Exhibit 1.1
CRESCENT CAPITAL TRUST I
(A DELAWARE BUSINESS TRUST)
1,000,000 PREFERRED SECURITIES
_____% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
FORM OF
UNDERWRITING AGREEMENT
----------------------
__________, 1999
Ryan, Beck & Co., Inc.
220 South Orange Avenue
Livingston, New Jersey 07039
Ladies and Gentlemen:
Crescent Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act of the State of Delaware (the "Delaware
Act"), and CB&T Holding Corporation, a Louisiana corporation (the "Company"), as
depositor of the Trust and as guarantor (the Trust and the Company are referred
to collectively as the "Offerors"), hereby confirm their agreement with Ryan,
Beck & Co., Inc. (the "Underwriter"), with respect to the issue and sale by the
Trust and the purchase by the Underwriter of 1,000,000 (the "Initial
Securities") of the Trust's _____% Cumulative Trust Preferred Securities (the
"Preferred Securities"). The Trust and the Company also propose to issue and
sell to the Underwriter, at the Underwriter's option, up to an additional
150,000 Preferred Securities (the "Option Securities") as set forth herein. The
term "Preferred Securities" as used herein, unless indicated otherwise, shall
mean the Initial Securities and the Option Securities.
The Preferred Securities and the Common Securities (as defined herein) are
to be issued pursuant to the terms of an Amended and Restated Trust Agreement
dated as of __________, 1999 (the "Trust Agreement"), among the Company, as
depositor, Wilmington Trust Company (the "Trust Company"), a Delaware banking
corporation, as property trustee (the "Property Trustee"), the Trust Company, as
Delaware trustee (the "Delaware Trustee"), and Gary N. Solomon, an individual,
Paul R. Trapani, Jr., an individual, and William F. Haake, Jr., an individual
(the "Administrative Trustees" and, together with the Property Trustee and the
Delaware Trustee, the "Trustees") and the
holders from time to time of undivided beneficial interests in the assets of the
Trust. The Preferred Securities will be guaranteed by the Company, on a
subordinated basis and subject to certain limitations, with respect to
distributions and payments upon liquidation, redemption or otherwise (the
"Guarantee") pursuant to the Preferred Securities Guarantee Agreement to be
dated as of [__________, 1999] (the "Guarantee Agreement") between the Company
and the Trust Company, as guarantee trustee (the "Guarantee Trustee"). The
assets of the Trust will consist of _____% junior subordinated debentures due
__________, 2029 (the "Junior Subordinated Debentures") of the Company which
will be issued under the Indenture to be dated as of [__________, 1999] (the
"Indenture"), between the Company and the Trust Company, as trustee (the
"Indenture Trustee"). The Company has agreed to pay all costs, expenses and
liabilities of the Trust payable to third parties, with certain exceptions,
pursuant to the Agreement as to Expenses and Liabilities, dated as of
[__________, 1999], between the Company and the Trust (the "Expense Agreement").
Under certain circumstances, the Junior Subordinated Debentures will be
distributable to the holders of undivided beneficial interests in the assets of
the Trust. The entire proceeds from the sale of the Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
the Trust's common securities (the "Common Securities") and will be used by the
Trust to purchase an equivalent amount of the Junior Subordinated Debentures.
The initial public offering price for the Preferred Securities, the
purchase price to be paid by the Underwriter for the Preferred Securities, the
commission per Preferred Security to be paid by the Company to the Underwriter
and the rate of interest to be paid on the Preferred Securities shall be agreed
upon by the Company and the Underwriter, and such agreement shall be set forth
in a separate written instrument substantially in the form of Exhibit A hereto
(the "Price Determination Agreement"). The Price Determination Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Underwriter and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Preferred
Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Offerors have prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (File Nos.
333-86571 and 333-86571-01) covering the registration of the Preferred
Securities, the Guarantee and the Junior Subordinated Debentures under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such registration statement becomes effective is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto, at the
time it becomes effective, is herein called the "Registration Statement", and
the prospectus, included in the Registration Statement at the time it becomes
effective is herein called the "Prospectus", except that if any revised
prospectus provided to the Underwriter by the Company for use in connection with
the offering of the Preferred
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Securities differs from the prospectus included in the Registration Statement at
the time it becomes effective (whether or not such prospectus is required to be
filed pursuant to Rule 424(b) under the 1933 Act ("Rule 424(b)"), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first furnished to the Underwriter for such use.
The Company understands that the Underwriter proposes to make a public
offering of the Preferred Securities (the "Offering") as soon as possible after
the Registration Statement becomes effective. The Underwriter may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Preferred Securities.
Section 1. Representations and Warranties.
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(a) The Offerors jointly and severally represent and warrant to and agree
with the Underwriter that:
(i) The Company meets the requirements for use of Form S-1 under the
1933 Act and, when the Registration Statement on such form shall become
effective and at all times subsequent thereto up to the Closing Time referred to
below (and, with respect to the Option Securities, up to the Option Closing Date
referred to below), (A) the Registration Statement and any amendments and
supplements thereto will comply in all material respects with the requirements
of the 1933 Act and the rules and regulations of the Commission under the 1933
Act (the "1933 Act Regulations"); (B) neither the Registration Statement nor any
amendment or supplement thereto will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and (C) neither the Prospectus
nor any amendment or supplement thereto will include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Offerors by the Underwriter or its counsel expressly
for use in the Registration Statement or the Prospectus, or any information
contained in any Form T-1 which is an exhibit to the Registration Statement.
The statements contained under the caption "Underwriting" in the Prospectus
constitute the only information furnished to the Offerors in writing by the
Underwriter expressly for use in the Registration Statement or the Prospectus.
(ii) Grant Thornton LLP and Roth Murphy Sanford L.L.P., who are
reporting upon the audited financial statements included or incorporated by
reference in the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iii) The financial statements filed with the Commission as a part
of the Registration Statement and included in the Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries as of and at
the dates indicated and the results of their
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operations and cash flows for the periods specified. No other financial
statements or supporting schedules are required to be included in the
Registration Statement. The financial data set forth in the Prospectus under the
captions "Selected Consolidated Financial and Other Data" and "Our
Capitalization" fairly present the information set forth therein on a basis
consistent with that of the audited financial statements contained in the
Registration Statement. No pro forma financial information is required to be
included in the Registration Statement pursuant to Article 11 of Regulation S-X.
(iv) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Louisiana with corporate
power and authority under such laws to own, lease and operate its properties and
conduct its business as described in the Prospectus. The Company is duly
qualified to transact business as a foreign corporation and is in good standing
in each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(v) The Company is duly registered with the Board of Governors of
the Federal Reserve System as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act"); the deposit accounts of
Crescent Bank & Trust (the "Bank") are insured by the Bank Insurance Fund of the
Federal Deposit Insurance Corporation (the "FDIC"), up to the maximum allowable
limits thereof; and the Company has no active subsidiaries other than the Bank.
The Offerors have all such power, authority, authorization, approvals and orders
as may be required to enter into this Agreement, to carry out the provisions and
conditions hereof and to issue and sell the Preferred Securities and the Junior
Subordinated Debentures.
(vi) The Bank is a Louisiana-chartered commercial bank duly
organized, validly existing and in good standing under the laws of the State of
Louisiana with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the Prospectus;
the Bank is duly qualified to transact business as a foreign corporation and is
in good standing in each other jurisdiction in which it owns or leases property
of a nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise. All of the
outstanding shares of capital stock of the Bank have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by the
Company directly or indirectly.
(vii) Except for the Bank and the Trust, the Company does not have
any "significant subsidiaries" as defined in Rule 1-02 of Regulation S-X of the
Commission.
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(viii) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Prospectus under the caption "Our
Capitalization".
(ix) This Agreement has been duly authorized, executed and delivered
by the Offerors and, when duly executed by the Underwriter, will constitute a
valid and binding agreement of the Offerors enforceable against the Offerors in
accordance with its terms, except as enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally or the
rights of creditors of holding companies of insured depository institutions, (b)
general equity principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law, or (c) laws relating to the
safety and soundness of holding companies of insured depository institutions,
and except to the extent that the provisions of Section 6 may be unenforceable
as against public policy or under applicable law. The Guarantee Agreement, the
Junior Subordinated Debentures, the Trust Agreement, the Expense Agreement and
the Indenture have each been duly authorized and, when duly executed and
delivered by the Company and, in the case of the Guarantee, by the Guarantee
Trustee, in the case of the Trust Agreement, by the Trustees, and in the case of
the Indenture, by the Indenture Trustee, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
respective terms, except as the enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally or the
rights of creditors of holding companies of insured depository institutions, (b)
general equity principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law, or (c) laws relating to the
safety and soundness of holding companies of insured depository institutions.
The Junior Subordinated Debentures are entitled to the benefits of the
Indenture; and the Guarantee Agreement, the Junior Subordinated Debentures, the
Trust Agreement, the Expense Agreement and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus. The Trust Agreement, the
Guarantee Agreement and the Indenture have been duly qualified under the Trust
Indenture Act of 1939, as amended (the "TIA").
