplements to the Registration Statement or Prospectus which, in the
opinion of counsel for the Underwriters ("Underwriters' Counsel"), may be
necessary or advisable so as to comply with all applicable laws and
regulations (including, without limitation, Section 11 under the Act and
Rule 10b-5 under the Exchange Act) in connection with the distribution of
the Designated Preferred Securities by the Underwriters; they will promptly
prepare and file
14
with the Commission, and promptly notify the Representative of the filing
of, any amendments or supplements to the Registration Statement or
Prospectus which may be necessary to correct any statements or omissions,
if, at any time when a prospectus relating to the Designated Preferred
Securities is required to be delivered under the Act, any event shall have
occurred as a result of which the Prospectus or any other prospectus
relating to the Designated Preferred Securities as then in effect would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; in case any
Underwriter is required so as to comply with all applicable laws and
regulations (including, without limitation, Section 11 under the Act and
Rule 10b-5 under the Exchange Act) to deliver a prospectus nine months or
more after the effective date of the Registration Statement in connection
with the sale of the Designated Preferred Securities, they will prepare
promptly upon request, but at the expense of the Underwriters, such
amendment or amendments to the Registration Statement and such prospectus
or prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act; they will file no amendment or
supplement to the Registration Statement or Prospectus (other than any
document required to be filed under the Exchange Act that upon filing is
deemed incorporated therein by reference) which shall not previously have
been submitted to the Representative a reasonable time prior to the
proposed filing thereof or to which you shall reasonably object in writing
or which is not in compliance with the Act and the Rules and Regulations
under the Act and until the distribution of the Designated Preferred
Securities pursuant to the Prospectus has been completed, the Offerors will
furnish to the Representative at or prior to the filing thereof a copy of
any document that upon filing is deemed to be incorporated by reference in
the Registration Statement or Prospectus.
(b) The Offerors will advise the Representative, promptly after they
shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the Commission suspending the effectiveness of the
Registration Statement or of the initiation or threat of any proceeding for
that purpose; and they will promptly use their best efforts to prevent the
issuance of any stop order or to obtain their withdrawal at the earliest
possible moment if such stop order should be issued.
(c) The Offerors will use their best efforts to qualify the Designated
Preferred Securities for offering and sale under the securities laws of
such jurisdictions as the Representative may designate and to continue such
qualifications in effect for so long as may be required for the purposes of
the distribution of the Designated Preferred Securities, except that either
Offeror shall not be required in connection therewith or as a condition
thereof to qualify as a foreign corporation or to execute a general consent
to service of process in any jurisdiction. In each jurisdiction in which
the Designated Preferred Securities shall have been qualified as above
provided, the Offerors will make and file such statements and reports in
each year as are or may be reasonably required by the laws of such
jurisdiction.
15
(d) The Offerors will furnish to the Representative, as soon as
available, copies of the Registration Statement (including exhibits, with
the Commission's confirmation of filing), each Preliminary Prospectus, the
Prospectus and any amendment or supplements to such documents, including
any prospectus prepared to permit compliance with Section 10(a)(3) of the
Act, all in such quantities as you may from time to time reasonably
request.
(e) The Offerors will make generally available to their
securityholders as soon as practicable, but in any event not later than the
45th day following the end of the fiscal quarter first occurring after the
first anniversary of the effective date of the Registration Statement, an
earnings statement (which will be in reasonable detail but need not be
audited) complying with the provisions of Section 11(a) of the Act and
covering a twelve-month period beginning after the effective date of the
Registration Statement.
(f) For five years from the date hereof, the Offerors shall furnish to
the Representative copies of all reports and communications (financial or
otherwise) furnished by the Offerors to the holders of the Designated
Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission or with any national
securities exchange or the NASDAQ-NM and such other documents, reports and
information concerning the business and financial conditions of the
Offerors as the Representative may reasonably request. During such five
year period the Offerors' financial statements shall be on a consolidated
basis to the extent that the accounts of the Offerors and the Subsidiaries
are consolidated, and shall be accompanied by similar financial statements
for any Subsidiary which is not so consolidated.
(g) The Offerors will apply the net proceeds from the sale of the
Designated Preferred Securities being sold by it in the manner set forth
under the caption "Use of Proceeds" in the Prospectus.
(h) The Offerors will maintain a transfer agent and a registrar (which
may be the same entity as the transfer agent) for the Preferred Securities.
(i) If at any time during the 90-day period after the Registration
Statement becomes effective, any publication or event relating to or
affecting either Offeror shall occur as a result of which in your opinion
the market price of the Preferred Securities has been or is likely to be
materially affected (regardless of whether such publication or event
necessitates a supplement to or amendment of the Prospectus), the Offerors
will, after written notice from the Representative advising the Offerors to
the effect set forth above, forthwith prepare, consult with the
Representative concerning the substance of and disseminate a press release
or other public statement, reasonably satisfactory to the Representative,
responding to or commenting on such publication or event, consistent with
past practice.
