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Exhibit 1.1
$30,000,000
Hamilton Capital Trust I
BLUS(SM)
[____]% Beneficial Unsecured Securities, Series A
(Liquidation Amount $25 per Capital Security)
UNDERWRITING AGREEMENT
December [__], 1998
CIBC Oppenheimer Corp.
Raymond James & Associates, Inc.
On behalf of the Several
Underwriters named in
Schedule I attached hereto.
c/o CIBC Oppenheimer Corp.
Oppenheimer Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Hamilton Capital Trust I (the "Trust"), a statutory business
trust created under the Business Trust Act (the "Delaware Act") of the State of
Delaware, and Hamilton Bancorp Inc., a corporation organized under the laws of
the State of Florida (the "Company"), propose to sell to you and the other
underwriters named in Schedule I to this Agreement (the "Underwriters"), for
whom you are acting as representatives (the "Representatives"), an aggregate of
[1,200,000] (the "Firm Securities") of the Trust's [____]% Beneficial Unsecured
Securities, Series A (liquidation amount $25 per security). In addition, the
Trust and the Company propose to grant to the Underwriters an option to purchase
up to an additional [180,000] (the "Option Securities") of the Trust's [____]%
Beneficial Unsecured Securities, Series A (liquidation amount $25 per security)
from the Trust for the purpose of covering over-allotments in connection with
the sale of the Firm Securities. The Firm Securities and the Option Securities
are together called the "Capital Securities."
The Capital Securities will be guaranteed by the Company with
respect to distributions and amounts payable upon liquidation or redemption of
such Capital Securities (the "Guarantee") pursuant to the Guarantee Agreement
(the "Guarantee Agreement"), to be entered into between the Company and
Wilmington Trust Company, as trustee (the "Guarantee Trustee"), for the benefit
of holders, from time to time, of the Capital Securities. The Company will be
the owner of all of the beneficial ownership interests represented by the common
securities (the "Common Securities") of the Trust. Proceeds from the sale of
Capital Securities to the Underwriters and from the concurrent sale of Common
Securities to the Company will be used to purchase [___]% Junior Subordinated
Deferrable Interest Debentures, Series A due December [__], 2028 (the
"Debentures") of the Company. The Debentures will be issued by the Company
pursuant to an Indenture (the "Indenture"), to be entered into between the
Company and Wilmington Trust Company, as trustee
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(the "Debenture Trustee"). This Agreement, the Indenture, the Debentures, the
Declaration (as defined in Section 4(s)) and the Guarantee Agreement are
referred to collectively as the "Operative Documents."
1. SALE AND PURCHASE OF THE CAPITAL SECURITIES. On the basis
of the representations, warranties and agreements contained in, and subject to
the terms and conditions of, this Agreement:
(a) The Trust and the Company agree to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase the respective number of Firm Securities set forth
opposite the name of such Underwriter on Schedule I to this Agreement
at a purchase price of 100% of the liquidation amount thereof (the
"Initial Price").
(b) The Company and the Trust grant to the several
Underwriters an option to purchase, severally and not jointly, all or
any part of the Option Securities at the Initial Price. The number of
Option Securities to be purchased by each Underwriter shall be the same
percentage (adjusted by the Representatives to eliminate fractions) of
the total number of Option Securities to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Securities.
Such option may be exercised only to cover over-allotments in the sales
of the Firm Securities by the Underwriters and may be exercised in
whole or in part at any time and from time to time on or before 12:00
noon, New York City time, on the business day before the Firm
Securities Closing Date (as defined below), and from time to time
thereafter within 30 days after the date of this Agreement, in each
case upon written or telegraphic notice, or oral or telephonic notice
confirmed by written or telegraphic notice, by the Representatives to
the Company no later than 12:00 noon, New York City time, on the
business day before the Firm Securities Closing Date or at least two
business days before each Option Securities Closing Date (as defined
below), as the case may be, setting forth the number of Option
Securities to be purchased and the time and date (if other than the
Firm Securities Closing Date) of such purchase.
2. DELIVERY AND PAYMENT. Delivery of the Firm Securities to
the Representatives for the respective accounts of the Underwriters, and payment
of the purchase price by wire transfer or certified or official bank check or
checks payable in immediately available (same day) funds to the Trust, shall
take place at the offices of Thacher Proffitt & Wood at Two World Trade Center,
New York, New York 10048, at 10:00 a.m., New York City time, on the third
business day following the date of this Agreement, or at such time on such other
date, not later than 10 business days after the date of this Agreement, as shall
be agreed upon by the Trust, the Company and the Representatives (such time and
date of delivery and payment are called the "Firm Securities Closing Date").
In the event the option with respect to the Option Securities
is exercised, delivery by the Company and the Trust of the Option Securities to
the Representatives for the respective accounts of the Underwriters and payment
of the purchase price by certified or official bank check or checks payable in
New York Clearing House (next day) funds to the Trust shall take place at the
offices of Thacher Proffitt & Wood specified above at the time and on the date
(which may be the
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same date as, but in no event shall be earlier than, the Firm Securities Closing
Date) specified in the notice referred to in Section 1(b) (such time and date of
delivery and payment are called an "Option Securities Closing Date"). The Firm
Securities Closing Date and each Option Securities Closing Date are called,
individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Capital Securities shall be
registered in such names and shall be in such denominations as the
Representatives shall request at least two full business days before the Firm
Securities Closing Date or, in the case of Option Securities, on the day of
notice of exercise of the option as described in Section 1(b), and shall be made
available to the Representatives for checking and packaging, at such place as is
designated by the Representatives, one full business day before the Firm
Securities Closing Date (or the Option Securities Closing Date in the case of
the Option Securities).
As compensation for the Underwriters' commitment and in view
of the fact that proceeds from the sale of the Capital Securities to the
Underwriters will be used to purchase the Debentures, the Company shall pay, on
each Closing Date, to the Underwriters a commission of $___ per Capital Security
purchased by the Underwriters on such Closing Date by wire transfer of
immediately available (same day) funds on such Closing Date to a bank account
designated by CIBC Oppenheimer Corp.
3. REGISTRATION STATEMENT AND PROSPECTUS; PUBLIC OFFERING. The
Company and the Trust have prepared in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the published
rules and regulations thereunder (the "Rules") adopted by the Securities and
Exchange Commission (the "'Commission") a registration statement on Form S-3
(Nos. __________________), including a preliminary prospectus relating to the
Capital Securities, and have filed with the Commission the Registration
Statement (as hereinafter defined) and such amendments thereof as may have been
required to the date of this Agreement. Such Registration Statement has been
declared effective by the Commission, and no further amendments thereto or
supplements thereof have been filed by the Company or the Trust with the
Commission. Copies of such Registration Statement (including all amendments
thereof) and of the related preliminary prospectus have heretofore been
delivered by the Company and the Trust to you. The term "Preliminary Prospectus"
means any preliminary prospectus (as described in Rule 430 of the Rules)
included at any time as a part of the Registration Statement. The Registration
Statement as amended at the time and on the date it became effective (the
"'Effective Date"), including all exhibits and information, if any, deemed to be
part of the Registration Statement pursuant to Rule 424(b) and Rule 430A of the
Rules, is called the "Registration Statement." The term "Prospectus" means the
prospectus in the form first used to confirm sales of the Capital Securities
(whether such prospectus was included in the Registration Statement at the time
of effectiveness or was subsequently filed with the Commission pursuant to Rule
424(b) of the Rules). Reference made herein to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act as of the date of such Preliminary Prospectus or
Prospectus, as the case may be.