(x) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Act with the power
and authority to own, lease and operate its properties and conduct its business
as described in the Prospectus. The Trust has conducted no business to date,
and it will conduct no business in the future that would be inconsistent with
the description of the Trust set forth in the Prospectus. The Trust is not a
party to or bound by any agreement or instrument other than this Agreement, the
Trust Agreement and the agreements and instruments contemplated by the Trust
Agreement or described in the Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions contemplated by
this Agreement and the Trust Agreement and described in the Prospectus; and the
Trust is not a party to or subject to any action, suit or proceeding of any
nature.
(xi) The Preferred Securities have been duly and validly authorized by
the Trust for issuance and sale to the Underwriter pursuant to this Agreement
and, when executed and authenticated in accordance with the terms of the Trust
Agreement and delivered by the Trust to the
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Underwriter pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued, fully paid and non-assessable and will
constitute valid and legally binding obligations of the Trust enforceable in
accordance with their terms and entitled to the benefits provided by the Trust
Agreement. The Preferred Securities conform in all material respects to the
description thereof in the Prospectus, and such description conforms in all
material respects to the rights set forth in the instruments defining the same;
the holders of the Preferred Securities will be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware; and
the issuance of the Preferred Securities is not subject to any preemptive or
other similar rights.
(xii) The Common Securities have been duly and validly authorized
by the Trust and, upon delivery by the Trust to the Company against payment
therefor as described in the Prospectus, will be duly and validly issued and
fully paid undivided beneficial interests in the assets of the Trust and will
conform in all material respects to the description thereof in the Prospectus;
the issuance of the Common Securities is not subject to any preemptive or other
similar rights; and at the Closing Time, all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(xiii) The issuance and sale of the Preferred Securities and the
Common Securities by the Trust, the compliance by the Trust with all of the
provisions of this Agreement, the purchase of the Junior Subordinated Debentures
by the Trust, and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, the Trust Agreement or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Trust or any of its properties; and no consent, approval,
authorization, order, license, certificate, permit, registration or
qualification of or with any such court or other governmental agency or body is
required to be obtained by the Trust for the issue and sale of the Preferred
Securities and the Common Securities by the Trust, the purchase of the Junior
Subordinated Debentures by the Trust or the consummation by the Trust of the
transactions contemplated by this Agreement and the Trust Agreement, except for
such consents, approvals, authorizations, licenses, certificates, permits,
registrations or qualifications as have already been obtained, or as may be
required under the 1933 Act or the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations, state securities laws or the TIA.
(xiv) The issuance by the Company of the Guarantee and the Junior
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement, the execution, delivery and performance by the
Company of the Trust Agreement, the Junior Subordinated Debentures, the
Guarantee Agreement, the Expense Agreement and the Indenture, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, loan agreement,
mortgage, deed of trust or other material agreement or instrument to which the
Company or the Bank is a party or by which the Company or the Bank is bound or
to which any of the property or assets of the Company or the Bank is subject,
nor will such action result
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in any violation of the provisions of the Articles of Incorporation or by-laws
of the Company or the Bank or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company,
the Bank or any of their respective properties; and no consent, approval,
authorization, order, license, certificate, permit, registration or
qualification of or with any such court or other governmental agency or body is
required for the issue of the Guarantee and the Junior Subordinated Debentures
or the consummation by the Company of the other transactions contemplated by
this Agreement, except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already been
obtained, or as may be required under the 1933 Act or the 1933 Act Regulations,
the 1934 Act or the 1934 Act Regulations, state securities laws or the TIA.
(xv) The Trust has not engaged in any activity that would result in
the Trust being, and after giving effect to the offering and sale of the
Preferred Securities the Trust will not be, an "investment company", or an
entity "controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(xvi) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and non-
assessable.
(xvii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise stated
therein, there has not been (A) any material adverse change in the condition
(financial or otherwise), earnings, business affairs, assets or business
prospects of the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, (B) any transaction
entered into by the Company or any subsidiary, other than in the ordinary course
of business, that is material to the Company and its subsidiaries, considered as
one enterprise, or (C) any dividend or distribution of any kind declared, paid
or made by the Company on its capital stock, other than as described or
contemplated in the Prospectus. Neither the Company, the Bank nor any other
subsidiary has any material liability of any nature, contingent or otherwise,
except as set forth in the Prospectus.
(xviii) Neither the Company nor the Bank is in violation of any
provision of its articles of incorporation, charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which it is a party or by which it may
be bound or to which any of its properties may be subject, except for such
defaults that in the aggregate would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(xix) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the Company,
threatened against the Company, the Bank or any other subsidiary that is
required to be disclosed in the Prospectus or that could reasonably be
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expected to result in any material adverse change in the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, or that could
reasonably be expected materially and adversely to affect the properties or
assets of the Company and its subsidiaries, considered as one enterprise, or
that could reasonably be expected materially and adversely to affect the
consummation of the transactions contemplated in this Agreement; all pending
legal or governmental proceedings to which the Company, the Bank or any other
subsidiary is a party that are not described in the Prospectus, including
ordinary routine litigation incidental to its business, if decided in a manner
adverse to the Company, would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one enterprise.
(xx) There are no material contracts or documents of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described and
filed as required.
(xxi) Each of the Company and the Bank has good and marketable
title to all properties and assets described in the Prospectus as owned by it,
free and clear of all liens, charges, encumbrances or restrictions, except such
as (A) are described in the Prospectus or (B) are neither material in amount nor
materially significant in relation to the business of the Company and its
subsidiaries, considered as one enterprise; all of the leases and subleases
material to the business of the Company and its subsidiaries, considered as one
enterprise are in full force and effect, and neither the Company nor the Bank
has any notice of any material claim that has been asserted by anyone adverse to
the rights of the Company or the Bank under any such lease or sublease or
affecting or questioning the rights of such corporation to the continued
possession of the leased or subleased premises under any such lease or sublease.
(xxii) Each of the Company and the Bank owns, possesses or has
obtained all material governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations necessary to own or lease, as the
case may be, and to operate its properties and to carry on its business as
presently conducted, and neither the Company nor the Bank has received any
notice of any restriction upon, or any notice of proceedings relating to
revocation or modification of, any such licenses, permits, certificates,
consents, orders, approvals or authorizations.
(xxiii) No labor problem with the employees of the Company or the
Bank exists or, to the best knowledge of the Company, is imminent that could
materially adversely affect the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and the Bank, considered
as one enterprise, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or the Bank's principal
suppliers, contractors or customers that could reasonably be expected to
materially adversely affect the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and the Bank, considered
as one enterprise.
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(xxiv) Except as disclosed in the Prospectus, there are no persons
with registration or other similar rights to have any securities of the Company
registered pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act.
(xxv) Except as disclosed in the Prospectus, the Company and the
Bank own or possess all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets or other unpatented and/or
unpatentable proprietary or confidential information systems or procedures),
trademarks, service marks and trade names (collectively, "patent and proprietary
rights") currently employed by them in connection with the business now operated
by them except where the failure to own, possess or acquire such patent and
proprietary rights would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs, assets or business
prospects of the Company and its subsidiaries, considered as one enterprise.
Neither the Company nor the Bank has received any notice or is otherwise aware
of any infringement of or conflict with asserted rights of others with respect
to any patent or proprietary rights, and which infringement or conflict (if the
subject of any unfavorable decision, rule and refinement, singly or in the
aggregate) could reasonably be expected to result in any material adverse change
in the condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxvi) The Company and the Bank have filed all federal, state and
local income, franchise or other tax returns required to be filed and have made
timely payments of all taxes due and payable in respect of such returns, and no
material deficiency has been asserted with respect thereto by any taxing
authority.
(xxvii) The Preferred Securities have been approved for listing on
the American Stock Exchange.
(xxviii) Neither the Trust, the Company nor the Bank has taken or will
take, directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation, under the 1934 Act or otherwise, of the price of
the Preferred Securities.
(xxix) Neither the Company nor the Bank is or has been (by virtue
of any action, omission to act, contract to which it is a party or by which it
is bound, or any occurrence or state of facts whatsoever) in violation of any
applicable foreign, federal, state, municipal or local statutes, laws,
ordinances, rules, regulations and/or orders issued pursuant to foreign,
federal, state, municipal or local statutes, laws, ordinances, rules, or
regulations (including those relating to any aspect of banking, bank holding
companies, consumer credit, truth-in-lending, usury, currency transaction
reporting, occupational safety and health and equal employment practices)
heretofore or currently in effect, except such violations that have been fully
cured or satisfied without recourse or that in the aggregate will not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
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(xxx) Neither the Company nor the Bank has any agreement or
understanding with any person (A) concerning the future acquisition by the
Company or the Bank of a controlling interest in any entity or (B) concerning
the future acquisition by any person of a controlling interest in the Company or
the Bank, in either case that is required by the 1933 Act or the 1933 Act
Regulations to be disclosed by the Company that is not disclosed in the
Prospectus.
(b) Any certificate signed by any authorized officer of the Company or the
Bank and delivered to the Underwriter or to counsel for the Underwriter pursuant
to this Agreement shall be deemed a representation and warranty by the Company
to the Underwriter as to the matters covered thereby.