(j) Unless you have declined to proceed with the offering contemplated
hereby,
16
for a period ending 180 days from the date of the Prospectus, the Offerors
will not, without your prior written consent, directly or indirectly, offer
for sale, sell or agree to sell or otherwise dispose of any Preferred
Securities other than pursuant to this Agreement, any other beneficial
interests in the assets of the Trust or any securities of the Trust or the
Company that are substantially similar to the Designated Preferred
Securities or the Debentures, including any guarantee of such beneficial
interests or substantially similar securities, or securities convertible
into or exchangeable for or that represent the right to receive any such
beneficial interest or substantially similar securities.
5. PAYMENT OF EXPENSES.
(a) The Company hereby agrees to pay on each of the Closing Date and
the Option Closing Date (to the extent not paid on the Closing Date) all
expenses and fees (other than expenses and fees of Underwriters' Counsel,
except as provided in (iii), (v) and (vii) below) incident to the
performance of the obligations of the Offerors under this Agreement,
including, without limitation, (i) the fees and expenses of accountants and
counsel for the Offerors; (ii) all costs and expenses incurred in
connection with the preparation, duplication, printing, filing (including
the filing fees of the Commission), mailing (including postage with respect
thereto) and delivery of the Registration Statement, the Preliminary
Prospectuses and the Prospectus and any amendments and supplements thereto,
including the cost of all copies thereof supplied to the Representative in
quantities as hereinabove stated, (iii) all costs and expenses incurred in
connection with the printing, mailing and delivery of this Agreement, the
Selected Dealer Agreements, and related documents, including the cost of
all copies thereof supplied to the Underwriters in quantities as
hereinabove stated, (iv) the printing, engraving, issuance and delivery of
the Designated Preferred Securities, including any transfer or other taxes
payable thereon, (v) the qualification of the Designated Preferred
Securities under state or foreign securities or Blue Sky laws, including
the costs of printing and mailing a Blue Sky Memorandum and any supplements
or amendments thereto and disbursements and fees of Underwriters' Counsel
in connection therewith (up to $10,000), (vi) fees and expenses of the
Trust's transfer agent, (vii) fees and expenses incurred in connection with
the review by the NASD of certain of the matters set forth in this
Agreement, and (viii) the fees and expenses incurred in connection with the
listing of the Designated Preferred Securities on the NASDAQ-NM and any
other exchange.
(b) In connection with the Offering, the Offerors agree to reimburse
the Underwriters for their reasonable out-of-pocket expenses ("Reimbursable
Expenses"), including: (i) their reasonable out-of-pocket expenses in
connection with the Registration Statement and related documentation; (ii)
the cost of advertising the Offering; and (iii) the Underwriters' travel
and promotional expenses. To the extent the Reimbursable Expenses (in
addition to expenses payable pursuant to Section 5(a)(v) above) exceed the
$50,000 limit, the Underwriters will bear their own out-of-pocket expenses.
17
(c) If this Agreement is terminated by the Representative in
accordance with the provisions of Section 6, Section 10(b) or Section 12,
or if the Offerors shall terminate this Agreement under Section 10(a),
unless the basis upon which the Representative terminates this Agreement
results from the default or omission of any Underwriter, the Company shall
reimburse and indemnify the Underwriters for (i) all of their reasonable
out-of-pocket expenses, including the fees and disbursements of
Underwriters' Counsel, plus (ii) the fees and expenses identified in
Section 5(a)(v) and 5(a)(vii) above.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters hereunder shall be subject to the
continuing accuracy of the representations and warranties of the Offerors herein
as of the date hereof and as of the Closing Date and the Option Closing Date, if
any, as if they had been made on and as of the Closing Date or the Option
Closing Date, as the case may be; the accuracy on and as of the Closing Date or
Option Closing Date, if any, of the statements of officers of the Offerors made
pursuant to the provisions hereof; and the performance by the Offerors on and as
of the Closing Date and the Option Closing Date, if any, of their respective
covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Eastern Time, on the date of this Agreement or such later
date and time as shall be consented to by the Representative, and, at the
Closing Date and the Option Closing Date, if any, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or shall be
pending or contemplated by the Commission and any request on the part of
the Commission for additional information shall have been complied with to
the satisfaction of Underwriters' Counsel. If the Offerors have elected to
rely upon Rule 430A of the Rules and Regulations under the Act, the price
of the Designated Preferred Securities and any other information previously
omitted from the effective Registration Statement pursuant to such Rule
430A shall have been transmitted to the Commission for filing pursuant to
Rule 424(b) of the Rules and Regulations under the Act within the
prescribed time period, and, prior to the Closing Date, the Offerors shall
have provided evidence satisfactory to the Representative of such timely
filing, or a post-effective amendment providing such information shall have
been promptly filed and declared effective in accordance with the
requirements of Rule 430A of the Rules and Regulations under the Act.
