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Exhibit 1
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METROPOLITAN CAPITAL TRUST I
(a Delaware business trust)
2,500,000 Preferred Securities
_____% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
__________, 1998
Ryan, Beck & Co., Inc.
220 South Orange Avenue
Livingston, New Jersey 07039
Ladies and Gentlemen:
Metropolitan Capital Trust I (the "Trust"), a statutory
business trust organized under the Business Trust Act of the State of Delaware
(the "Delaware Act"), and Metropolitan Financial Corp., an Ohio corporation (the
"Corporation"), as depositor of the Trust and as guarantor (the Trust and the
Corporation are referred to collectively as the "Offerors"), hereby confirm
their agreement with Ryan, Beck & Co., Inc. (the "Underwriter"), with respect to
the issue and sale by the Trust and the purchase by the Underwriter of 2,500,000
(the "Initial Securities") of the Trust's _____% Cumulative Trust Preferred
Securities (the "Preferred Securities"). The Trust and the Corporation also
propose to issue and sell to the Underwriter, at the Underwriter's option, up to
an additional 375,000 Preferred Securities (the "Option Securities") as set
forth herein. The term "Preferred Securities" as used herein, unless indicated
otherwise, shall mean the Initial Securities and the Option Securities.
The Preferred Securities and the Common Securities (as defined
herein) are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement dated as of April 30, 1998 (the "Trust Agreement"), among the
Corporation, as depositor, and Wilmington Trust Company (the "Trust Company"), a
Delaware corporation, as property trustee (the "Property Trustee"), and
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Judith Z. Adam and David W. Gifford (the "Administrative Trustees" and, together
with the Property Trustee and the Delaware Trustee, the "Trustees") and the
holders from time to time of undivided interests in the assets of the Trust. The
Preferred Securities will be guaranteed by the Corporation, on a subordinated
basis and subject to certain limitations, with respect to distributions and
payments upon liquidation, redemption or otherwise (the "Guarantee") pursuant to
the Preferred Securities Guarantee Agreement to be dated as of April 30, 1998
(the "Guarantee Agreement") between the Corporation and the Trust Company, as
guarantee trustee (the "Guarantee Trustee"). The assets of the Trust will
consist of _____% junior subordinated debentures due June 30, 2028 (the "Junior
Subordinated Debentures") of the Corporation which will be issued under the
Indenture to be dated as of April 30, 1998 (the "Indenture"), between the
Corporation and the Trust Company, as trustee (the "Indenture Trustee"). The
Corporation has agreed to pay all costs, expenses and liabilities of the Trust
payable to third parties, with certain exceptions, pursuant to the Agreement as
to Expenses and Liabilities, dated as of April 30, 1998, between the Corporation
and the Trust (the "Expense Agreement"). Under certain circumstances, the Junior
Subordinated Debentures will be distributable to the holders of undivided
beneficial interests in the assets of the Trust. The entire proceeds from the
sale of the Preferred Securities will be combined with the entire proceeds from
the sale by the Trust to the Corporation of the Trust's common securities (the
"Common Securities") and will be used by the Trust to purchase an equivalent
amount of the Junior Subordinated Debentures.
The initial public offering price for the Preferred
Securities, the purchase price to be paid by the Underwriter for the Preferred
Securities, the commission per Preferred Security to be paid by the Corporation
to the Underwriter and the distribution of interest to be paid on the Preferred
Securities shall be agreed upon by the Corporation and the Underwriter, and such
agreement shall be set forth in a separate written instrument substantially in
the form of Exhibit A hereto (the "Price Determination Agreement"). The Price
Determination Agreement may take the form of an exchange of any standard form of
written telecommunication between the Corporation and the Underwriter and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Preferred Securities will be governed by this Agreement, as
supplemented by the Price Determination Agreement. From and after the date of
the execution and delivery of the Price Determination Agreement, this Agreement
shall be deemed to incorporate, and all references herein to "this Agreement"
shall be deemed to include, the Price Determination Agreement.
The Offerors have prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-1
(File Nos. 333-49701 and 333-49701-01) covering the registration of the
Preferred Securities, the Guarantee and the Junior Subordinated Debentures under
the Securities Act of 1933, as amended (the A1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Corporation will prepare and file, prior to the
effective date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such registration statement becomes effective is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto at the
time it becomes effective, is herein
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called the "Registration Statement", and the prospectus, included in the
Registration Statement at the time it becomes effective is herein called the
"Prospectus", except that if any revised prospectus provided to the Underwriter
by the Corporation for use in connection with the offering of the Preferred
Securities differs from the prospectus included in the Registration Statement at
the time it becomes effective (whether or not such prospectus is required to be
filed pursuant to Rule 424(b) under the 1933 Act ("Rule 424(b)"), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first furnished to the Underwriter for such use.
The Corporation understands that the Underwriter proposes to
make a public offering of the Preferred Securities (the "Offering") as soon as
possible after the Registration Statement becomes effective. The Underwriter may
assemble and manage a selling group of broker-dealers that are members of the
National Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Preferred Securities.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant
to and agree with the Underwriter that:
(i) When the Registration Statement shall become
effective and at all times subsequent thereto up to the Closing Time referred to
below (and, with respect to the Option Securities, up to the Option Closing Date
referred to below), (A) the Registration Statement and any amendments and
supplements thereto will comply in all material respects with the requirements
of the 1933 Act and the rules and regulations of the Commission under the 1933
Act (the A1933 Act Regulations"); (B) neither the Registration Statement nor any
amendment or supplement thereto will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and (C) neither the Prospectus
nor any amendment or supplement thereto will include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading, except that this representation and warranty
does not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Offerors by the
Underwriter expressly for use in the Registration Statement or the Prospectus,
or any information contained in any Form T-1 which is an exhibit to the
Registration Statement. The statements contained in the last paragraph of the
front cover page of the Prospectus, in the last paragraph on page (ii) of the
Prospectus and under the caption "Underwriting" in the Prospectus constitute the
only information furnished to the Offerors in writing by the Underwriter
expressly for use in the Registration Statement or the Prospectus.