(c) There are no issues related to the Company's or the Bank's
preparedness for the Year 2000 that (i) are of a character required to be
described or referred to in the Registration Statement or Prospectus by the 1933
Act which have not been accurately described in the Registration Statement or
Prospectus or (ii) might reasonably be expected to result in any material
adverse change or that might materially affect their properties, assets or
rights. All internal computer systems and each Constituent Component (as defined
below) of those systems and all computer-related products and each Constituent
Component (as defined below) of those products of the Company and the Bank will
fully comply with Year 2000 Qualification Requirements by December 31, 1999.
"Year 2000 Qualification Requirements" means that the internal computer systems
and each Constituent Component (as defined below) of those systems and all
computer-related products and each Constituent Component of those products of
the Company and the Bank (i) have been reviewed to confirm that they store,
process (including sorting and performing mathematical operations, calculations
and computations), input and output data containing date and information
correctly regardless of whether the date contains dates and times before, on or
after January 1, 2000, (ii) have been designated to ensure date and time entry
recognition and calculations, and date data interface values that reflect the
century, (iii) accurately manage and manipulate data involving dates and times,
including single century formulas and multi-century formulas, and will not cause
an abnormal ending scenario within the application or generate incorrect values
or invalid results involving such dates, (iv) accurately process any date
rollover, and (v) accept and respond to two-digit year date input in a manner
that resolves any ambiguities as to the century. "Constituent Component" means
all software (including operating systems, programs, packages and utilities),
firmware, hardware, networking components, and peripherals provided as part of
the configuration. The Company has inquired of material vendors as to their
preparedness for the Year 2000 and has disclosed in the Registration Statement
or Prospectus any issues that might reasonably be expected to result in any
material adverse change.
(d) Each of the Company and the Bank is insured by recognized, financially
sound and reputable institutions with policies in such amounts and with such
deductibles and covering such risks as are generally deemed adequate and
customary for their businesses including, but not limited to, policies covering
real and property owned or leased by the Company and the Bank against theft,
damage, destruction, acts of vandalism and earthquakes, general liability and
directors and officers liability. The Company has no reason to believe that it
or the Bank will not be able (i) to renew its
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existing insurance coverage as and when such policies expire or (ii) to obtain
comparable coverage from similar institutions as may be necessary or appropriate
to conduct its business as now conducted and at a cost that would not result in
a material adverse change. Neither the Company nor the Bank has been denied any
insurance coverage which it has sought or for which it has applied.
(e) There are no business relationships or related-party transactions
involving the Company or the Bank or any other person required to be described
in the Prospectus which have not been described in the Prospectus as required.
(f) Neither the Company nor the Bank nor, to the best of the Company's
knowledge, any employee or agent of the Company or the Bank, has made any
contribution or other payment to any official of, or candidate for, any federal,
state or foreign office in violation of any law or of the character required to
be disclosed in the Prospectus.
(g) The Company is in compliance with all rules, laws and regulations
relating to the use, treatment, storage and disposal of toxic substances and
protection of health or the environment ("Environmental Laws") which are
applicable to its business, except where the failure to comply would not result
in a material adverse change, (ii) the Company has received no notice from any
governmental authority or third party of an asserted claim under Environmental
Laws, which claim is required to be disclosed in the Registration Statement and
the Prospectus, (iii) to the best of its knowledge, the Company will not be
required to make future material capital expenditures to comply with
Environmental Laws and (iv) no property which is owned, leased or occupied by
the Company has been designated as a Superfund site pursuant to the
Comprehensive Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. (S)9601, et seq.), or otherwise designated as a contaminated site under
applicable state or local law.
(h) The Company and the Bank and any "employee benefit plan" (as defined
under the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively, "ERISA"))
established or maintained by the Company, the Bank or their "ERISA Affiliates"
(as defined below) are in compliance in all material respects with ERISA.
"ERISA Affiliate" means, with respect to the Company or the Bank, any member of
any group of organizations described in Sections 414(b), (c), (m) or (o) of the
Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or the Bank is a
member. No "reportable event" (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any "employee benefit plan"
established or maintained by the Company, the Bank or any of their ERISA
Affiliates. No "employee benefit plan" established or maintained by the
Company, the Bank or any of their ERISA Affiliates, if such "employee benefit
plan" were terminated, would have any "amount of unfounded benefit liabilities"
(as defined under ERISA). Neither the Company, the Bank nor any of their ERISA
Affiliates has incurred or reasonably expects to incur any liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any
"employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code.
Each "employee benefit plan" established or maintained by the Company, the Bank
or any of their ERISA Affiliates that is intended to be qualified under Section
401(a) of the
11
Code is so qualified and nothing has occurred, whether by action
or failure to act, which would cause the loss of such qualification.
Section 2. Sale and Delivery to the Underwriter; Closing.
---------------------------------------------
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the Trust,
1,000,000 Initial Securities at the purchase price and terms set forth herein
and in the Price Determination Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
hereby grants an option to the Underwriter to purchase up to an additional
150,000 Preferred Securities in accordance with the terms set forth herein and
in the Price Determination Agreement. The option hereby granted will expire at
5:00 p.m. New York City time on the 30th day after the date the Registration
Statement is declared effective by the Commission (or at 5:00 p.m. New York City
time on the next business day following the 30th day if such 30th day is not a
business day) and may be exercised, on one occasion only, solely for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Securities upon notice by the Underwriter to the
Company setting forth the number of Option Securities as to which the
Underwriter is exercising the option and the time, date and place of payment and
delivery for the Option Securities. Such time and date of delivery (the "Option
Closing Date") shall be determined by the Underwriter but shall not be later
than five full business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined, nor earlier than the second
business day after the date on which the notice of the exercise of the option
shall have been given.
(b) Payment of the purchase price for, and delivery of certificates for,
the Initial Securities shall be made at the offices of Silver, Freedman & Taff,
L.L.P., or at such other place as shall be agreed upon by the Company and the
Underwriter, at 8:00 a.m. Central time on the third full business day after the
effective date of the Registration Statement, or at such other time not earlier
than three nor more than ten full business days thereafter as the Underwriter
and the Company shall determine (such date and time of payment and delivery
being herein called the "Closing Time"). In addition, in the event that any or
all of the Option Securities are purchased by the Underwriter, payment of the
purchase price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned office of Silver, Freedman & Taff, L.L.P.,
or at such other place as shall be agreed upon by the Company and the
Underwriter, on the Option Closing Date as specified in the notice from the
Underwriter to the Company. Payment for the Initial Securities and the Option
Securities, if any, shall be made to the Company by wire transfer of immediately
available funds, against delivery to the Underwriter for the account of the
Underwriter of Preferred Securities to be purchased by it.
(c) The Preferred Securities shall be issued in the form of one or more
fully registered global securities (the "Global Securities") in book-entry form
in such denominations and registered
12
in the name of the nominee of The Depository Trust Company ("DTC") or in such
names as the Underwriter may request in writing at least one business day before
the Closing Date or the Option Closing Date, as the case may be. The Global
Securities representing the Initial Securities or the Option Securities to be
purchased will be made available for examination by the Underwriter and counsel
to the Underwriter not later than 10:00 a.m. New York City time on the business
day prior to the Closing Time or the Option Closing Date, as the case may be.
Section 3. Certain Covenants of the Offerors. Each of the Offerors
---------------------------------
covenants jointly and severally with the Underwriter as follows:
(a) The Offerors will use their best efforts to cause the Registration
Statement to become effective and will notify the Underwriter immediately, and
confirm the notice in writing, (i) when the Registration Statement, or any post-
effective amendment to the Registration Statement, shall have become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request of the Commission to amend the Registration Statement or amend or
supplement the Prospectus or for additional information and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Preferred Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such purposes. The
Offerors will use every reasonable effort to prevent the issuance of any such
stop order or of any order preventing or suspending such use and, if any such
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the
Registration Statement or, if the Offerors have elected to rely upon Rule 430A
of the 1933 Act Regulations ("Rule 430A"), any amendment or supplement to the
Prospectus of which the Underwriter shall not previously have been advised and
furnished a copy, or to which the Underwriter or counsel for the Underwriter
shall reasonably object.
(c) The Offerors have furnished or will furnish to the Underwriter as many
signed and conformed copies of the Registration Statement as originally filed
and of each amendment thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith and signed copies of all consents and certificates of experts as the
Underwriter may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the Underwriter,
without charge, from time to time until the effective date of the Registration
Statement, as many copies of each preliminary prospectus as the Underwriter may
reasonably request, and the Offerors hereby consent to the use of such copies
for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be
delivered to the Underwriter, without charge, as soon as the Registration
Statement shall have become effective (or, if the Offerors have elected to rely
upon Rule 430A, as soon as practicable after the Price Determination Agreement
has been executed and delivered) and thereafter from time
13
to time as requested by the Underwriter during the period when the Prospectus is
required to be delivered under the 1933 Act, such number of copies of the
Prospectus (as supplemented or amended) as the Underwriter may reasonably
request.