(b) The Representative shall not have advised the Offerors that the
Registration Statement, or any amendment thereto, contains an untrue
statement of fact that, in the Representative's opinion or in the opinion
of Underwriters' Counsel, is material, or omits to state a fact that, in
the Representative's opinion or in the opinion of Underwriters' Counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading, or that the Prospectus, or any
supplement thereto,
18
contains an untrue statement of fact that, in the Representative's opinion
or in the opinion of Underwriters' Counsel, is material, or omits to state
a fact that, in the Representative's opinion or in the opinion of
Underwriters' Counsel, is material and is required to be stated therein or
is necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(c) On the Closing Date and the Option Closing Date, if any, the
Representative shall have received from Underwriters' Counsel the favorable
opinion to the effect that:
(i) the Preferred Securities conform in all material respects to
the description thereof contained in the Prospectus;
(ii) the Registration Statement is effective under the Act, and
if applicable, the filing of all pricing and other
information has been timely made in the appropriate form
under Rule 430A of the Rules and Regulations, and, to such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued,
and no proceedings for that purpose have been instituted or
threatened by the Commission. Such counsel shall state that
such counsel has participated in conferences with officers
and other representatives of the Company, counsel for the
Company, representatives of the independent certified public
accountants for the Company and the Representative, at which
conferences 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, nor has such counsel
independently verified, the accuracy, completeness or
fairness of the statements contained in the Registration
Statement and Prospectus (except as to matters referred to
in subparagraph (i) above of this Section 6(c)), no facts
have come to the attention of such counsel (relying as to
materiality to a large extent upon the opinions of officers
and other representatives of the Company) that lead them to
believe that either the Registration Statement or any
amendment thereto, at the time such Registration Statement
or amendment became effective or any Preliminary Prospectus
(other than information omitted pursuant to Rule 430A) or
the Prospectus or any amendment or supplement thereto as of
the date of such opinion contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading (it being
understood that such counsel need express no view with
respect to the financial statements and schedules and other
financial and statistical data included in any Preliminary
Prospectus, the
19
Registration Statement (including any exhibit thereto) or
the Prospectus or any amendment or supplement thereto); and
(iii) each of the Preliminary Prospectuses, the Registration
Statement and the Prospectus and any amendments or
supplements thereto (other than the financial statements
and schedules, related notes and other financial and
statistical data included therein, as to which no opinion
need be rendered) comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations.
The opinion of Underwriters' Counsel to be dated the Option Closing Date,
if any, may confirm as of the Option Closing Date the statements made by
such counsel in their opinion delivered on the Closing Date.
(d) (1) On the Closing Date and the Option Closing Date, if any, the
Underwriters shall have received the favorable opinion of Xxxxxxxxx Xxxxxxx
Xxxxx Xxxxxx LLP, counsel to the Offerors, dated the Closing Date and the
Option Closing Date, if any, addressed to the Underwriters and in form and
substance reasonably satisfactory to Underwriters' Counsel, to the effect
that:
(i) (A) the Company and each of the Subsidiaries are duly
organized, validly existing and in good standing under the
laws of their respective jurisdictions of organization, and
(B) the Company is duly qualified as a foreign corporation
and in good standing in listed jurisdictions; all of the
outstanding shares of capital stock of each of Matrix
Capital Bank, Matrix Financial Services Corporation and
United Financial, Inc. (the "Primary Subsidiaries") the
Subsidiaries have been duly authorized and validly issued
and are fully-paid and non-assessable and are owned of
record by the Company or a Subsidiary; to such counsel's
knowledge, (A) the outstanding shares of capital stock of
the Subsidiaries are owned by the Company or a Subsidiary
free and clear of all liens, encumbrances and security
interests (other than those created by the outstanding Bank
stock loan) and (B) no options, warrants or other rights to
purchase, agreements or other obligations to issue or other
rights to convert any obligations into, or exchange any
securities for, any shares of capital stock of or ownership
interests in any of the Subsidiaries are outstanding;
(ii) the Company and each of the Primary Subsidiaries have the
corporate power to own, lease and operate their respective
properties and to conduct their respective businesses as
described in the Prospectus;
20
(iii) The capital stock, Debentures and Guarantee of the Company
and the equity securities of the Trust conform to the
description thereof contained in the Prospectus in all
material respects. To such counsel's knowledge, there are
no outstanding rights, options or warrants to purchase, no
other outstanding securities convertible into or
exchangeable for, and no commitments, plans or arrangements
to issue, any shares of capital stock of the Company or
equity securities of the Trust, except as described in the
Prospectus. To such counsel's knowledge, the Firm Preferred
Securities and the Option Preferred Securities are not and
will not be subject to any preemptive rights under Colorado
law or similar statutory rights. The issuance, sale and
delivery of the Designated Preferred Securities and
Debentures in accordance with the terms and conditions of
this Agreement and the Indenture have been duly authorized
by all necessary actions of the Company. All of the
Designated Preferred Securities have been duly and validly
authorized and, when delivered in accordance with this
Agreement will be duly and validly issued, fully paid and
nonassessable, and will conform in all material respects to
the description thereof in the Registration Statement, the
Prospectus and the Trust Agreement; and the Designated
Preferred Securities have been approved for quotation on
NASDAQ-NMS subject to official notice of issuance. There
are no preemptive or other rights to subscribe for or to
purchase, and no restrictions upon the voting or transfer
of, any shares of capital stock or equity securities of the
Offerors or the Subsidiaries pursuant to the corporate
charter, by-laws or other governing documents (including,
without limitation, the Trust Agreement) of the Offerors or
the Subsidiaries, or, to the best of such counsel's
knowledge, any agreement or other instrument to which
either Offeror or any of the Subsidiaries is a party or by
which either Offeror or any of the Subsidiaries may be
bound. To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right
that, if exercised, would require the Offerors to cause
such securities to be included in the Registration
Statement or any registration statement to be filed by the
Company within 180 days of the date hereof or to require
the Company to file a registration statement under the Act
during such 180 day period, or have waived such right.