The Company and the Trust understand that the Underwriters
propose to make a public offering of the Capital Securities as set forth in and
pursuant to the Prospectus as soon after
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the date of this Agreement as the Representatives deem advisable. The Company
and the Trust hereby confirm that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each Preliminary Prospectus
and are authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company and the Trust furnish amendments or supplements
thereto to the Underwriters).
4. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE
COMPANY. The Trust and the Company, jointly and severally, hereby represent and
warrant to, and agree with, each Underwriter as follows:
(a) On the Effective Date, the Registration Statement
complied, and on the date of the Prospectus, on the date any
post-effective amendment to the Registration Statement shall become
effective, on the date any supplement or amendment to the Prospectus is
filed with the Commission and on each Closing Date, the Registration
Statement and the Prospectus (and any amendment thereof or supplement
thereto) will comply, in all material respects, with the applicable
provisions of the Securities Act and the Rules and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Commission thereunder. The Registration
Statement did not, as of the Effective Date, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and on the other dates referred to
above, neither the Registration Statement nor the Prospectus, nor any
amendment thereof or supplement thereto, will contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. When any Preliminary Prospectus was
first filed with the Commission (whether filed as part of the
Registration Statement or any amendment thereto or pursuant to Rule
424(a) of the Rules) and when any amendment thereof or supplement
thereto was first filed with the Commission, such Preliminary
Prospectus as amended or supplemented complied in all material respects
with the applicable provisions of the Securities Act and the Rules and
did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading. Notwithstanding
the foregoing, the Company and the Trust make no representation or
warranty as to the paragraph with respect to stabilization on the
inside front cover page of the Prospectus and the statements contained
under the caption "Underwriting" in the Prospectus. The Company and the
Trust acknowledge that the statements referred to in the previous
sentence constitute the only information furnished in writing by the
Representatives on behalf of the several Underwriters specifically for
inclusion in the Registration Statement, any Preliminary Prospectus or
the Prospectus.
(b) The documents incorporated by reference in the
Registration Statement and the Prospectus, when they were filed with
the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents 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 made therein not
misleading.
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(c) The consolidated financial statements of the Company and
its subsidiary, Hamilton Bank, N.A., a national banking association
(the "Bank") (including all notes and schedules thereto) included in
the Registration Statement and Prospectus present fairly the financial
condition, the results of operations and cash flows and stockholders'
equity and the other information purported to be shown therein of the
Company and the Bank at the respective dates and for the respective
periods to which they apply; and such financial statements have been
prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved, except as
otherwise disclosed therein and all adjustments (consisting only of
normal recurring adjustments) necessary for a fair presentation of the
results for such periods have been made.
(d) Deloitte & Touche LLP, whose reports are filed with the
Commission as a part of the Registration Statement, are and, during the
periods covered by their reports, were independent public accountants
as required by the Securities Act and the Rules.
(e) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC Act");
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Florida,
and the Bank has been duly organized and is validly existing as a
national banking association under the laws of the United States. The
Bank is the only subsidiary, direct or indirect, of the Company. The
Company does not control, directly or indirectly, any corporation
(other than the Bank), partnership, joint venture, association or other
business organization. The Company and the Bank are duly qualified to
do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property
or the conduct of their respective businesses requires such
qualification, except where the failure to so qualify will not have a
material adverse effect on the assets or properties, business, results
of operations, prospects or financial condition of the Company and the
Bank, taken as a whole, and have all corporate power necessary to own
or hold their respective properties, to operate their branches and to
conduct the businesses in which they are engaged. The deposit accounts
of the Bank are insured by the Bank Insurance Fund of the Federal
Deposit Insurance Corporation (the "FDIC") to the fullest extent
permitted by law and the rules and regulations of the FDIC, and no
proceedings for the termination of such insurance are pending or
threatened.
(f) Each of the Company and the Bank owns, possesses or has
obtained all governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations (collectively, the
"Authorizations") and has made all requisite declarations,
registrations and filings (collectively, the "Filings") of, from and
with all governmental or regulatory bodies and any other person or
entity, required under the laws of the State of Florida, the United
States and any other jurisdiction in which the Company or the Bank
transact business in order to own or lease, as the case may be, and to
operate its properties and to conduct its business as presently
conducted and as described in the Prospectus; all of such licenses,
permits, certificates, consents, orders, approvals and authorizations,
are in full force and effect and neither the Company nor the Bank has
received any notice of
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proceedings relating to any revocation or modification thereof, except
for such Authorizations and Filings, the failure to so obtain or make
would not have a material adverse effect upon the assets or properties,
business, results of operations, prospects or financial condition of
the Company and the Bank, taken as a whole.
(g) Each of the Company and the Bank is in compliance in all
material respects with all applicable laws administered by and
regulations of the Board of Governors of the Federal Reserve System,
the Office of the Comptroller of the Currency, the FDIC and any state
bank regulatory authority with jurisdiction over the Company or the
Bank, as the case may be (each, a "Bank Regulatory Authority"), the
failure to comply with which would have a material adverse effect upon
the assets or properties, business, results of operations, prospects or
financial condition of the Company and the Bank, taken as a whole.
Neither the Company nor the Bank is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter
or similar undertaking to, or is subject to any order or directive by,
or is a recipient of any extraordinary supervisory letter from, or has
adopted any board resolutions at the request of, any Bank Regulatory
Authority which restricts materially the conduct of its business, or in
any manner relates to its capital adequacy, its credit policies or its
management, nor have any of them been advised by any Bank Regulatory
Authority that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such
order, decree, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar submission, or any
such board resolutions.
(h) Except as disclosed in the Registration Statement and
Prospectus, the Company and the Bank each owns or possesses adequate
and enforceable rights, either as owner or licensee, to use all
trademarks, trademark applications, trade names, service marks,
copyrights, copyright applications, licenses, know-how and other
similar rights and proprietary knowledge (collectively, "Intangibles")
necessary for the conduct of its business as described in the
Registration Statement and the Prospectus. The Company has not received
any notice of, or to its best knowledge is not aware of, any
infringement of or conflict with asserted rights of others with respect
to any Intangibles, which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a material
adverse effect upon the assets or properties, business, results of
operations, prospects or financial condition of the Company and the
Bank, taken as a whole.