(e) The Company will comply to the best of its ability with the 1933 Act
and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so
as to permit the completion of the distribution of the Preferred Securities as
contemplated in this Agreement and in the Prospectus. If, at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Preferred Securities, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Underwriter or counsel for the Offerors, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading, in the light
of the circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b) hereof, such amendment or supplement as may be necessary
to correct such untrue statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with the
Underwriter, to qualify the Preferred Securities and the Junior Subordinated
Debentures, for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Underwriter may designate and to maintain
such qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that the
-------- -------
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Preferred Securities have been
qualified as above provided.
(g) The Company will make generally available (within the meaning of Rule
158 of the 1933 Act Regulations ("Rule 158") to its securityholders and the
Underwriter as soon as practicable, but not later than 90 days after the close
of the period covered thereby, an earnings statement of the Company and its
subsidiaries (in form complying with the provisions of Rule 158) covering a
period of at least 12 months beginning after the effective date of the
Registration Statement but not later than the first day of the Company's fiscal
quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the issuance by the
Trust to the Company of the Trust's Common Securities, to purchase an equivalent
amount of Junior Subordinated Debentures from the Company. The Company and the
Bank will use the net proceeds received by them from the sale of
14
the Junior Subordinated Debentures in the manner specified in the Prospectus
under the caption "How Our Net Proceeds Will Be Used".
(i) The Offerors, during the period when a prospectus is required by the
1933 Act to be delivered in connection with sales of Preferred Securities, will
file promptly all documents required to be filed with the Commission pursuant to
Section 13 or 14 of the 1934 Act subsequent to the time the Registration
Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will
furnish to the corporate finance, syndicate and research departments of the
Underwriter copies of the nonconfidential portion of each of the quarterly,
annual and other reports filed by the Company with the Commission and such other
documents, reports, proxy statements and information as shall be furnished by
the Company to its stockholders generally.
(k) The Company will provide to the holders of the Preferred Securities
annual reports containing financial statements audited by the Company's
independent auditors and, upon written request, the Company's annual reports on
Form 10-K.
(l) The Company will use its best efforts on a commercially reasonable
basis to continue to engage independent auditors that have a nationwide
practice.
(m) The Offerors will file with the American Stock Exchange all documents
and notices required by the American Stock Exchange of companies that have
issued securities that are traded on the American Stock Exchange, and quotations
for which are reported by the American Stock Exchange. The Offerors also agree
to continue to list the Preferred Securities on the American Stock Exchange as
long as such securities qualify for the listing.
(n) The Company shall pay the reasonable legal fees and related filing fees
of Silver, Freedman & Taff, L.L.P. to prepare one or more "blue sky" surveys
(each, a "Blue Sky Survey") for use in connection with the offering of the
Preferred Securities as contemplated by the Prospectus and a copy of such Blue
Sky Survey or surveys shall be delivered to each of the Company and the
Underwriter.
(o) If, at the time the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A, then
the Offerors will prepare, and file or transmit for filing with the Commission
in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus
or, if required by Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus) containing all information so
omitted.
(p) The Company will, at its expense, subsequent to the issuance of the
Preferred Securities, prepare and distribute to the Underwriter and counsel to
the Underwriter, a bound volume containing copies of the documents used in
connection with the issuance of the Preferred Securities.
15
(q) The Offerors will not, prior to the Option Closing Date or thirty (30)
days after the date of this Agreement, whichever occurs first, incur any
material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, or any
transaction with a related party which is required to be disclosed in the
Prospectus pursuant to Item 404 of Regulation S-K of the Commission, except as
contemplated by the Prospectus.
(r) During a period of ninety (90) days from the date of the Prospectus,
neither the Trust nor the Company will, without the prior written consent of the
Underwriter, directly or indirectly, offer, sell, offer to sell, or otherwise
dispose of any Preferred Securities, any other beneficial interests in the
assets of the Trust, or any preferred securities or other securities of the
Trust or the Company that are substantially similar to the Preferred Securities,
including any guarantee of such securities. The foregoing sentence shall not
apply to any of the Preferred Securities to be sold hereunder.
(s) The Company agrees not to declare or pay dividends on, or purchase,
redeem or acquire for value any shares of its common stock, return any capital
to holders of the common stock, or make any distribution of assets to the
holders of the common stock, unless, from and after the date of any such
dividend declaration (a "Declaration Date") or date of any such purchase,
redemption, payment or distribution specified above (a "Redemption Date"), the
Company retains cash, cash equivalents or marketable securities at the Company
in an amount sufficient to pay the eight consecutive quarterly interest payments
on the Junior Subordinated Debentures next following such Declaration Date or
Redemption Date, unless this would prevent proceeds from counting as Tier 1
capital.
(t) The Company will pay dividends to its common shareholders in accordance
with all applicable federal and state laws, regulations and policy statements.
(u) The Company will maintain the debt of the Company on a parent only
basis at an amount which complies with all applicable federal and state laws,
regulations and policy statements.
(v) For a period of five years from the date of the Closing Time, the
Company will provide a bonus to Gary N. Solomon that is principally based on
performance-based criteria.
Section 4. Payment of Expenses.
-------------------
(a) The Offerors jointly and severally will pay and bear all costs and
expenses incident to the performance of its and the Trust's obligations under
this Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, all amendments thereto, all preliminary
prospectuses, the Prospectus and any amendments or supplements thereto, and the
cost of furnishing copies thereof to the Underwriter, (b) the preparation,
printing and distribution of this Agreement, the Preferred Securities and the
Blue Sky Survey, (c) the issuance and delivery of the Preferred Securities to
the Underwriter, including any transfer taxes payable upon the sale of the
Preferred Securities to the
16
Underwriter, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the American Stock Exchange filing fees, (f) fees and
disbursements of counsel in connection with the Blue Sky Survey, (g) the
qualification of the Preferred Securities under the applicable securities laws
in accordance with Section 3(f) hereof, (h) any filing fee for review of the
Offering with the National Association of Securities Dealers, LLC, (i) the legal
fees and expenses of the Underwriter's counsel, and general out-of-pocket
expenses of the Underwriter not to exceed $75,000 in legal fees and $20,000 in
other expenses without the Company's prior written consent, (j) the fees and
expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee, in connection with the Indenture and the
Junior Subordinated Debentures; (k) the fees and expenses of the Property
Trustee and Delaware Trustee, including the fees and disbursements of counsel
for the Property Trustee and Delaware Trustee, in connection with the Trust
Agreement and the Certificate of Trust, and (l) all other costs incident to the
performance of the Offerors' obligations hereunder.
(b) If (i) the Closing Time does not occur on or before __________, 1999,
(ii) the Company abandons or terminates the Offering, or (iii) this Agreement is
terminated by the Underwriter in accordance with the provisions of Section 5 or
9(a), the Company shall reimburse the Underwriter for its reasonable out-of-
pocket expenses, as set forth in this Section 4, including the reasonable fees
and disbursements of counsel for the Underwriter.
Section 5. Conditions of Underwriter's Obligations. The obligations of the
---------------------------------------
Underwriter to purchase and pay for the Preferred Securities that it has agreed
to purchase pursuant to this Agreement are subject to the following further
conditions:
(a) The Registration Statement shall have become effective not later than
4:00 p.m., New York City time, on the first business day following the date
hereof, or at such later time or on such later date as the Underwriter may agree
to in writing; at the Closing Time, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall be pending or, to the Underwriter's knowledge
or the knowledge of the Offerors, shall be contemplated by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the satisfaction of counsel for the Underwriter. If the
Offerors have elected to rely upon Rule 430A, a prospectus containing the
information required by Rule 430A shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) At the Closing Time, the Underwriter shall have received:
(i) The favorable opinion, dated as of the Closing Time, of Elias,
Matz, Tiernan & Herrick, L.L.P., counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriter, substantially in the
form set forth in Exhibit B.
17
(ii) The favorable opinion, dated as of the Closing Time, of
Richards, Layton & Finger, P.A., special Delaware counsel for the Offerors, in
form and substance satisfactory to counsel for the Underwriter, substantially in
the form set forth in Exhibit C.
(iii) The favorable opinion, dated as of the Closing Time, of
Richards, Layton & Finger, P.A., counsel for the Indenture Trustee and the
Delaware Trustee, in form and substance satisfactory to counsel for the
Underwriter, substantially in the form set forth in Exhibit D.
(iv) The favorable opinion, dated as of the Closing Time, of Silver,
Freedman & Taff, L.L.P., counsel for the Underwriter, in form and substance
satisfactory to the Underwriter.