(iv) the Registration Statement is effective under the Act, and,
if applicable, the filing of all pricing and other
information has been timely made in the appropriate form
under Rule 430A of the Rules and Regulations under the Act,
and, to the best of such counsel's
21
knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or, to
such counsel's knowledge, threatened by the Commission;
(v) the Registration Statement and the Prospectus and any
amendment or supplement thereto (other than the financial
statements and schedules, related notes and other financial
and statistical data included therein, as to which no
opinion need be rendered) comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations under the Act; and to the best of such
counsel's knowledge, there are no contracts, agreements,
leases or other documents of a character required to be
disclosed in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement that are
not so disclosed or filed;
(vi) (A) to such counsel's knowledge, there is not pending or
threatened against the Offerors or any of the Subsidiaries,
or involving any of their respective properties or
businesses, any action, suit, proceeding, inquiry,
investigation, litigation or governmental proceeding,
domestic or foreign, that (y) is required to be disclosed
in the Registration Statement and is not so disclosed (and
such proceedings as are summarized in the Registration
Statement are accurately summarized in all material
respects), or (z) questions the validity of the capital
stock or equity securities of the Company or the Trust,
this Agreement, or any action taken or to be taken by the
Offerors pursuant to or in connection with this Agreement
and (B) no statute or regulation or legal or, to such
counsel's knowledge, governmental proceeding required to be
described in the Prospectus is not described as required;
(vii) the Company has all requisite corporate power and authority
to enter into this Agreement and to consummate the
transactions provided for herein; and this Agreement has
been duly authorized, executed and delivered by the
Offerors and constitutes the legal, valid and binding
obligation of the Offerors enforceable in accordance with
its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to
or affecting enforcement of creditors' rights and the
application of equitable principles in any action, legal or
equitable, and except as rights to indemnity or
contribution may be limited by applicable law). The
execution, delivery and performance of this Agreement
22
and the consummation of the transactions contemplated
herein and in the Trust Agreement does not and will not
result in any breach or violation of any of the material
terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge,
claim, pledge, security interest, or other encumbrance
upon, any property or assets (tangible or intangible) of
the Company or any of the Primary Subsidiaries or the
Designated Preferred Securities pursuant to the terms of
(A) the corporate charter, operating agreement or by-laws,
or other governing instrument of the Company or any of the
Primary Subsidiaries, (B) to such counsel's knowledge, the
Guarantee, the Indenture, the Expense Agreement, any
indenture, mortgage, deed of trust, note, loan or credit
agreement or other agreement or instrument known to such
counsel to which the Company or any of the Subsidiaries is
a party or by which any of them is or may be bound or to
which any of their respective properties or assets
(tangible or intangible) is or may be subject, or (C) any
statute, rule or regulation or, to such counsel's
knowledge, any judgment, decree or order applicable to the
Company or any of the Subsidiaries of any arbitrator,
court, regulatory body or administrative agency or other
governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries or any of their
respective activities or properties, the violation of
which would have a Material Adverse Effect;
(viii) each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and
delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable in
accordance with its terms;
(ix) the Debentures have been duly authorized, executed, and
delivered by the Company, are entitled to the benefits of
the Indenture and are legal, valid and binding obligations
of the Company enforceable against the Company in
accordance with their terms;
(x) the Expense Agreement has been duly authorized, executed
and delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable in
accordance with its terms;
(xi) no consent, approval, authorization or order of, and no
filing with, any federal or state regulatory body,
government agency or other body (other than such as have
been effected under the Act and the Exchange Act and such
as may be required under Blue Sky or state
23
securities laws or the rules of the NASD in connection
with the purchase and distribution of the Designated
Preferred Securities by the Underwriters, as to which no
opinion need be rendered) is required to be obtained or
made by the Company in connection with the issuance of the
Designated Preferred Securities pursuant to the Prospectus
and the Registration Statement, the performance of this
Agreement and the transactions contemplated hereby;
(xii) to such counsel's knowledge, neither the Company nor any
of the Primary Subsidiaries is in violation of any term or
provision of its corporate charter or by-laws; and
(xiii) the statements in the Prospectus under the captions
"Description of the Preferred Securities," "Description of
the Business--Regulation," "Description of the Junior
Subordinated Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Junior
Subordinated Debentures and the Guarantee," "Certain
Federal Income Tax Consequences," and "ERISA
Considerations" have been reviewed by such counsel, and
insofar as they refer to statements of law, descriptions
of statutes, written contracts, or rules or regulations,
are correct in all material respects.
Such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Offerors
and representatives of the independent certified public accountants
for the Offerors, at which conferences 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, nor has such counsel independently
verified, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, no facts have
come to the attention of such counsel that lead them to believe that
either the Registration Statement or any amendment thereto, at any
time such Registration Statement or amendment became effective or any
Preliminary Prospectus circulated by the Underwriters (other than
information omitted pursuant to Rule 430A as of the date of such
Preliminary Prospectus) or the Prospectus or any amendment or
supplement thereto as of the date of such opinion contained or
contains any untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made (it being understood that
such counsel need express no view with respect to the financial
statements and schedules, related notes, and other financial and
statistical data included or incorporated by reference in any
Preliminary Prospectus circulated by the Underwriters, the
Registration Statement (including
24
any exhibit thereto) or the Prospectus or any amendment or supplement
thereto).