(i) The Company and the Bank each have good and marketable
title in fee simple to all real property and good title to all personal
property owned by it, in each case free and clear of all liens,
encumbrances and defects except such as do not materially affect the
value of such or do not materially interfere with the use made of such
property by the Company or the Bank; and all real property and
buildings held under lease by the Company or the Bank are held by them
under valid, subsisting and enforceable leases, with such exceptions as
are not material and do not interfere with the use made of such
property and buildings by the Company or the Bank.
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(j) There is no action, suit, investigation or proceeding,
governmental or otherwise, pending or, to the Company's best knowledge,
threatened or contemplated (and the Company does not know of any basis
therefor) to which the Company or the Bank is or may be a party or of
which the business or property of the Company or the Bank is or may be
subject in either case that is material to the Company and the Bank,
taken as a whole, or which is required to be disclosed in the
Prospectus and is not so disclosed.
(k) Except as disclosed in or contemplated by the Registration
Statement and the Prospectus, subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change in the
assets or properties, business, management, results of operations,
prospects or financial condition of the Company and the Bank whether or
not arising from transactions in the ordinary course of business, and
neither the Company nor the Bank has sustained any material loss or
interference with its assets, businesses or properties from fire,
explosion, earthquake, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or any court or legislative or
other governmental action, order or decree.
(l) Neither the Company nor the Bank is in violation of any
term or provision of (i) its charter or by-laws or other governing
documents or (ii) any franchise, license, permit, judgment, decree,
order, statute, rule, regulation, directive, policy or guideline to
which it or its property may be subject, except, in the case of clause
(ii), for such violations which would not, individually or in the
aggregate, have a material adverse effect on the assets or properties,
business, results of operations, prospects or financial condition of
Company and the Bank, taken as a whole.
(m) No default exists, and no event has occurred which with
notice or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition by the
Company or the Bank of any agreement, indenture, mortgage, deed of
trust, note or any other agreement or material instrument to which the
Company or the Bank is a party or by which any of them or their
respective properties or businesses may be bound, except for such
defaults or events which would not have a material adverse effect on
the assets or properties, business, results of operations, prospects or
financial condition of the Company and the Bank, taken as a whole.
(n) Neither the execution, delivery and performance of the
Operative Documents by the Company and the Trust nor the consummation
of any of the transactions contemplated hereby or thereby will (i)
conflict with or result in the breach or violation of any term or
provision of, or give rise to a right to terminate or accelerate the
due date of any payment due under, or constitute a default (or an event
which with notice or lapse of time or both would constitute a default)
under, or require any consent or waiver under, or result in the
creation or imposition of any of any lien, charge, claim, encumbrance
or security interest on any properties or assets of the Company or of
the Bank pursuant to the terms of, any material agreement, indenture,
mortgage or other material agreement or material 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 (ii) violate
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the charter or by-laws or other governing document of the Company or
the Bank or any applicable law, rule, regulation, decision, order or
decree of any court or governmental agency or governmental authority
having jurisdiction over the Company or the Bank or any of their
properties, except, in the case of clause (i), for such violations
which would not have a material adverse effect on the assets or
properties, business, results of operations, prospects or financial
condition of the Company and the Bank, taken as a whole.
(o) No consent, approval, authorization or order of, or
filing, registration, or qualification with, any governmental agency or
authority is required in connection with the execution, delivery and
performance by the Company and the Trust of the Operative Documents or
the consummation of the transactions contemplated hereby and taken
thereby, except (A) as may be required under the Securities Act and the
Rules, the Exchange Act, or the Blue Sky laws of the various states of
the United States in connection with any sales of Capital Securities
therein or (B) as have already been obtained or made.
(p) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Rules.
(q) The Company's capitalization is as set forth in the
Prospectus; all of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued and are fully paid and
non-assessable, and 99.8% of such shares are owned by the Company,
directly or indirectly, free and clear of all liens, encumbrances,
equities or claims of any third parties; and no holder of any security
of the Company has the right to have any security owned by such holder
included in the Registration Statement.
(r) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, except as reflected therein,
neither the Company nor the Bank has (i) issued or granted any
securities (other than shares of the Company's common stock issued
under the Company's Stock Option Plan, pursuant to the exercise of
outstanding stock options or to employees or directors under bonus or
other compensation plans or arrangements) or incurred any material
liability or obligation, whether fixed or contingent, except for
liabilities or obligations incurred in the ordinary course of its
banking business, (ii) entered into any transaction not in the ordinary
course of its banking business, or (iii) declared or paid any dividend
or made any distribution on any shares of its capital stock or
redeemed, purchased or otherwise acquired or agreed to redeem, purchase
or otherwise acquire any shares of its capital stock.
(s) Neither the Company nor the Bank is involved in any labor
dispute nor, to the knowledge of the Company, is any such dispute
threatened, which dispute would have a material adverse effect on the
assets or properties, business, results of operations, prospects or
financial condition of the Company and the Bank, taken as a whole.
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(t) No transaction has occurred between or among the Company
or any of its affiliates, officers or directors or any affiliate or
affiliates cf any such officer or director that is required to be
described in and is not described In the Registration Statement and the
Prospectus.
(u) The Company and the Bank have filed all Federal, state,
local and foreign tax returns which are required to be filed by them,
either on an individual or consolidated basis, through the date hereof,
or has received extensions thereof; all taxes shown on such returns and
all assessments received by them have been paid, to the extent that the
same have become due, except where the failure to so file or pay would
not have a material adverse effect on the assets or properties,
business, results of operations, prospects or financial condition of
the Company and the Bank, taken as a whole.
(v) The Capital Securities have been duly authorized for
quotation on the National Association of Securities Dealers Automated
Quotation ("NASDAQ") National Market System, subject to official notice
of issuance, and a registration statement has been filed on Form 8-A
pursuant to Section 12 of the Exchange Act for the Capital Securities,
which registration statement complies in all material respects with the
Exchange Act.
(w) The Company will comply with all of the requirements and
file the required forms as specified in Florida Statutes Section
517.075 if qualification of the Capital Securities becomes necessary.
(x) The Capital Securities and the Common Securities have been
duly and validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable; and the Capital Securities and the
Common Securities, when issued and delivered, will conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(y) The Indenture has been duly authorized, and when duly
executed by the proper officers of the Company (assuming due execution
and delivery by the Indenture Trustee) and delivered by the Company
will constitute a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law); and the
Debentures have been duly authorized and, when duly executed,
authenticated, issued and delivered as contemplated in the Indenture,
will constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture and enforceable in accordance with
their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law); and the Debentures, when issued and delivered, will conform in
all material respects to the description thereof contained in the
Prospectus.
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(z) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Delaware Act with
the trust power and authority to own property and conduct its business
as described in the Prospectus, and has conducted and will conduct no
business other than the transactions contemplated by this Agreement as
described in the Prospectus; the Trust is not a party to or bound by
any agreement or instrument other than this Agreement, the Amended and
Restated Declaration of Trust (the "Declaration") among the Company,
Wilmington Trust Company, as property trustee (the "Property Trustee"),
Wilmington Trust Company, as Delaware trustee (the "Delaware Trustee"),
and the individuals named therein as the Administrative Trustees (the
"Administrative Trustees," and, together with the Property Trustee and
the Delaware Trustee, the "Trustees"), and the agreements and
instruments contemplated by the Declaration and described in the
Prospectus; the Trust has no liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement
and the agreements and instruments contemplated by the Declaration and
described in the Prospectus; and the Trust is not a party to or subject
to any action, suit or proceeding of any nature.