In rendering such opinions, such counsel may rely as to matters of fact on
certificates of executive officers, directors or trustees of the Company, the
Bank or the Trust and certificates of public officials. Such counsel may assume
that any agreement is the valid and binding obligation of any parties to such
agreement other than the Company, the Bank and the Trust. Such opinions may be
governed by, and interpreted in accordance with, the Legal Opinion Accord
("Accord") of the American Bar Association Section of Business Law (1991), and,
as a consequence, references in such opinion to such counsel's "Actual
Knowledge" shall be as such term is defined in the Accord. The opinion of Elias,
Matz, Tiernan & Herrick L.L.P. shall be limited to matters governed by federal
banking and securities laws and regulations and the State of Louisiana Business
Corporation Law, and the opinion of Richards, Layton & Finger, P.A. shall be
limited to Delaware law. With respect to matters involving the application of
other laws, such counsel may rely, to the extent it deems proper and as
specified in its opinion, upon the opinion of local counsel satisfactory to the
Underwriter's counsel. For purposes of such opinions, no proceeding shall be
deemed to be pending, no order or stop order shall be deemed to be issued, and
no action shall be deemed to be instituted unless, in each case, a director,
executive officer or trustee of the Company, the Bank or the Trust, or its
counsel, shall have received a copy of such proceeding, order, stop order or
action. Such opinions may be limited to statutes, regulations and judicial
interpretations and to facts as they exist as of the date of such opinions. In
rendering such opinions, such counsel need assume no obligation to revise or
supplement it should such statutes, regulations and judicial interpretations be
changed by legislative or regulatory action, judicial decision or otherwise.
Such counsel need express no view, opinion or belief with respect to whether any
proposed or pending legislation, if enacted, or any proposed or pending
regulations or policy statements issued by any regulatory agency, whether or not
promulgated pursuant to any such legislation, would affect the validity of the
execution and delivery by the Company and the Trust of this Agreement or the
issuance of the Preferred Securities.
(c) At the Closing Time and again at the Option Closing Date, (i) the
Registration Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and shall conform in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations, the Offerors shall have complied in all material respects with Rule
430A (if they shall have elected to rely thereon), and neither the Registration
Statement nor the Prospectus, as they may
18
then be amended or supplemented, shall contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; (ii) there shall not have been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business; (iii) no action, suit or proceeding
at law or in equity shall be pending or, to the knowledge of the Offerors,
threatened against the Company or any subsidiary or the Trust that would be
required to be set forth in the Prospectus that is not set forth therein, and no
proceedings shall be pending or, to the knowledge of the Offerors, threatened
against either of the Offerors or any subsidiary of the Company before or by any
federal, state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding would materially adversely affect the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise, other than as set forth in the Prospectus; (iv) each of the Offerors
shall have complied, in all material respects, with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time or Option Closing Date, as applicable; (v) the other
representations and warranties of the Offerors set forth in Section l(a) hereof
shall be accurate in all material respects as though expressly made at and as of
the Closing Time or Option Closing Date, as applicable; and (vi) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose been initiated or, to the knowledge of
the Offerors, threatened by the Commission. At the Closing Time, the Underwriter
shall have received a certificate of the Chairman of the Board and Chief
Executive Officer and the Chief Financial Officer of the Company, dated as of
the Closing Time, to such effect.
(d) At the time that this Agreement is executed by the Company, the
Underwriter shall have received from Grant Thornton LLP and Roth Murphy Sanford
L.L.P., letters, dated such date, in form and substance satisfactory to the
Underwriter, confirming that they are independent certified public accountants
with respect to the Company within the meaning of the 1933 Act and the 1933 Act
Regulations, and stating in effect that with respect to the Company:
(i) in Grant Thornton LLP's opinion, the consolidated financial
statements as of December 31, 1998 and for the year then ended and in Roth
Murphy Sanford L.L.P.'s opinion, the consolidated financial statement as of
December 31, 1997 and for the years ended December 31, 1997 and 1996, and the
related financial statement schedules, if any, included in the Registration
Statement and the Prospectus and covered by their respective opinions included
therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations;
(ii) in Grant Thornton LLP's letter, on the basis of procedures (but
not an audit in accordance with generally accepted accounting standards)
specified by the American Institute of Certified Public Accountants for a review
of interim financial information as described in SAS No. 71, Interim Financial
-----------------
Information, including a reading of the latest available interim consolidated
- -----------
financial statements of the Company, a reading of the minutes of all meetings of
the Board of
19
Directors of the Company and the Bank and of the Audit Committee of the Board of
Directors of the Bank since January 1, 1999, inquiries of certain officials of
the Company and the Bank responsible for financial and accounting matters, and
such other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited interim consolidated financial information
included in the Prospectus, if any, do not comply as to form in all material
respects with applicable accounting requirements of the 1933 Act, or are not
presented in conformity with generally accepted accounting principles applied on
a basis consistent with that of the audited financial statements included in the
Prospectus;
(B) at a specified date not more than three days prior to the
date of this Agreement, there was any increase in long-term debt or Federal Home
Loan Bank advances of the Company and its consolidated subsidiaries or any
decrease in total assets, total deposits or stockholders' equity of the Company
and its consolidated subsidiaries, any increase in the number of outstanding
shares of capital stock of the Company and its consolidated subsidiaries or any
decrease in loan loss allowance of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in the financial
statements at December 31, 1998 included in the Registration Statement, except
in all cases for changes, increases or decreases that the Registration Statement
discloses have occurred or may occur; or
(C) for the period from January 1, 1999 to a specified date not
more than three days prior to the date of this Agreement, there was any decrease
in consolidated net interest income, net income or net income per share, in each
case as compared with a period of comparable length in the preceding year,
except in all cases for increases or decreases that the Registration Statement
discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in clause (ii)
above, Grant Thornton LLP shall have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages, numerical
data and financial information appearing in the Registration Statement
(including the Selected Consolidated Financial Data) (having compared such items
with, and have found such items to be in agreement with, the financial
statements of the Company or general accounting records of the Company, as
applicable, which are subject to the Company's internal accounting controls or
other data and schedules prepared by the Company from such records).
(e) At the Closing Time, the Underwriter shall have received from Grant
Thornton LLP a letter, in form and substance satisfactory to the Underwriter and
dated as of the Closing Time, reaffirming the statements made in their letter
furnished pursuant to Section 5(d) hereof, except that the inquiries specified
in Section 5(d) hereof shall be made based upon the latest available unaudited
interim consolidated financial statements and the specified date referred to
shall be a date not more than three days prior to the Closing Time.
20
(f) At the Closing Time, counsel for the Underwriter shall have been
furnished with all such documents, certificates and opinions as they may request
for the purpose of enabling them to pass upon the issuance and sale of the
Preferred Securities as contemplated in this Agreement and the matters referred
to in Section 5(c) hereof and in order to evidence the accuracy and completeness
of any of the representations, warranties or statements of the Offerors, the
performance of any of the covenants of the Offerors or the fulfillment of any of
the conditions herein contained; and all proceedings taken by the Company at or
prior to the Closing Time in connection with the authorization, issuance and
sale of the Preferred Securities and the Junior Subordinated Debentures as
contemplated in this Agreement shall be satisfactory in form and substance to
the Underwriter and to counsel for the Underwriter.
(g) The Company shall have paid, or made arrangements satisfactory to the
Underwriter for the payment of, all such expenses as may be required by Section
4 hereof.
(h) In the event the Underwriter exercises its option provided in Section
2 hereof to purchase all or any portion of the Option Securities, the
obligations of the Underwriter to purchase the Option Securities that it has
agreed to purchase shall be subject to the receipt by the Underwriter on the
Option Closing Date of:
(i) A certificate, dated the Option Closing Date, of the Chairman of
the Board and Chief Executive Officer and the Chief Financial Officer of the
Company confirming that the certificate delivered at the Closing Time pursuant
to Section 5(c) hereof remains true as of the Option Closing Date;
(ii) The favorable opinion of Elias, Matz, Tiernan & Herrick L.L.P.,
counsel for the Company, addressed to the Underwriter and dated the Option
Closing Date, in form satisfactory to counsel to the Underwriter, relating to
the Option Securities and otherwise to the same effect as the opinion required
by Section 5(b)(i) hereof;
(iii) The favorable opinion of Richards, Layton & Finger, P.A. special
Delaware counsel for the Offerors, addressed to the Underwriter and dated the
Option Closing Date, in form satisfactory to counsel to the Underwriter,
relating to the Option Securities and otherwise to the same effect as the
opinion required by Section 5(b)(ii) hereof;
(iv) The favorable opinion of Richards, Layton & Finger, P.A.,
counsel for the Indenture Trustee and Delaware Trustee, addressed to the
Underwriter and dated the Option Closing Date, in form satisfactory to counsel
to the Underwriter, relating to the Option Securities and otherwise to the same
effect as the opinion required by Section 5(b)(iii) hereof;
(v) The favorable opinion of Silver, Freedman & Taff, L.L.P., counsel
to the Underwriter, dated the Option Closing Date, relating to the Option
Securities and otherwise to the same effect as the opinion required by Section
5(b)(iv) hereof; and
21
(vi) Letter from Grant Thornton LLP addressed to the Underwriter and
dated the Option Closing Date, in form and substance satisfactory to the
Underwriter and substantially the same in form and substance as the letter
furnished to the Underwriter pursuant to Section 5(e) hereof.