The foregoing opinion may be limited to the laws of Missouri, the laws
of the jurisdictions of incorporation of the Company and the
Subsidiaries and applicable United States federal law. In rendering
the foregoing opinions, counsel may rely, to the extent they deem such
reliance proper, on the opinions of other counsel as to matters
governed by the laws of jurisdictions other than the United States and
the State of Missouri. In rendering such opinion, such counsel may
assume that Missouri law is the same as Massachusetts law in all
relevant respects. In rendering such opinions, such counsel may rely
as to matters of fact, to the extent they deem proper, on certificates
and written statements of responsible officers of the Offerors and the
Subsidiaries 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
the Subsidiaries, provided that copies of any such statements or
certificates shall be delivered to Underwriters' Counsel if requested.
For purposes of any of the opinions to be rendered by such counsel
pursuant to this subsection (d) of Section 6, the term "to such
counsel's knowledge" shall mean, to the extent that such opinion
relates to a factual issue or to a mixed question of law and fact,
that after examination of documents in such counsel's files relating
to the Offering and considering the actual knowledge of the individual
attorneys in such counsel's firm who have given substantive attention
to matters on behalf of the Offerors, such counsel finds no reason to
believe that any of such opinions is factually incorrect.
The opinion of counsel to the Offerors, to be dated the Option Closing
Date, if any, may confirm as of the Option Closing Date the statements
made by such counsel in their opinion delivered on the Closing Date.
(2) Morris, Nichols, Arsht & Xxxxxxx, special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust
Act, 12 Del. C. (S)(S) 3801 et seq. (the "Delaware Act"),
---- -- -- ----
with the business trust power and authority to (a) own its
property and conduct its business as described in the
Prospectus, (b) execute and deliver, and perform its
obligations under, this Agreement and (c) issue and perform its
obligations under the Trust Preferred Securities.
(ii) The Trust Agreement constitutes a legal, valid and binding
obligation of the Company and the trustees of the Trust in
accordance with its terms.
25
(iii) Under the Trust Agreement and the Delaware Act, all necessary
trust action has been taken on the part of the Trust to duly
authorize the execution and delivery of this Agreement by the
Trust and the performance of its obligations hereunder.
(iv) The Designated Preferred Securities have been duly authorized
for issuance by the Trust Agreement and, when issued and
delivered in accordance with the terms of the Trust Agreement
and this Agreement and as described in the Prospectus, will be
validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust. The holders of the
Preferred Securities will be entitled to the benefits of the
Trust Agreement and will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the Delaware General
Corporation Law. Such opinion may note that the holders of the
Preferred Securities may be required to make payment or provide
indemnity or security as set forth in the Trust Agreement.
(v) Under the Trust Agreement and the Delaware Act, the issuance of
the Preferred Securities is not subject to preemptive rights.
(vi) The issuance and sale by the Trust of the Designated Preferred
Securities and the Common Securities, the execution, delivery
and performance by the Trust of this Agreement, and the
consummation by the Trust of the transactions contemplated by
this Agreement do not violate (a) any of the provisions of the
Certificate of Trust or the Trust Agreement or (b) any
applicable Delaware law or administrative regulation.
Such opinion may state that it is limited to the laws of the State of Delaware
and that the opinion expressed in paragraph (ii) above is subject to the effect
upon the Trust Agreement of (i) bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and
remedies, (ii) general principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) considerations of
public policy and the effect of applicable law relating to fiduciary duties.
(e) On or prior to each of the Closing Date and the Option Closing
Date, if any, Underwriters' Counsel shall have been furnished such
customary documents, certificates and opinions as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in subsection (d) of this Section 6, or in order to evidence
the accuracy, completeness or satisfaction of any of the representations,
warranties or conditions of the Offerors herein contained.
26
(f) Prior to each of the Closing Date and the Option Closing Date, if
any, (i) from the respective dates as of which information is set forth in
the Registration Statement and Prospectus, there shall have been no
developments that, individually or in the aggregate, have had a Material
Adverse Effect; (ii) there shall have been no transaction, not in the
ordinary course of business, entered into by either of the Offerors or any
of the Subsidiaries, from the latest date as of which the financial
condition of the Offerors and the Subsidiaries is set forth in the
Registration Statement and Prospectus, that, individually or in the
aggregate, has had a Material Adverse Effect; (iii) neither the Offerors
nor any of the Subsidiaries shall be in default under any provision of any
instrument relating to any of their respective outstanding indebtedness;
(iv) no material amount of the assets of the Offerors or any of the
Subsidiaries shall have been pledged or mortgaged, except as set forth in
the Registration Statement and Prospectus (including the exhibits to the
Registration Statement); (v) no action, suit or proceeding, at law or in
equity, shall have been pending or, to the knowledge of the Offerors,
threatened against the Offerors or any of the Subsidiaries, or affecting
any of their respective properties or businesses before or by any court or
federal, state or foreign commission, board or other administrative agency
wherein an unfavorable decision, ruling or finding would have a Material
Adverse Effect; and (vi) no stop order shall have been issued under the Act
and no proceedings therefor shall have been initiated, or, to the
Offerors's knowledge, threatened or contemplated by the Commission.