(aa) The Declaration has been duly authorized by the Company
and, when duly executed and delivered by the Company and the Trustees,
will be a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting the rights of creditors generally and general equitable
principles (whether considered in a proceeding in equity or at law),
and will conform in all material respects to the description thereof
contained in the Prospectus. Each of the Administrative Trustees is an
employee of the Company and has been duly authorized by the Company to
serve in such capacity and to execute and deliver the Declaration.
(bb) The Guarantee Agreement has been duly authorized and,
when duly executed and delivered by the proper officers of the Company
and the Guarantee Trustee, will constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law); and the Guarantee Agreement, when executed and delivered, will
conform in all material respects to the description thereof contained
in the Prospectus.
(cc) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Trust and constitutes a valid
and legally binding agreement of the Company and the Trust enforceable
against the Company and the Trust in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
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(dd) Neither the Trust nor the Company nor the Bank is
required to register as an "investment company" within the meaning of
such term under the Investment Company Act of 1940 (the "Investment
Company Act") and the rules and regulations of the Commission
thereunder as a result of the consummation of the transactions
contemplated by the Operative Documents.
(ee) The conditions for use of Form S-3 by the Company and the
Trust, as set forth in the General Instructions thereto, have been
satisfied.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters under this Agreement are several and not joint.
The respective obligations of the Underwriters to purchase the Capital
Securities on each Closing Date are subject to each of the following terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a)(i) of this Agreement.
(b) No order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus shall have been or shall be in
effect and no order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission, and any requests for
additional information on the part of the Commission (to be included in
the Registration Statement or the Prospectus or otherwise) shall have
been complied with to the satisfaction of the Representatives.
(c) No Underwriter shall have been advised by the Company or
shall have discovered and disclosed to the Company that the
Registration Statement or the Prospectus or any amendment or supplement
thereby, contains an untrue statement of fact which, in the opinion of
counsel to the Underwriters, is material, or omits to state a fact
which, in the opinion of counsel to the Underwriters, is material and
is required to be stated therein or is necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
(d) The representations and warranties of the Trust and the
Company contained in this Agreement and in the certificates delivered
pursuant to Section 5(e) shall be true and correct when made and on and
as of each Closing Date as if made on such date and each of the Trust
and the Company shall have performed all covenants and agreements and
satisfied all the conditions contained in this Agreement required to be
performed or satisfied by it at or before such Closing Date.
(e) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated such
Closing Date, of the chief executive or chief operating officer and the
chief financial officer of the Company, to the effect that the signers
of such certificate have carefully examined the Registration Statement,
the Prospectus and this Agreement and that (i) to the best of their
knowledge after due inquiry, the representations and warranties of the
Company contained in this Agreement are true and
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correct as if made on and as of such Closing Date with the same effect
as if made on such Closing Date, and the Company has performed all
covenants and agreements and satisfied all conditions contained in this
Agreement required to be performed or satisfied by it at or prior to
such Closing Date, including without limitation, the condition set
forth in Section 5(m) and (ii) they have carefully examined the
Registration Statement and the Prospectus and, in their opinion (A) as
of the Effective Date, the Registration Statement and the Prospectus
did not include any untrue statement of a material fact and did not
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) since
the Effective Date no event has occurred which should have been set
forth in a supplement to the Prospectus or an amendment to the
Registration Statement.
(f) The Representatives shall have received at the time this
Agreement is executed and on each Closing Date a signed letter from
Deloitte & Touche LLP addressed to the Representatives and dated,
respectively, the date of this Agreement and such Closing Date, in form
and substance reasonably satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of
the Securities Act and the Rules and are in compliance with the
applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission and stating in
effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included
or incorporated by reference in the Registration
Statement and the Prospectus and reported on by them
comply as to form in all material respects with the
applicable accounting requirements of the Securities
Act and the Rules;
(ii) On the basis of a reading of the
financial statements and amounts included or
incorporated by reference in the Registration
Statement and the Prospectus, carrying out certain
procedures (but not an examination in accordance with
generally accepted auditing standards) which would
not necessarily reveal matters of significance with
respect to comments set forth in such letter, a
reading of the minutes of the meetings of the
shareholders and board of directors of the Company
and the Bank and inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters of the Company and the Bank,
nothing came to their attention which caused them to
believe that there were any changes, increases or
decreases, as of the date of the letter, in
consolidated net interest income, net income,
long-term debt or capital stock compared to the same
period in the prior year or as of December 31, 1997,
as the case may be, except in all instances for
changes, increases or decreases set forth or
contemplated in the Registration Statement or as
otherwise set forth in this letter; and
(iii) they have performed certain other
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature set forth in the Registration
Statement and the Prospectus
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agrees with the financial statements or accounting or
other records of the Company and is arithmetically
correct.
References to the Registration Statement and the Prospectus in this paragraph
(f) are to such documents as amended and supplemented at the date of such
letters.
(g) The Representatives shall have received on each Closing
Date from Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.,
counsel to the Company and the Trust, an opinion, addressed to the
Representatives and dated such Closing Date, and stating in effect
that:
(i) The Company is duly registered as a bank
holding company under the BHC Act and has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the State of
Florida. The Bank has been duly organized and is
validly existing as a national banking association
under the laws of the United States. The Company and
the Bank are duly qualified and in good standing as
foreign corporations in each jurisdiction in which
their respective ownership or lease of property or
the conduct of their respective businesses requires
such qualification, except where the failure to so
qualify would not have a material adverse effect on
the assets or properties, business, results of
operations or financial condition of the Company and
the Bank, taken as a whole, and have all corporate
power necessary to own or hold their respective
properties, to operate their branches and conduct the
business in which they are engaged as described in
the Prospectus. The deposit accounts of the Bank are
insured by the Bank Insurance Fund of the FDIC to the
fullest extent permitted by law and the rules and
regulations of the FDIC, and no proceedings for the
termination of such insurance are pending or
threatened.
(ii) The Company's capitalization is as set
forth in the Prospectus; and all of the issued shares
of capital stock of the Bank have been duly and
validly authorized and issued and are fully paid and
non-assessable and, to the best of such counsel's
knowledge, 99.8% of which are owned directly or
indirectly by the Company, free and clear of all
liens, encumbrances, equities or claim; and no holder
of any security of the Company has the right, under
the Company's certificate of incorporation or by-laws
or any agreement or instrument known to such counsel,
to have any security owned by such holder included in
the Registration Statement.