(i) The Preferred Securities, the Guarantee and the Junior Subordinated
Debentures shall have been qualified or registered for sale, or subject to an
available exemption from such qualification or registration, under the Blue Sky
or securities laws of such jurisdictions as shall have been reasonably specified
by the Underwriter, and the Offering contemplated by this Agreement shall have
been cleared by the NASD.
(j) If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement, this Agreement may
be terminated by the Underwriter on notice to the Offerors at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party, except as provided in Section 4 of this Agreement.
Notwithstanding any such termination, the provisions of Sections 4, 6, 10 and 12
of this Agreement shall remain in effect.
Section 6. Indemnification.
---------------
(a) The Offerors jointly and severally agree to indemnify and hold
harmless the Underwriter, each officer, director or employee of the Underwriter,
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any loss,
liability, claim, damage and expense whatsoever (which shall include, but not be
limited to, amounts incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation, provided such settlement is entered into with the consent of the
Offerors as provided herein), as and when incurred, arising out of, based upon
or in connection with (i) any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, contained in (A) any preliminary prospectus, the Registration
Statement or the Prospectus (as from time to time amended and supplemented), or
any amendment or supplement thereto or (B) in any application or other document
or communication (collectively called an "application") executed by or on behalf
of the Company or the Trust or based upon written information furnished by or on
behalf of the Company or the Trust filed in any jurisdiction in order to qualify
the Preferred Securities under the "blue sky" or securities laws thereof or
filed with the Commission, the American Stock Exchange or any securities
exchange, unless such statement or omission or alleged statement or omission was
made in reliance upon and in conformity with written information concerning the
Underwriter, the Underwriting Agreement or the compensation of the Underwriter
furnished to the Offerors by or on behalf of the Underwriter expressly for
inclusion in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or in any application, as
the case may be, or (ii) any breach of any representation, warranty, covenant or
agreement of the Offerors contained in the Underwriting Agreement. The foregoing
indemnification with respect to any preliminary prospectus shall not
22
inure to the benefit of the Underwriter (or its directors, officers, employees
and controlling persons within the meaning of the federal securities laws) if
the person asserting any such losses, liabilities, claims, damages or expenses
against the Underwriter (or such other persons) purchased Preferred Securities
and a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of the Underwriter to such person in connection with the
written confirmation of the sale of such Preferred Securities to such person and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, liability, claim, damage or expense, provided that the
Company delivered the Prospectus, as amended or supplemented, to the Underwriter
on a timely basis to permit such delivery or sending. For purposes of this
section, the term "expense" shall include, but not be limited to, counsel fees
and costs, court costs, out-of-pocket costs and compensation for the time spent
by any of the Underwriter's directors, officers, employees and counsel according
to his or her normal hourly billing rates. The indemnification provisions shall
also extend to all directors, officers, employees and controlling persons of
each affiliate of the Underwriter.
(b) The Underwriter agrees to indemnify and hold harmless each of the
Offerors, each of their directors or trustees, each officer who signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) above, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or any application in
reliance upon and in conformity with written information about the Underwriter,
the Underwriting Agreement or the compensation of the Underwriter, furnished to
either of the Offerors by the Underwriter or its counsel expressly for inclusion
in such preliminary prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or in any application.
(c) An indemnified party shall give prompt notice to each indemnifying
party if any action, suit, proceeding or investigation is commenced in respect
of which indemnity may be sought hereunder, but failure to notify an
indemnifying party shall not relieve the indemnifying party from its obligations
to indemnify hereunder, except to the extent that the indemnifying party has
been prejudiced in any material respect by such failure. If it so elects within
a reasonable time after receipt of such notice, an indemnifying party may assume
the defense of such action, including the employment of counsel satisfactory to
the indemnified parties and the payment of all expenses of the indemnified party
in connection with such action. Such indemnified party or parties shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action
or the indemnifying party shall not have promptly employed counsel satisfactory
to such indemnified party or parties or such indemnified party or parties shall
have reasonably concluded that there may be one or more legal defenses available
to it or them or to other indemnified parties that are different from or
additional to those available to one or more of the
23
indemnifying parties, in any of which events such fees and expenses shall be
borne by the indemnifying party and the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties; it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (except in the event of a conflict or
potential conflict of interest between or among indemnified parties) separate
from their own counsel at any time and for all such indemnified parties and
controlling persons, which firm shall be designated in writing by the
indemnified party. The Offerors shall be jointly and severally liable for any
settlement of any claim against the Underwriter (or any of its directors,
officers, employees or controlling persons) made with the Offerors' written
consent, which consent shall not be unreasonably withheld. The Offerors shall
not, without the written consent of the Underwriter, settle or compromise any
claim against them based upon circumstances giving rise to an indemnification
claim against the Offerors hereunder unless such settlement or compromise
provides that the Underwriter and the other indemnified parties shall be
unconditionally and irrevocably released from all liability in respect to such
claim.
(d) In order to provide for just and equitable contribution, if a claim for
indemnification pursuant to these indemnification provisions is made but it is
found in a final judgment by a court that such indemnification may not be
enforced in such case, even though the express provisions hereof provide for
indemnification in such case, then the Offerors, on the one hand, and the
Underwriter, on the other hand, shall contribute to the amount paid or payable
by such indemnified persons as a result of such loss, liability, claim, damage
and expense in such proportion as is appropriate to reflect the relative
benefits received by the Offerors, on the one hand, and the Underwriter, on the
other hand, from the underwriting, and also the relative fault of the Offerors,
on the one hand, and the Underwriter, on the other hand, in connection with the
statements, acts or omissions which resulted in such loss, liability, claim,
damage and expense, and any other relevant equitable considerations. No person
found liable for a fraudulent misrepresentation or omission shall be entitled to
contribution from any person who is not also found liable for such fraudulent
misrepresentation or omission. Notwithstanding the foregoing, the Underwriter
shall not be obligated to contribute any amount hereunder that exceeds the
amount of the underwriting commission paid to the Underwriter with respect to
the Preferred Securities purchased by the Underwriter.
(e) The indemnity and contribution agreements contained herein are in
addition to any liability which the Offerors may otherwise have to the
Underwriter.
(f) Neither termination nor completion of the engagement of the Underwriter
nor any investigation made by or on behalf of the Underwriter shall affect the
indemnification obligations of the Offerors or the Underwriter hereunder, which
shall remain and continue to be operative and in full force and effect.
24
Section 7. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
The representations, warranties, indemnities, agreements and other
statements of the Offerors or their officers or trustees set forth in or made
pursuant to this Agreement will remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Offerors or the
Underwriter or any controlling person and will survive delivery of and payment
for the Preferred Securities, except that the representations and warranties
shall not speak as of any date subsequent to the Closing Date or the Option
Closing Date, as the case may be.
Section 8. Offering by the Underwriter.
---------------------------
The Offerors are advised by the Underwriter that the Underwriter proposes
to make a public offering of the Preferred Securities, on the terms and
conditions set forth in the Registration Statement from time to time as and when
the Underwriter deems advisable after the Registration Statement becomes
effective. Because the NASD is expected to view the Preferred Securities as
interests in a direct participation program, the offering of the Preferred
Securities is being made in compliance with the applicable provisions of Rule
2810 of the NASD's Conduct Rules.
Section 9. Termination of Agreement.
------------------------
(a) The Underwriter may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis, the effect of which on the financial markets of the United States is
such as to make it, in the Underwriter's judgment, impracticable to market the
Preferred Securities or enforce contracts for the sale of the Preferred
Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the American Stock
Exchange, or if trading generally on the New York Stock Exchange or in the over-
the-counter market has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by such exchange or by order of the Commission, the American Stock Exchange or
any other governmental authority with appropriate jurisdiction over such
matters, or (iv) if a banking moratorium has been declared by either federal or
Louisiana authorities, or (v) if there shall have been such material and
substantial change in the market for securities in general or in political,
financial or economic conditions as in the Underwriter's judgment makes it
inadvisable to proceed with the offering, sale and delivery of the Preferred
Securities on the terms contemplated by the Prospectus, or (vi) if the
Underwriter reasonably determines (which determination shall be in good faith)
that there has not been satisfactory disclosure of all relevant financial
information relating to the Offerors in the Offerors' disclosure documents and
that the sale of the Preferred Securities is inadvisable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4 hereof.
25
Notwithstanding any such termination, the provisions of Sections 4, 6, 10 and 12
hereof shall remain in effect.
Section 10. Notices.
-------
All notices and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given if delivered, mailed or
transmitted by any standard form of telecommunication. Notices shall be
addressed as follows:
If to the Underwriter:
Ryan, Beck & Co., Inc.
220 South Orange Avenue
Livingston, New Jersey 07039
Attention: Bruce G. Miller, Senior Vice President
with a copy to:
Silver Freedman & Taff
1100 New York Avenue
Washington, D.C. 20005-3934
Attention: James S. Fleischer, P.C.
If to the Company or the Trust:
CB&T Holding Company
1100 Poydras Street, Suite 100
New Orleans, Louisiana 70112
Attention: Paul R. Trapani, Jr., Executive Vice President
with a copy to:
Elias, Matz, Tiernan & Herrick L.L.P.