(g) At each of the Closing Date and the Option Closing Date, if any,
the Representative shall have received a certificate of the Offerors signed
by the principal executive officer and by the chief financial officer of
the Company and by the Administrative Trustees of the Trust, dated the
Closing Date or Option Closing Date, as the case may be, to the effect that
each of such persons has carefully examined the Registration Statement, the
Prospectus and this Agreement and that:
(i) the representations and warranties of the applicable
Offeror in this Agreement are true and correct, as if made
on and as of the Closing Date or the Option Closing Date,
as the case may be, and the applicable Offeror has
complied with all agreements and covenants and satisfied
all conditions contained in this Agreement on its part to
be performed or satisfied at or prior to such Closing Date
or Option Closing Date, as the case may be;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings
for that purpose have been instituted or are pending or,
to the knowledge of such officer, are threatened under the
Act;
(iii) none of the Registration Statement, the Prospectus nor any
amendment or supplement thereto includes any untrue
statement of
27
a material fact or omits to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading and neither the
Preliminary Prospectus nor any supplement thereto included
any 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, in light of the
circumstances under which they were made, not misleading;
and
(iv) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus,
neither the Offerors nor any of the Subsidiaries has
incurred up to and including the Closing Date or the
Option Closing Date, as the case may be, other than in the
ordinary course of their respective businesses, any
material liabilities or obligations, direct or contingent;
the Offerors have not paid or declared any dividends or
other distributions on their capital or equity securities;
neither the Offerors nor any of the Subsidiaries has
entered into any transactions not in the ordinary course
of business; and there has not been any material change in
the capital stock or long-term debt or any material
increase in the short-term borrowings of the Offerors or
any of the Subsidiaries; neither the Offerors nor any of
the Subsidiaries has sustained any material loss or damage
to its property or assets, whether or not insured; there
is no litigation that is pending or, to the knowledge of
such officers, threatened against the Offerors or any of
the Subsidiaries that is required to be set forth in an
amended or supplemented Prospectus that has not been set
forth; and there has occurred no event required to be set
forth in an amended or supplemented Prospectus that has
not been set forth.
References to the Registration Statement and the Prospectus in this
subsection (g) are to such documents as amended and supplemented at the
date of such certificate.
(h) On the date of this Agreement, the Representative shall have
received a letter in form and substance satisfactory to the Representative
and the Underwriters' Counsel addressed to the Underwriters and dated the
date of this Agreement from Ernst and Young and signed by such firm with
respect to such matters as shall have been specified to such firm by the
Underwriters prior to the date hereof. At the Closing Date and the Option
Closing Date, if any, the Underwriters shall have received from Ernst and
Young a letter, dated as of the Closing Date or the Option Closing Date, as
the case may be, reaffirming the statements made in the letter furnished by
Ernst and Young to the Underwriters concurrently with the execution of this
Agreement, each such reaffirming letter to be in form and substance
satisfactory to the Underwriters and the Underwriters' Counsel.
28
(i) On each of the Closing Date and the Option Closing Date, if any,
there shall have been duly tendered to the Representative for the several
Underwriters' accounts the appropriate number of Designated Preferred
Securities.
(j) No order suspending the sale of the Designated Preferred
Securities in any jurisdiction designated by the Representative pursuant to
subsection (c) of Section 4 hereof shall have been issued on either the
Closing Date or the Option Closing Date, if any, and no proceedings for
that purpose shall have been instituted or to the knowledge of the
Representative or the Offerors shall be contemplated.
(k) The Designated Preferred Securities delivered on the Closing Date
or the Option Closing Date shall have been duly listed, subject to notice
of official issuance, on the NASDAQ-NM.
(l) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(m) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the
Underwriters' participation in such offering.
(n) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and Underwriters' Counsel
all such other documents, certificates and opinions as they have reasonably
requested.
If any condition to the Underwriters' obligations hereunder to be fulfilled
prior to or at the Closing Date or the relevant Option Closing Date, as the case
may be, is not so fulfilled, the Underwriters may terminate this Agreement or,
if the Underwriters so elect, they may waive any such conditions that have not
been fulfilled or extend the time for their fulfillment.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors jointly and severally agree to defend, indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any breach of any representation, warranty, agreement or
covenant of the Company or the Trust herein contained or any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading; and agree to
reimburse each
29
Underwriter subject to subsection (d) for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Offerors shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in the Registration Statement, such Preliminary Prospectus or the
Prospectus, or any such amendment or supplement, in reliance upon and in
conformity in all material respects with written information furnished with
respect to any Underwriters by such Underwriter expressly for use in the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, provided that such written information or
omissions only pertain to disclosures in the Registration Statement, any
preliminary Prospectus or the Prospectus or any amendment or supplement
thereto directly relating to the transactions effected by the Underwriters
in connection with this offering, and provided further that the foregoing
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) if such untrue statement or omission or alleged untrue
statement or omission made in any Preliminary Prospectus is eliminated or
remedied in the Prospectus and a copy of the Prospectus has not been
furnished to the person asserting any such loss, claim, damage or liability
at or prior to the written confirmation of the sale of such Preferred
Securities to such person.