(iii) The Registration Statement was
declared effective under the Securities Act at the
time and on the date specified in such counsel's
opinion, and to the best knowledge of such counsel,
no stop order or other order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are
pending before the Commission under the Securities
Act.
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(iv) The Registration Statement and the
Prospectus and any further amendments or supplements
thereto made by the Company prior to such Closing
Date (other than the financial statements and related
notes and schedules therein, as to which such counsel
need express no opinion) comply as to form in all
material respects with the requirements of the
Securities Act and the Rules; and the documents
incorporated by reference in the Prospectus (other
than the financial statements and related schedules
therein, as to which such counsel need express no
opinion), when they were filed with the Commission,
complied as to form in all material respects with the
requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
(v) The Company and the Trust meet all the
conditions necessary for the use of Form S-3 in
connection with the issuance and sale of the Capital
Securities, the Guarantee and the Debentures.
(vi) No consent, approval, authorization or
order of or filing, registration, or qualification
with any governmental agency or authority is required
in connection with the execution and delivery by the
Company and the Trust of the Operative Documents and
the consummation of the transactions contemplated
hereby except (A) as may be required under the
Exchange Act or the Blue Sky laws of the various
states of the United States in connection with any
sales of Capital Securities therein or (B) as have
already been obtained or made.
(vii) This Agreement has been duly
authorized, executed and delivered by the Company and
the Trust and constitutes a valid and binding
agreement of the Company and the Trust enforceable
against the Company and the Trust in accordance with
its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or
affecting creditors' rights generally and general
equitable principles (whether considered in a
proceeding in equity or at law).
(viii) The Declaration has been duly
authorized, executed and delivered by the Company.
(ix) The Indenture has been duly authorized,
executed and delivered by the Company and (assuming
due authorization, execution and delivery thereof by
the Indenture Trustee) constitutes a valid and
binding agreement of the Company enforceable against
the Company in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors'
rights generally and general equitable principles
(whether
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considered in a proceeding in equity or at law); and
the Debentures have been duly authorized, executed,
issued and delivered by the Company as contemplated
in the Indenture and (assuming due authentication by
the Indenture Trustee) constitute valid and binding
obligations of the Company entitled to the benefits
of the Indenture and enforceable in accordance with
their term, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or
affecting creditors' rights generally and general
equitable principles (whether considered in a
proceeding in equity or at law).
(x) The Guarantee Agreement has been duly
authorized, executed and delivered by the Company
and, assuming due authorization, execution and
delivery by the Guarantee Trustee, constitutes a
valid and legally binding obligation of the Company
enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or
affecting creditors' rights generally and general
equitable principles (whether considered in a
proceeding in equity or at law).
(xi) The statements contained in the
Prospectus under the caption "Certain United States
Federal Income Tax Consequences" are accurate in all
material respects and constitute a fair summary of
the matters set forth therein.
(xii) To the best knowledge at such counsel,
the businesses of the Company and the Bank have been
conducted in all material respects in compliance with
all applicable laws, rules and regulations of the
State of Florida and the United States, which laws
are material to the operations of the Company and the
Bank taken as a whole.
(xiii) The statements in the Prospectus
under the captions "Description of Series A Capital
Securities," "Description of Series A Subordinated
Debentures," "Description of Series A Guarantee" and
"Relationship Among the Series A Capital Securities,
the Series A Subordinated Debentures and the Series A
Guarantee," insofar as such statements constitute a
summary of documents referred to therein or matters
of law, are fair summaries in all material respects
and accurately present the information called for
with respect to such documents and matters.
(xiv) Except as set forth (or referred to)
in the Prospectus, or incorporated by reference
therein, to our knowledge, there are no contractual
encumbrances or restrictions, or material legal
restrictions on the ability of the Bank (i) to pay
dividends or make any other distributions on its
capital stock or to pay indebtedness owed to the
Company, (ii) to make any loans or
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advances to, or investments in, the Company, or (iii)
to transfer any of its properties or assets to the
Company.
(xv) Neither the Trust nor the Company nor
the Bank is required to register as an investment
company under the Investment Company Act as a result
of the transactions contemplated by the Operative
Documents.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company, the Bank
and public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the State of Florida and the Federal laws of the United States; PROVIDED that
such counsel shall state that in their opinion the Underwriters and they are
justified in relying on such other opinions. Copies of such certificates and
other opinions shall be furnished to the Representatives and counsel for the
Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives, including Underwriters'
counsel, and representatives of the independent certified public accountants of
the Company, at which conferences the contents of the Registration Statement and
the Prospectus and related matters were discussed and, although such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (relying as to materiality to a large extent upon
the opinions and representations of officers and other representatives of the
Company), on the basis of the foregoing, no facts have come to the attention of
such counsel which lead such counsel to believe that the Registration Statement
at the time the Registration Statement became effective (except with respect to
the financial statements and notes thereto and other financial and statistical
data contained therein, as to which such counsel need express no opinion or
belief) contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus as amended or supplemented
(except with respect to the financial statements and notes thereto and other
financial and statistical data contained therein, as to which such counsel need
make no statement or express any opinion or belief) on the date thereof and on
such Closing Date contained any untrue statement of a material fact or omitted
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.
(h) The Representatives shall have received on each Closing
Date from J. Reid Bingham, Esq., general counsel of the Company, an
opinion, addressed to the Representatives and dated such Closing Date,
and stating in effect that:
(i) To the best knowledge of such counsel,
neither the Company nor the Bank is in violation of
or conflict with any term or provision of its charter
or by-laws or other governing documents and neither
the Company nor the Bank is in violation of any
franchise, license, permit, judgment, decree, order,
statute, rule, regulation, directive, policy or
guideline to which it or its property may be subject,
except for such violations which could not
individually or in the aggregate, have a material
adverse effect on the Company and the Bank, taken as
a whole.
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(ii) To the best knowledge of such counsel,
no default exists, and no event has occurred which
with notice or lapse of time or both would constitute
a default, in the due performance and observance of
any term, covenant or condition by the Company or the
Bank of any material agreement, indenture, mortgage,
deed of trust, note or any other material agreement
or material instrument to which the Company or the
Bank is a party or by which it or its properties or
businesses may be bound.
(iii) The execution, delivery and
performance of the Operative Documents by the Company
and the Trust and the consummation of the
transactions contemplated hereby and thereby will not
conflict with or result in the breach or violation of
any term or provision of, or constitute a default (or
an event which with notice or lapse of time or both
would constitute a default) under, or require any
consent or waiver under, or result in the creation or
imposition of any lien, charge, claim, encumbrance or
security interest on any properties or assets of the
Company or the Bank pursuant to the terms of, any
material agreement, indenture, mortgage or other
material agreement or material instrument known to
such counsel 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 actions violate
the charter or bylaws or other governing document of
the Company or the Bank or any applicable law, rule
or administrative regulation of any court or
governmental agency or governmental authority having
jurisdiction over the Company or the Bank or any of
their properties, except for such violations which
could not have, individually or in the aggregate, a
material adverse effect on the Company.