734 15/th/ Street, N.W., 8/th/ Floor
Washington, D.C. 20005
Attention: Gerald F. Heupel, Jr., Esq.
Section 11. Parties.
-------
This Agreement is made solely for the benefit of the Underwriter, and the
officers, directors, employees, agents and legal counsel of the Underwriter
specified in Section 6 hereof, the Trust and the Company and, to the extent
expressed, any person controlling the Trust, the Company or the Underwriter, and
the directors of the Company, or trustees of the Trust, their respective
officers who have signed the Registration Statement, and their respective
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement.
26
The term "successors and assigns" shall not include any purchaser, as such
purchaser, from the underwriter of the Preferred Securities.
SECTION 12. ARBITRATION.
-----------
Any claims, controversies, demands, disputes or differences between or
among the parties hereto or any persons bound hereby arising out of, or by
virtue of, or in connection with, or otherwise relating to this Agreement shall
be submitted to and settled by arbitration conducted in New York, New York
before one or three arbitrators, each of whom shall be knowledgeable in the
field of securities law and investment banking. Such arbitration shall be
conducted in accordance with the rules then obtaining of the American
Arbitration Association. The parties hereto agree to share equally the
responsibility for all fees of the arbitrators, abide by any decision rendered
as final and binding and waive the right to appeal the decision or otherwise
submit the dispute to a court of law for a jury or non-jury trial. The parties
hereto specifically agree that neither party may appeal or subject the award or
decision of any such arbitrator to appeal or review in any court of law or in
equity or in any other tribunal, arbitration system or otherwise. Judgment upon
any award granted by such arbitrator may be enforced in any court having
jurisdiction thereof.
SECTION 13. GOVERNING LAW.
-------------
This Agreement shall be governed by the laws of the State of New Jersey.
SECTION 14. COUNTERPARTS.
------------
This Agreement may be executed in one or more counterparts, and when a
counterpart has been executed by each party, all such counterparts taken
together shall constitute one and the same agreement.
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement between the Company and the Underwriter in
accordance with its terms.
Very truly yours,
CRESCENT CAPITAL TRUST I
By:____________________________________
Name: Paul R. Trapani, Jr.
Title: Administrative Trustee
CB&T HOLDING CORPORATION
By:____________________________________
Name: Gary N. Solomon
Title: Chief Executive Officer
Confirmed and accepted as of
the date first above written:
RYAN, BECK & CO., INC.
By:________________________________
Name: Bruce G. Miller
Title: Senior Vice President
28
EXHIBIT A
---------
CRESCENT CAPITAL TRUST I
(a Delaware business trust)
1,000,000 Preferred Securities
_____% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Preferred Security)
PRICE DETERMINATION AGREEMENT
-----------------------------
__________, 1999
Ryan, Beck & Co., Inc.
220 South Orange Avenue
Livingston, New Jersey 07039
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated the date hereof (the
"Underwriting Agreement"), among Crescent Capital Trust I, a Delaware business
trust (the "Trust"), CB&T Holding Company, a Louisiana corporation (the
"Company" and, together with the Trust, the "Offerors"), and Ryan, Beck & Co.,
Inc. (the "Underwriter"). The Underwriting Agreement provides for the purchase
by the Underwriter from the Trust, subject to the terms and conditions set forth
therein, of 1,000,000 of the ____% Cumulative Trust Preferred Securities of the
Trust (the "Preferred Securities"), subject to the Underwriter's option to
purchase up to an additional 150,000 Preferred Securities (to cover over-
allotments, if any). This Agreement is the Price Determination Agreement
referred to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Offerors agree
with the Underwriter as follows:
1. The public offering price per Preferred Security shall be $10.
2. The purchase price for the Preferred Securities to be paid by the
Underwriter shall be $10 per Preferred Security.
3. The commission per Preferred Security to be paid by the Company to the
Underwriter for its commitment hereunder shall be $______ per Preferred
Security.
4. The distribution rate on the Preferred Securities shall be ____% per
annum.
The Offerors represent and warrant to the Underwriter that the
representations and warranties of the Offerors set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of New Jersey.
If the foregoing is in accordance with the understanding of the Underwriter
of the agreement between the Underwriter and the Offerors, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts and together with the Underwriting Agreement, shall be a
binding agreement between the Underwriter and the Offerors in accordance with
its terms and the terms of the Underwriting Agreement.
Very truly yours,
CRESCENT CAPITAL TRUST I
By: CB&T Holding Corporation Depositor
By:_______________________________________
Name: Paul R. Trapani, Jr.
Title: Administrative Trustee
CB&T HOLDING CORPORATION
By:_______________________________________
Name: Gary N. Solomon
Title: Chief Executive Officer
Confirmed and accepted as of
the date first above written:
RYAN, BECK & CO., INC.
By: _____________________________
Name: Bruce G. Miller
Title: Senior Vice President
2
EXHIBIT B
---------
The opinion of counsel to the Company to be delivered pursuant to Section
5(b)(i) of the Underwriting Agreement shall be substantially to the effect that:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Louisiana, with requisite corporate power and authority
to own, lease and operate its properties and conduct its business as described
in the Registration Statement and is registered as a bank holding company under
the Bank Holding Company Act. The Bank is a Louisiana-chartered commercial bank
duly organized and validly existing under the laws of the State of Louisiana,
with requisite power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement.
2. The Company and the Bank are duly qualified to transact business as
foreign corporations under the corporation laws of each jurisdiction in which
the Company or the Bank, as the case may be, owns or leases property of a
nature, has an office or transacts business of a type that would make such
qualification necessary, except where the failure so to qualify would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
3. The deposit accounts of the Bank are insured by the Bank Insurance
Fund of the Federal Deposit Insurance Corporation up to the maximum amount
allowable by law, and, to such counsel's Actual Knowledge, no proceedings for
the termination or revocation of such membership or insurance are pending or
threatened.
4. All of the issued and outstanding shares of capital stock of the Bank
have been duly and validly authorized and issued and are fully paid and
nonassessable and, to such counsel's Actual Knowledge, are owned by the Company.
5. The authorized and outstanding capital stock of the Company as of the
date indicated is as set forth in the Prospectus under the heading "Our
Capitalization".
6. The Company has full corporate power and authority to execute, deliver
and perform the Underwriting Agreement and to issue the Junior Subordinated
Debentures as contemplated by the Prospectus; the Underwriting Agreement has
been duly authorized, executed and delivered by the Company; and assuming the
due authorization, execution and delivery thereof by the Trust and the
Underwriter, the Underwriting Agreement constitutes a legal, valid, and binding
obligation of each of the Company and the Trust, enforceable against each of the
Company and the Trust in accordance with its terms, except as enforceability of
the Underwriting Agreement may be limited by (a) bankruptcy, insolvency,
receivership, fraudulent transfer, reorganization, moratorium or similar laws
relating to or affecting the enforcement of creditors' rights generally or the
rights of creditors of holding companies of insured depository institutions, (b)
general equity principles, including those limiting the right to specific
performance or other equitable relief, regardless of whether such enforceability
is considered in a proceeding in equity or at law, or (c) laws relating to the
safety and soundness of holding companies of insured depository institutions,
and except to the
extent that the provisions of Section 6 of the Underwriting Agreement may be
unenforceable as against public policy or under applicable law, as to which no
opinion is expressed.
7. The Trust Agreement has been duly authorized, executed and delivered
by the Company.
8. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
receivership, fraudulent transfer, reorganization, moratorium or similar laws
relating to or affecting the enforcement of creditors' rights generally or the
rights of creditors of holding companies of insured depository institutions, (b)
general equity principles, including those limiting the right to specific
performance or other equitable relief, regardless of whether such enforceability
is considered in a proceeding in equity or at law, or (c) laws relating to the
safety and soundness of holding companies of insured depository institutions.
9. The Expense Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by (a) applicable bankruptcy, insolvency, receivership,
fraudulent transfer, reorganization, moratorium or similar laws relating to or
affecting the enforcement of creditors' rights generally or the rights of
creditors of holding companies of insured depository institutions, (b) general
equity principles, including those limiting the right to specific performance or
other equitable relief, regardless of whether such enforceability is considered
in a proceeding in equity or at law, or (c) laws relating to the safety and
soundness of holding companies of insured depository institutions.
10. The Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act and is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by (a)
applicable bankruptcy, insolvency, receivership, fraudulent transfer,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights generally or the rights of creditors of holding
companies of insured depository institutions, (b) general equity principles,
including those limiting the right to specific performance or other equitable
relief, regardless of whether such enforceability is considered in a proceeding
in equity or at law, or (c) laws relating to the safety and soundness of holding
companies of insured depository institutions.
11. The Junior Subordinated Debentures have been duly authorized, executed
and delivered by the Company and, when duly authenticated in accordance with the
Indenture and delivered and paid for as contemplated by the Prospectus, will be
valid and binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by (a) applicable bankruptcy,
insolvency, receivership, fraudulent transfer, reorganization, moratorium or
similar laws relating to or affecting the enforcement of creditors' rights
generally or the rights of creditors of holding companies of insured depository
institutions, (b) general equity principles, including those
2
limiting the right to specific performance or other equitable relief, regardless
of whether such enforceability is considered in a proceeding in equity or at
law, or (c) laws relating to the safety and soundness of holding companies of
insured depository institutions.