The indemnity agreement in this Section 7(a) shall extend upon the
same terms and conditions to, and shall inure to the benefit of each
person, if any, who controls any Underwriter within the meaning of the Act.
This indemnity agreement shall be in addition to any liabilities which the
Offerors may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Offerors to the same extent as the foregoing
indemnity from the Offerors to the Underwriters but only with respect to
statements or omissions, if any, made in the Registration Statement, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto made in reliance upon, and in conformity in all material respects
with, written information furnished with respect to any Underwriter by such
Underwriter expressly for use in the Registration Statement, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, provided that such written information or omissions only pertain
to disclosures in the Registration Statement, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto directly relating to
the transactions effected by the Underwriters in connection with this
offering.
The indemnity agreement in this Section 7(b) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each
officer and director of the Company and the Trust who has signed the
Registration Statement, and each person, if any, who controls the Company
or the Trust within the meaning of the Act. This indemnity agreement shall
be in addition to any liabilities which each Underwriter may otherwise
30
have. For purposes of this Agreement, the Offerors acknowledge that the
statements with respect to the public offering of the Designated Preferred
Securities set forth under the heading "UNDERWRITERS" and the stabilization
legend in the Prospectus and the last paragraph on the outside front cover
page of the Prospectus have been furnished by the Underwriters expressly
for use therein and constitute the only information furnished in writing by
or on behalf of the Underwriters for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under this Section 7 (except to the extent that the omission of such
notice causes actual prejudice to the indemnifying party), or otherwise
than under this Section 7. In case any such action is brought against any
indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
parties and the indemnifying party and counsel for the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel reasonably
satisfactory to the indemnifying party or parties to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel approved by the indemnifying
party, representing all the indemnified parties under Section 7(a), 7(b) or
7(c) hereof who are parties to such action), (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice of commencement of the action, or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. In no event shall any indemnifying
party be liable in respect of any amounts paid in settlement of any action
unless the indemnifying party shall have approved the terms of such
settlement; provided however that such consent shall not be unreasonably
withheld.
31
(d) In order to provide for just and equitable contribution in any
action in which a claim for indemnification is made pursuant to this
Section 7 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time
to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact
that this Section 7 provides for indemnification in such case, all the
parties hereto shall contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others)
in such proportion so that the Underwriters are responsible pro rata for
the portion represented by the percentage that the underwriting commission
bears to the public offering price, and the Offerors are responsible for
the remaining portion, provided, however, that (i) no Underwriter shall be
required to contribute any amount in excess of the underwriting commission
applicable to the Preferred Securities purchased by such Underwriter and
(ii) no person guilty of a fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to a contribution from any
person who is not guilty of such fraudulent misrepresentation.
(e) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including without limitation
the provisions of this Section 7, and are fully informed regarding such
provisions. They further acknowledge that the provisions of this Section 7
fairly allocate the risks in light of the ability of the parties to
investigate the Offerors and their business in order to assure that
adequate disclosure is made in the Registration Statement and Prospectus as
required by the Act and the Exchange Act. The parties are advised that
federal or state public policy, as interpreted by the courts in certain
jurisdictions, may be contrary to certain of the provisions of this Section
7, and the parties hereto hereby expressly waive and relinquish any right
or ability to assert such public policy as a defense to a claim under this
Section 7 and further agree not to attempt to assert any such defense.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or contained in certificates of officers of the Offerors submitted pursuant
thereto shall be deemed to be representations, warranties and agreements at the
Closing Date and the Option Closing Date, as the case may be, and such
representations, warranties and agreements, and the indemnity and contribution
agreements contained in Section 7 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, the Offerors or any controlling person, and shall survive
termination of this Agreement or the issuance or sale and delivery of the
Designated Preferred Securities to the Underwriters.
9. EFFECTIVE DATE.
This Agreement shall become effective at 2:00 p.m., Eastern Time, on the
date hereof, or
32
at such earlier time after the Registration Statement becomes effective as the
Representative, in its sole discretion, shall release the Designated Preferred
Securities for the sale to the public, provided, however that the provisions of
Sections 5, 7 and 9 of this Agreement shall at all times be effective. For
purposes of this Section 9, the Designated Preferred Securities to be purchased
hereunder shall be deemed to have been so released upon the earlier of dispatch
by the Representative of telegrams to securities dealers releasing such
Designated Preferred Securities for offering or the release by the
Representative for publication of the first newspaper advertisement that is
subsequently published relating to the Designated Preferred Securities.
10. TERMINATION.
(a) Subject to subsection (d) of this Section 10, the Offerors may at
any time before this Agreement becomes effective in accordance with Section
9, terminate this Agreement.
(b) Subject to subsection (d) of this Section 10, the Representative
shall have the right to terminate this Agreement, (i) if any calamitous
domestic or international event or act or occurrence has materially
disrupted, or in the Representative's opinion will in the immediate future
materially disrupt, general securities markets in the United States; or
(ii) if trading on the New York Stock Exchange, the NASDAQ-NM or in the
over-the-counter market shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required on the over-the-counter market by the
NASD or by order of the Commission or any other government authority having
jurisdiction; or (iii) if the United States shall have become involved in a
war or major hostilities; or (iv) if a banking moratorium has been declared
by the State of New York, the Commonwealth of Massachusetts or any federal
authority; or (v) if a moratorium in foreign exchange trading has been
declared; or (vi) if the Company or the Trust shall have sustained a loss
material or substantial to the Company or the Trust by fire, flood,
accident, hurricane, earthquake, theft, sabotage or other calamity or
malicious act that, whether or not such loss shall have been insured, will,
in the Representative's reasonable opinion, make it inadvisable to proceed
with the delivery of the Designated Preferred Securities; or (vii) if there
shall have been a Material Adverse Effect.