(iv) To the best of such counsels knowledge,
there are no contracts or other documents which are
required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the
Securities Act or by the Rules which have not been so
described or filed as required.
(v) To the best knowledge of such counsel,
there is no action, suit, investigation or
proceeding, governmental or otherwise, pending,
threatened or contemplated to which the Company or
the Bank is or may be a party or of which the
business or property of the Company or the Bank is or
may be subject in either case that is required to be
disclosed in the Prospectus.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and
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the Prospectus (except as specified in the foregoing opinion), on the basis of
the foregoing, no facts have come to the attention of such counsel which lead
such counsel to believe that the Registration Statement at the time it became
effective (except with respect to the financial statements and notes and
schedules thereto and other financial data, as to which such counsel need
express no belief) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements and notes and
schedules thereto and other financial data, as to which such counsel need make
no statement), as of its issue date and at the date of such opinion, contained
any untrue statement of a material fact or omitted 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.
(i) On each Closing Date there shall have been furnished to
the Representatives the opinion (addressed to the Underwriters) of
Richards, Layton & Finger, P.A., as special Delaware counsel to the
Trust and the Company, dated such Closing Date, and in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust
under the Delaware 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;
(ii) Under the Delaware Act and the
Declaration, the Trust has the trust power and
authority to own its property and conduct its
business as set forth in the Declaration;
(iii) The Declaration 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, subject,
as to enforcement, to the effect upon the Declaration
of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent
transfer and other similar laws relating to 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 contribution;
(iv) Under the Delaware Act and the
Declaration, the Trust has the trust power and
authority (i) to execute and deliver, and to perform
its obligations under, the Underwriting Agreement,
(ii) to issue and perform its obligations under the
Capital Securities and the Common Securities and
(iii) to purchase and hold the Debentures;
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(v) Under the Delaware Act and the
Declaration, the execution and delivery by the Trust
of this Agreement, and the performance by the Trust
of its obligations hereunder, have been duly
authorized by all necessary trust action on the part
of the Trust;
(vi) The Capital Securities have been duly
authorized by the Declaration and are duly and
validly issued and, subject to the qualifications set
forth herein, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and
are entitled to the benefits of the Declaration. The
holders of the Capital Securities, as beneficial
owners of the Trust, 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. Such counsel may note that the
holders of Capital Securities may be obligated,
pursuant to the Declaration, (i) to provide indemnity
and/or security in connection with and pay taxes or
governmental charges arising from transfers or
exchanges of certificates of Capital Securities and
the issuance of replacement certificates of Capital
Securities, and (ii) to provide security or indemnity
in connection with requests of or directions to the
Property Trustee to exercise its rights and powers
under the Declaration;
(vii) The Common Securities have been duly
authorized by the Declaration and are validly issued
undivided beneficial interests in the assets of the
Trust and are entitled to the benefits of the
Declaration.
(viii) Under the Delaware Act and the
Declaration, the issuance of the Capital Securities
and Common Securities is not subject to preemptive
rights;
(ix) The issuance and sale by the Trust of
the Capital Securities and Common Securities, the
execution, delivery and performance by the Trust of
the Underwriting Agreement, the consummation by the
Trust of the transactions contemplated hereby and
compliance by the Trust with its obligations
hereunder, and the performance by the Company, as
depositor, of its obligations under the Declaration
(A) do not violate (i) any of the provisions of the
certificate of trust of the Trust or the Declaration
or (ii) any applicable Delaware law or administrative
regulation (except that such counsel need express no
opinion with respect to the securities laws of the
State of Delaware) and (B) do not require any
consent, approval, license, authorization or
validation of, or filing or registration with, any
Delaware legislative, administrative or regulatory
body under the laws or administrative regulations of
the State of Delaware (except that such counsel need
express no opinion with respect to the securities
laws of the state of Delaware); and
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(x) Assuming that the Trust derives no
income from or in connection with sources within the
State of Delaware and has no assets, activities
(other than maintaining the Delaware Trustee and the
filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of
Delaware, the holders of the Capital Securities
(other than those holders of Capital Securities who
reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by
the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of
Delaware.
(j) On each Closing Date there shall have been furnished to
the Representatives the opinion (addressed to the Underwriters) of
Thacher Proffitt & Wood, counsel for the Underwriters, with respect to,
as applicable, the incorporation of the Company, the Registration
Statement, the Prospectus (other than financial statements and other
financial data included therein) and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request
to enable them to pass upon such matters.
(k) The Capital Securities to be purchased on each Closing
Date by the Underwriters shall have been approved for listing on the
NASDAQ National Market System.
(l) All corporate proceedings and other legal matters incident
to the authorization, form and validity of the Operative Documents, the
Registration Statement and the Prospectus shall be satisfactory in all
respects to counsel for the Underwriters, and the Representatives shall
have been furnished with such additional documents and certificates as
the Representatives or counsel for the Underwriters may reasonably
request related to this Agreement, the Prospectus or the transactions
contemplated hereby.
(m) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities.
(n) If the Capital Securities have been qualified for sale in
Florida, the Representatives shall have received on each Closing Date
certificates, addressed to the Representatives, and dated such Closing
Date, of an executive officer of the Company, stating solely in his
capacity as an executive officer of the Company, to the effect that the
signer of such certificate has reviewed and understands the provisions
of Section 517.075 of the Florida Statutes, and represents that, to his
knowledge after due inquiry, the Company has complied, and at all times
will comply, with all provisions of Section 517.075 and further, that
as of such Closing Date, neither the Company nor any of its affiliates
does business with the government of Cuba or with any person or
affiliate located in Cuba.
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6. COVENANTS OF THE TRUST AND THE COMPANY. (A) The Trust and
the Company covenant and agree as follows:
(a) To prepare the Prospectus in a form approved by the
Representatives and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the second business day following the
execution and delivery of this Agreement, and to promptly advise the
Representatives (i) when any amendment to the Registration Statement
shall have become effective, (ii) of any request by the Commission for
any amendment of the Registration Statement or the Prospectus or for
any additional information, (iii) of the prevention or suspension of
the use of any Preliminary Prospectus or the Prospectus or of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (iv) of the receipt
by the Trust or the Company of any notification with respect to the
suspension of the qualification of the Capital Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. Neither the Trust nor the Company shall file any
amendment of the Registration Statement or supplement to the Prospectus
unless the Trust or the Company has furnished the Representatives a
copy for its review prior to filing and shall not file any such
proposed amendment or supplement to which the Representatives
reasonably object. Each of the Trust and the Company shall use its best
efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Capital
Securities is required to be delivered under the Securities Act and the
Rules, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Securities Act or the
Rules, to promptly shall prepare and file with the Commission, subject
to the second sentence of paragraph (a) of this Section 6(A), an
amendment or supplement which shall correct such statement or omission
or an amendment which shall effect such compliance.