12. Neither the Company nor the Trust is an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
Investment Company Act.
13. The statements set forth in the Registration Statement under the
captions "Description of the Preferred Securities," "Description of the Junior
Subordinated Debentures," "Description of the Guarantee" and "Relationship
Among the Preferred Securities, the Junior Subordinated Debentures, the Expense
Agreement and the Guarantee," insofar as they purport to describe the provisions
of the laws referred to therein, fairly summarize the legal matters described
therein.
14. The statements of law or legal conclusions and opinions set forth in
the Registration Statement under the caption "Federal Income Tax Consequences,"
subject to the assumptions and conditions described therein, constitute such
counsel's opinion.
15. The Registration Statement was declared effective under the 1933 Act
as of the date and time specified in such opinion, any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b) and, to such
counsel's Actual Knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings
therefor have been initiated or threatened by the Commission.
16. The Registration Statement (including the information required by Rule
430A, if applicable) and the Prospectus and any amendment or supplement thereto
(except for the financial statements, notes to financial statements and other
financial, tabular and statistical data included therein or omitted therefrom,
as to which such counsel need express no opinion), as of their respective
effective or issue dates, complied as to form in all material respects with the
applicable requirements of the 1933 Act and the 1933 Act Regulations.
17. Such counsel knows of no legal or governmental proceedings pending to
which the Company or any subsidiary is a party or of which any property of the
Company or any subsidiary is the subject that are required to be disclosed in
the Registration Statement and are not so disclosed or that would affect the
consummation of the transactions contemplated in the Underwriting Agreement or
the Indenture; and such counsel knows of no such proceedings that are threatened
or contemplated by governmental authorities or threatened by others.
18. Such counsel knows of no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described in the
Registration Statement or to be filed as exhibits thereto other than those
described therein or filed as exhibits thereto, and such instruments as are
summarized in the Registration Statement are fairly summarized in all material
respects.
3
19. No approval, authorization, consent, registration, qualification or
other order of any public board or body is required in connection with the
execution and delivery by the Company of the Underwriting Agreement, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement and the Indenture or
the issuance and sale of the Preferred Securities or the consummation by the
Company of the other transactions contemplated by the Underwriting Agreement,
the Trust Agreement, the Guarantee Agreement, the Expense Agreement or the
Indenture, except such as have been obtained under the 1933 Act, the 1934 Act
and the Trust Indenture Act or such as may be required under the blue sky or
securities laws of various states in connection with the offering and sale of
the Preferred Securities.
20. To such counsel's Actual Knowledge, each of the Company and the Bank
has all material licenses, permits and other governmental authorizations
currently required for the conduct of its business as described in the
Prospectus.
21. The execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement and the Indenture, the
issue and sale of the Junior Subordinated Debentures, the compliance by the
Company with the provisions of the Junior Subordinated Debentures, the
Indenture, the Trust Agreement, the Guarantee Agreement, the Expense Agreement
and the Underwriting Agreement and the consummation of the transactions therein
contemplated will not conflict with or constitute a breach of, or default under,
the articles of incorporation or by-laws of the Company or the Bank or a breach
or default under any contract, indenture, mortgage, loan agreement, note, lease
or other instrument known to such counsel to which either the Company or any
subsidiary is a party or by which any of them or any of their respective
properties may be bound except for such breaches as would not have a material
adverse effect on the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its subsidiaries
considered as one enterprise, nor will such action result in a violation on the
part of the Company or the Bank of any applicable law or regulation or of any
administrative, regulatory or court decree known to such counsel.
22. Such counsel has participated in the preparation of the Registration
Statement and the Prospectus and no facts have come to the attention of such
counsel to lead it to believe (a) that the Registration Statement (including the
information required by Rule 430A, if applicable) or any amendment thereto
(except for the financial statements, notes to financial statements and other
financial, tabular or statistical data included therein or omitted therefrom, as
to which such counsel need not comment), at the time the Registration Statement
or any such amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (b) that the
Prospectus or any amendment or supplement thereto (except for the financial
statements, notes to financial statements and other financial, tabular or
statistical data included therein or omitted therefrom, as to which such counsel
need not comment), at the time the Prospectus was issued, or at the Closing
Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
4
EXHIBIT C
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The opinion of special Delaware counsel to the Company and the Trust to be
delivered pursuant to Section 5(b)(ii) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act and all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Under the Delaware Act and the Trust Agreement, the Trust has the
business trust power and authority to own its property and to conduct its
business, all as described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Trustees and is enforceable against the Company and the Trustees
in accordance with its terms, except as such enforceability may be limited by
(i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws relating
to or affecting the rights and remedies of creditors generally, (ii) principles
of equity, including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law), and (iii)
the effect of applicable public policy or the enforceability of provisions
relating to indemnification or contribution.
4. Under the Delaware Act and the Trust Agreement, the Trust has the
trust power and authority to execute and deliver, and to perform its obligations
under, the Underwriting Agreement and to issue and perform its obligations under
the Preferred Securities and the Common Securities.
5. Under the Delaware Act and the Trust Agreement, the execution and
delivery by the Trust of the Underwriting Agreement, and the performance by the
Trust of its obligations thereunder, have been duly authorized by all necessary
trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized for issuance by the
Trust Agreement and, when issued, executed, authenticated and delivered in
accordance with the terms of the Trust Agreement against payment therefor as set
forth in the Underwriting Agreement, will be duly and validly issued and
(subject to the qualifications set forth in this paragraph) fully paid and
nonassessable undivided beneficial interests in the assets of the Trust entitled
to the benefits of the Trust Agreement (subject to the limitations set forth in
paragraph 3 above). The holders of the Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitations of personal
liability as are extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided
that such counsel need express no opinion with respect to the liability of any
holder of the Preferred Securities who is, was or may become a named Trustee of
the Trust and each counsel may note payment obligations under the Trust
Agreement.
7. The Common Securities have been duly authorized for issuance by the
Trust Agreement and, when issued, executed, and delivered to the Company against
payment therefor in accordance with the terms of the Trust Agreement, will be
duly and validly issued and (subject to
the qualifications set forth in this paragraph) fully paid undivided beneficial
interests in the assets of the Trust entitled to the benefits of the Trust
Agreement (subject to the limitations set forth in paragraph 3 above).
8. Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and the Common Securities is not subject to any preemptive
rights.
9. The issuance and sale by the Trust of the Preferred Securities and
Common Securities, the purchase by the Trust of the Junior Subordinated
Debentures, the execution, delivery and performance by the Trust of the
Underwriting Agreement, the consummation by the Trust of the transactions
contemplated by the Underwriting Agreement and the compliance by the Trust with
its obligations thereunder do not violate (i) any of the provisions of the
Certificate of Trust or the Trust Agreement or (ii) any applicable Delaware law
or administrative regulation.
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EXHIBIT D
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The opinion of counsel to the Indenture Trustee and Delaware Trustee to be
delivered pursuant to Section 5(b)(iii) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust Company is a Delaware banking corporation with trust powers,
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware with all necessary corporate power and authority to execute
and deliver, and to carry out and perform its obligations under, the terms of
the Indenture, the Trust Agreement and the Guarantee Agreement.
2. The execution, delivery and performance by the Property Trustee of the
Trust Agreement, the execution, delivery and performance by the Guarantee
Trustee of the Guarantee Agreement and the execution, delivery and performance
by the Indenture Trustee of the Indenture have been duly authorized by all
necessary corporate action on the part of the Property Trustee, the Guarantee
Trustee and the Indenture Trustee, respectively. The Trust Agreement, the
Guarantee Agreement and the Indenture have been duly executed and delivered by
the Property Trustee, the Guarantee Trustee and the Indenture Trustee,
respectively, and the Trust Agreement constitutes the legal, valid and binding
obligations of the Property Trustee, and is enforceable against the Property
Trustee in accordance with their terms, except as enforcement thereof may be
limited by (i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws relating
to or affecting the rights and remedies of creditors' generally, (ii) principles
of equity, including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law), and (iii)
the effect of applicable public policy on the enforceability of provisions
relating to indemnification or contirbution.
3. The execution, delivery and performance of the Trust Agreement, the
Guarantee Agreement and the Indenture by the Property Trustee, the Guarantee
Trustee and the Indenture Trustee, respectively, do not conflict with or
constitute a breach of the charter or by-laws of the Property Trustee, the
Guarantee Trustee and the Indenture Trustee, respectively.
4. No consent, approval or authorization of, or registration with or
notice to any federal or Delaware state banking authority is required for the
execution, delivery or performance by the Property Trustee, the Guarantee
Trustee or the Indenture Trustee of the Trust Agreement, the Guarantee Agreement
and the Indenture, respectively.
5. The Junior Subordinated Debentures delivered on the date hereof have
been duly authenticated by the Indenture Trustee in accordance with the terms of
the Indenture.
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