(c) If any party hereto elects to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section 10,
such party shall notify, on the same day as such election is made, the
other parties hereto in accordance with the provisions of Section 13
hereof.
(d) Notwithstanding any contrary provision contained in this
Agreement, any election hereunder or any termination of this Agreement
(including, without limitation, pursuant to Sections 11 and 12 hereof), and
whether or not this Agreement is otherwise carried out, the provisions of
Sections 5, 7 and 9 shall not be in any way affected by such
33
election or termination or failure to carry out the terms of this Agreement
or any part thereof.
11. SUBSTITUTION OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 6, Section 10 or Section 12 hereof) to purchase the Designated Preferred
Securities that it or they are obligated to purchase on such date under this
Agreement (the "Defaulted Securities"), the Representative shall use its best
efforts within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24 hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
total number of Firm Preferred Securities to be purchased on such date, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the total
number of Firm Preferred Securities and arrangements satisfactory to the
Representative for the purchase of the Defaulted Securities are not made
within 36 hours, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriters. The Offerors may assist the
Representative in making such arrangements by procuring another party
satisfactory to the Representative to purchase the Defaulted Securities on
the terms set forth herein.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default by such Underwriter under
this Agreement.
In the event of any such default that does not result in a termination of
this Agreement, the Representative shall have the right to postpone the Closing
Date for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements.
12. DEFAULT BY THE TRUST.
If the Trust shall fail at the Closing Date or the Option Closing Date, as
applicable, to sell and deliver the number of Preferred Securities that it is
obligated to sell hereunder on such date, then this Agreement shall terminate
(or, if such default shall occur with respect to any Option Preferred Securities
to be purchased on the Option Closing Date, the Underwriters may, at the
34
Representative's option, by notice from the Representative to the Company,
terminate the Underwriters' several obligations to purchase Designated Preferred
Securities from the Company on such date) without any liability on the part of
any non-defaulting party other than pursuant to Section 5 and Section 7 hereof.
No action taken pursuant to this Section shall relieve the Trust from liability,
if any, in respect of such default.
13. NOTICES.
All notices and communications hereunder may be mailed or transmitted by
any standard form of telecommunication and, except as herein otherwise
specifically provided, shall be in writing and shall be deemed to have been duly
given when delivered to a notice party hereto at the address specified herein or
at the address subsequently communicated in writing to the notice parties.
Notices to the Underwriters shall be directed to the Representative c/o Xxxxxx
Xxxxxxx Incorporated, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxxx, Managing Director, with a copy to Xxxxxx X. Pisa, P.C.,
Xxxxxxx, Procter & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Notices to the Company or the Trust shall be directed to c/o Matrix Bancorp,
Inc., 0000 Xxxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, facsimile (000) 000-0000
with a copy to Xxxxxx X. Xxxxxx, Esq., Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, 0000
Xxxx Xxxxxx, Xxxxxx Xxxx, XX 00000, facsimile (000) 000-0000. In each case a
notice party may change its address for notice hereunder by a written
communication to the other notice parties.
14. PARTIES.
This Agreement shall inure solely to the benefit of and shall be binding
upon the Underwriters, the Offerors and the controlling persons, directors and
officers referred to in Section 7 hereof, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to
have any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provisions herein contained. No purchaser of
Preferred Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
15. CONSTRUCTION.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT GIVING
EFFECT TO THE CHOICE OF LAW OR CONFLICT OF LAWS PRINCIPLES.
16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which taken together shall be
deemed to be one and the same instrument.
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17. ENTIRE AGREEMENT.
This Agreement and the Schedules hereto contain the entire agreement
between the parties hereto in connection with the subject matter hereof and
supersede all prior agreements, written or oral, with respect to such subject
matter.
18. AMENDMENT.
This Agreement and the Schedules hereto may not be amended, modified or
altered without the written agreement of the Offerors and the Underwriters.
If the foregoing correctly sets forth the understanding between the
Underwriters and the Offerors, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
among us.
Very truly yours,
MATRIX BANCORP, INC.
By:____________________________
Name:
Title:
MATRIX BANCORP CAPITAL TRUST I
By:_______________________________
Name:
Title:
CONFIRMED AND ACCEPTED AS OF THE
DATE FIRST ABOVE WRITTEN:
XXXXXX XXXXXXX XXXXXX GULL
By:________________________________
Name:
Title:
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U.S. BANCORP XXXXX XXXXXXX, INC.
By:________________________________
Name:
Title:
37
SCHEDULE A
----------
NAME NUMBER OF FIRM PREFERRED SECURITIES
---- -----------------------------------
Xxxxxx Xxxxxxx Xxxxxx Gull ___________
U.S. Bancorp Xxxxx Xxxxxxx, Inc. ___________
Total ___________
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