(c) To make generally available to its security holders and to
the Representatives as soon as practicable, but not later than 45 days
after the end of the 12-month period beginning at the end of the fiscal
quarter of the Company during which the Effective Date occurs (or 90
days if such 12-month period coincides with the Company's fiscal year),
an earning statement (which need not be audited) of the Company,
covering such 12-month period, which shall satisfy the provisions of
Section 11(a) of the Securities Act or Rule 158 of the Rules.
(d) To furnish to the Representatives and counsel for the
Underwriters, without charge, (i) signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof) and
to each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof (ii) copies of any
document incorporated by reference in the Prospectus (including
exhibits thereto) and, (iii) so long as
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delivery of a prospectus by an Underwriter or dealer may be required by
the Securities Act or the Rules, as many copies of any preliminary
prospectus and the Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably request.
(e) To cooperate with the Representatives and their counsel in
endeavoring to qualify the Capital Securities for offer and sale under
the laws of such jurisdictions as the Representatives may designate and
to maintain such qualifications in effect so long as required for the
distribution of the Capital Securities.
(f) For a period of five years after the date of this
Agreement, to supply to the Representatives, copies of such financial
statements and other periodic and special reports as the Company may
from time to time distribute generally to the holders of any class of
its capital stock and to furnish to the Representatives a copy of each
annual or other report it shall be required to file with the
Commission.
(g) Without the prior written consent of CIBC Oppenheimer
Corp., on behalf of the Representatives, for a period of 180 days after
the date of this Agreement, not to offer, issue, sell, contract to sell
or otherwise dispose of any additional securities of the Trust or the
Company substantially similar to the Capital Securities or any
securities convertible into or exchangeable for or that represent the
right to receive any such similar securities.
(h) On or before completion of this offering the Company and
the Trust shall make all filings required under applicable securities
laws and by the NASDAQ National Market System.
(B) Each of the Trust and the Company agrees to pay, or reimburse if
paid by the Representatives, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all costs and expenses incident
to the public offering of the Capital Securities and the performance of the
obligations of the Trust and the Company under this Agreement including those
relating to: (i) the preparation, printing, filing and distribution of the
Registration Statement including all exhibits thereto, each Preliminary
Prospectus, the Prospectus, all amendments and supplements to the Registration
Statement and the Prospectus, and the printing filing and distribution of this
Agreement; (ii) the preparation and delivery of certificates for the Capital
Securities to the Underwriters; (iii) the registration or qualification of the
Capital Securities for offer and sale under the securities or Blue Sky laws of
the various jurisdictions referred to in Section 6(A)(e), including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such registration and qualification and the preparation, printing,
distribution and shipment of preliminary and supplementary Blue Sky memoranda;
(iv) the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of each Preliminary
Prospectus, the Prospectus and all amendments or supplements to the Prospectus,
and of the several documents required by this Section to be so furnished, as may
be reasonably requested for use in connection with the offering and sale of the
Capital Securities by the Underwriters or by dealers to whom Capital Securities
may be sold; (v) the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of all reports and information
required by Section 6(A)(vi); (vi) inclusion of the Capital Securities for
quotation on the NASDAQ
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National Market System and (vii) all transfer taxes, if any, with respect to the
sale and delivery of the Capital Securities by the Trust to the Underwriters.
Subject to the provisions of Section 9, the Underwriters agree to pay, whether
or not the transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Underwriters under this Agreement not payable by the Company
or the Trust pursuant to the preceding sentence, including without limitation,
the fees and disbursements of counsel for the Underwriters.
7. INDEMNIFICATION.
(a) The Trust and the Company agree, jointly and severally, to
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages and liabilities, joint or several (including
any reasonable investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit
or proceeding or any claim asserted), to which they, or any of them may
become subject under the Securities Act, the Exchange Act or other
Federal or state law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided,
however, that such indemnity shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) on account of
any losses, claims, damages or liabilities arising from the sale of the
Capital Securities to any person by such Underwriter if such untrue
statement or omission or alleged untrue statement or omission was made
in such Preliminary Prospectus, the Registration Statement or the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with information furnished in writing to the Company by the
Representatives on behalf of any Underwriter specifically for use
therein. This indemnity agreement will be in addition to any liability
which the Trust and the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Trust and the Company, each person if
any, who controls the Trust or the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
each director of the Company, and each officer of the Trust or of the
Company who signs the Registration Statement, to the same extent as the
foregoing indemnity from the Trust and the Company to each Underwriter,
but only insofar as such losses, claims, damages or liabilities arise
out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any
amendment thereof or supplement thereto, contained in the last
paragraph of the cover page, in the paragraph relating to stabilization
on the inside front cover page of the Prospectus and the statements
contained in the last paragraph under the caption "Underwriting" in the
Prospectus.
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(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against an indemnifying party or
parties under this Section, notify each such indemnifying party of the
commencement of such action, suit or proceeding, enclosing a copy of
all papers served. No indemnification provided for in Section 7(a) or
7(b) shall be available to any party who shall fail to give notice as
provided in this Section 7(c) if the party to whom notice was not given
was unaware of the proceeding to which such notice would have related
and was prejudiced by the failure to give such notice, but the omission
so to notify such indemnifying party of any such action, suit or
proceeding shall not relieve it from any liability that it may have to
any indemnified party for contribution or otherwise than under this
Section. In case any such action, suit or proceeding shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish,
jointly with any other indemnity party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and
the approval by the indemnified party of such, counsel, the
indemnifying party shall not be liable to such indemnified party for
any legal or other expenses, except as provided below and except for
the reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of counsel
by such indemnified party has been authorized in writing by the
indemnifying parties, (ii) the indemnified party shall have reasonably
concluded that there may be a conflict of interest between the
indemnifying parties and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of
the indemnified party) or (iii) the indemnifying parties shall not have
employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each of
which cases the fees and expenses of counsel shall be at the expense of
the indemnifying parties. An indemnifying party shall not be liable for
any settlement of any action suit, proceeding or claim effected without
its written consent, which shall not be unreasonably withheld.
8. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) is due in accordance with its terms but for any reason is held to
be unavailable from the Trust or the Company, each of the Trust, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting any contribution
received by the Trust or the Company from persons other than the Underwriters,
such as persons who control the Trust or the Company within the meaning of the
Securities Act, officers of the Trust or of the Company who signed the
Registration Statement and directors of the Company, who may also be liable for
contribution) to which the Trust,
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the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Trust and the Company on the one hand and the Underwriters on the other from the
offering of the Capital Securities or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 7 hereof,
in such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Trust and the Company on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Trust, the Company and the Underwriters shall be deemed
to be in the same proportion as (x) the total proceeds from the offering before
deducting expenses received by the Trust and the Company, as set forth in the
table on the cover page of the Prospectus, bear to (y) the underwriting
discounts received by the Underwriters, as set forth in the table on the cover
page of the Prospectus. The relative fault of the Trust and the Company or the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact related to information
supplied by the Trust and the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Trust, the Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 8, (i) in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Capital Securities purchased by such
Underwriter hereunder, and (ii) the Trust and the Company shall be liable and
responsible for any amount in excess of such underwriting discount; PROVIDED,
HOWEVER, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person, if any, who controls the Trust or the
Company within the meaning of the Section 15 of the Securities Act or Section
20(a) of the Exchange Act, each officer of the Trust or of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Trust and the Company, subject in
each case to clauses (i) and (ii) in the immediately preceding sentence of this
Section 8. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section, notify such party or parties from whom contribution
my be sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to their respective
underwriting commitments and not joint.
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9. TERMINATION. This Agreement may be terminated with respect
to the Capital Securities to be purchased on a Closing Date by the
Representatives by notifying the Trust and the Company at any time:
(a) in the absolute discretion of the Representatives at or
before any Closing Date: (i) if on or prior to such date, any domestic
or international event or act or occurrence has materially disrupted,
or in the opinion of the Representatives will in the future materially
disrupt, the securities markets; (ii) if them has occurred any new
outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United
States of America is such as to make it, in the judgment of the
Representatives, inadvisable to proceed with the offering; (iii) if
there shall be such a material adverse change in general financial,
political or economic conditions or the effect of international
conditions on the financial markets in the United States of America is
such as to make it, in the judgment of the Representatives, inadvisable
or impracticable to market the Capital Securities; (iv) if trading in
the Capital Securities has been suspended by the Commission or trading
generally on the New York Stock Exchange, Inc. or on the American Stock
Exchange, Inc. has been suspended or limited, or minimum or maximum
ranges for prices for securities shall have been fixed, or maximum
ranges for prices for securities have been required, by said exchanges
or by order of the Commission, the National Association of Securities
Dealers, Inc., or any other governmental or regulatory authority; or
(v) if a banking moratorium has been declared by any state or Federal
authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as
required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, neither the Trust nor the Company shall be under any liability to
any Underwriter, and no Underwriter shall be under any liability to the Trust
and the Company, except that (y) if this Agreement is terminated by the
Representatives or the Underwriters because of any failure, refusal or inability
on the part of the Trust or the Company to comply with the terms or to fulfill
any of the conditions of this Agreement or is terminated in accordance with the
provisions of this Section 9, the Trust or the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) incurred by them in connection with the proposed
purchase and sale of the Capital Securities or in contemplation of performing
their obligations hereunder and (z) no Underwriter who shall have failed or
refused to purchase the Capital Securities agreed to be purchased by it under
this Agreement, without some reason sufficient hereunder to justify cancellation
or termination of its obligations under this Agreement, shall be relieved of
liability to the Trust, the Company or to the other Underwriters for damages
occasioned by its failure or refusal.
10. SUBSTITUTION OF UNDERWRITERS. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 9) to purchase on
any Closing Date the Capital Securities agreed to be purchased on such Closing
Date by such Underwriter or Underwriters, the Representatives may find one or
more substitute underwriters to purchase such Capital Securities or make such
other arrangements as the Representatives may deem advisable or one or more of
the remaining Underwriters may agree to
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purchase such Capital Securities in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Capital Securities to be purchased by the
defaulting Underwriters on such Closing Date shall not exceed 10% of
the Capital Securities that all the Underwriters are obligated to
purchase on such Closing Date, then each of the nondefaulting
Underwriters shall be obligated to purchase such Capital Securities on
the terms herein set forth in proportion to their respective
obligations hereunder; PROVIDED, THAT in no event shall the maximum
number of Capital Securities that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 10
by more than one ninth of such number of Capital Securities without the
written consent of such Underwriter, or
(b) if the number of Capital Securities to be purchased by the
defaulting Underwriters on such Closing Date shall exceed 10% of the
Capital Securities that all the Underwriters are obligated to purchase
on such Closing Date, then the Company and Trust shall be entitled to
an additional business day within which it may, but is not obligated
to, find one or more substitute underwriters reasonably satisfactory to
the Representatives to purchase such Capital Securities upon the terms
set forth in this Agreement.
In any such case, either the Representatives, the Trust or the
Company shall have the right to postpone the applicable Closing Date for a
period of not more than five (5) business days in order that necessary changes
and arrangements (including any necessary amendments or supplements to the
Registration Statement or Prospectus) may be effected by the Representatives,
the Trust and the Company. If the number of Capital Securities to be purchased
on such Closing Date by such defaulting Underwriter or Underwriters shall exceed
10% of the Capital Securities that all the Underwriters are obligated to
purchase on such Closing Date, and none of the nondefaulting Underwriters, the
Trust or the Company shall make arrangements pursuant to this Section within the
period stated for the purchase of the Capital Securities that the defaulting
Underwriters agreed to purchase, this Agreement shall terminate with respect to
the Capital Securities to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Trust and the Company and
without liability on the part of the Trust and the Company, except in both cases
as provided in Sections 6(B), 7, 8 and 9. The provisions of this Section shall
not in any way affect the liability of any defaulting Underwriter to the Trust,
the Company or the nondefaulting Underwriters arising out of such default. A
substitute underwriter hereunder shall become an Underwriter for all purposes of
this Agreement
11. MISCELLANEOUS. The respective agreements, representations,
warranties, indemnities and other statements of the Trust and the Company or
their officers and of the Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter, the Trust or the Company or any of the
officers, directors or controlling persons referred to in Sections 7 and 8
hereof, and shall survive delivery of and payment for the Capital Securities.
The provisions of Sections 6(B), 7, 8 and 9 shall survive the termination or
cancellation of this Agreement.
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This Agreement has been and is made for the benefit of the
Underwriters, the Trust and the Company, and each of their respective successors
and assigns, and, to the extent expressed herein, for the benefit of persons
controlling any of the Underwriters, the Trust or the Company, and directors and
officers of the Trust and the Company, and each of their respective successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include
any purchaser of Capital Securities from any Underwriter merely because of such
purchase.
All notices and communications hereunder shall be in writing
and mailed or delivered or by telephone or telegraph if subsequently confirmed
in writing, (a) if to the Representatives, c/o CIBC Oppenheimer Corp.,
Oppenheimer Tower, World Financial Center, New York, New York 10281 Attention:
Mark C. Biderman, (b) if to the Trust or the Company, to the address of the
Company set forth on the cover page of the Registration Statement, Attention:
Secretary.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflict of laws.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
HAMILTON CAPITAL TRUST I
By
------------------------------------
Name:
Title:
HAMILTON BANCORP INC.
By
------------------------------------
Name
Title:
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Confirmed:
CIBC OPPENHEIMER CORP.
RAYMOND JAMES & ASSOCIATES, INC.
Acting severally on behalf of themselves and as representatives of the several
Underwriters named in Schedule I annexed hereto.
CIBC OPPENHEIMER CORP.
By
------------------------------------
Name:
Title:
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Exhibit 1.1
SCHEDULE I
NUMBER OF
CAPITAL-SECURITIES
SECURITIES UNDERWRITER TO BE PURCHASED
- ---------------------- ------------------
CIBC Oppenheimer Corp.....................................
Raymond James & Associates, Inc...........................
--------------------
[1,200,000]
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