(ii) Crowe Chizek and Company LLP, who are reporting
upon the audited financial statements included in the Registration Statement,
are independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
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(iii) The audited consolidated financial statements
(including the notes thereto) included in the Registration Statement present
fairly the consolidated financial position of the Corporation and its
subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of the Corporation and its subsidiaries for the
periods specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise stated therein. The
financial statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The selected
financial, pro forma and statistical data included in the Prospectus are
accurate in all material respects and present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
consolidated financial statements included or incorporated by reference in the
Registration Statement.
(iv) The Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of Ohio with
corporate power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the Prospectus. Each
subsidiary of the Corporation (other than Metropolitan Savings Bank of Cleveland
(the "Bank") and the Trust) is an entity duly organized, validly existing and in
good standing under the laws of its respective jurisdiction of organization with
corporate power and authority under such laws to own, lease and operate its
properties and conduct its business. The Corporation and each of its
subsidiaries (other than the Bank and the Trust) is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Corporation and its
subsidiaries, considered as one enterprise.
(v) The Corporation is duly registered with the
Office of Thrift Supervision as a savings and loan holding company under the
Home Owners' Loan Act of 1933, as amended (the "HOLA"); the deposit accounts of
the Bank are insured by the Savings Association Insurance Fund of the Federal
Deposit Insurance Corporation (the "FDIC"), up to the maximum allowable limits
thereof. The Offerors have all such power, authority, authorization, approvals
and orders as may be required to enter into this Agreement, to carry out the
provisions and conditions hereof and to issue and sell the Preferred Securities
and the Junior Subordinated Debentures.
(vi) The Bank is a savings association duly
organized, validly existing and in good standing under the laws of the State of
Ohio with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business; the Bank is duly qualified to
transact business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business
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affairs, assets or business prospects of the Bank and its subsidiaries,
considered as one enterprise. All of the outstanding shares of capital stock of
the Bank and each of the Corporation's other subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable and are
owned by the Corporation directly or indirectly, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind.
(vii) Except for the Trust and the Bank, the
Corporation does not have any "significant subsidiaries" as defined in Rule 1-02
of Regulation S-X of the Commission.
(viii) The Corporation had at the date indicated a
duly authorized and outstanding capitalization as set forth in the Prospectus
under the caption "Capitalization".
(ix) This Agreement has been duly authorized,
executed and delivered by the Offerors and, when duly executed by the
Underwriter, will constitute the valid and binding agreement of the Offerors
enforceable against the Offerors in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles. The Guarantee Agreement, the
Junior Subordinated Debentures, the Trust Agreement, the Expense Agreement and
the Indenture have each been duly authorized and, when duly executed and
delivered by the Corporation and, in the case of the Guarantee Agreement, by the
Guarantee Trustee, in the case of the Trust Agreement, by the Trustees, and in
the case of the Indenture, by the Indenture Trustee, will constitute valid and
legally binding obligations of the Corporation enforceable in accordance with
their respective terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or general equitable
principles. The Junior Subordinated Debentures are entitled to the benefits of
the Indenture; and the Guarantee Agreement, the Junior Subordinated Debentures,
the Trust Agreement, the Expense Agreement and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus. The Trust
Agreement, the Guarantee Agreement and the Indenture have been duly qualified
under the Trust Indenture Act of 1939, as amended (the "TIA").
(x) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the Delaware Act
with the power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus. The Trust has conducted no
business to date, and it will conduct no business in the future that would be
inconsistent with the description of the Trust set forth in the Prospectus. The
Trust is not a party to or bound by any agreement or instrument other than this
Agreement, the Trust Agreement and the agreements and instruments contemplated
by the Trust Agreement or described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described in the
Prospectus; and the Trust is not a party to or subject to any action, suit or
proceeding of any nature.
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(xi) The Preferred Securities have been duly and
validly authorized by the Trust for issuance and sale to the Underwriter
pursuant to this Agreement and, when executed and authenticated in accordance
with the terms of the Trust Agreement and delivered by the Trust to the
Underwriter pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued, fully paid and non-assessable and will
constitute valid and legally binding obligations of the Trust enforceable in
accordance with their terms and entitled to the benefits provided by the Trust
Agreement. The Preferred Securities conform in all material respects to the
description thereof in the Prospectus, and such description conforms in all
material respects to the rights set forth in the instruments defining the same;
the holders of the Preferred Securities will be entitled to the same limitation
of personal liability extended to shareholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware; and
the issuance of the Preferred Securities is not subject to any preemptive or
other similar rights.
(xii) The Common Securities have been duly and
validly authorized by the Trust and, upon delivery by the Trust to the
Corporation against payment therefor as described in the Prospectus, will be
duly and validly issued and fully paid undivided beneficial interests in the
assets of the Trust and will conform in all material respects to the description
thereof in the Prospectus; the issuance of the Common Securities is not subject
to any preemptive or other similar rights; and at the Closing Time, all of the
issued and outstanding Common Securities of the Trust will be directly owned by
the Corporation, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(xiii) The issuance and sale of the Preferred
Securities and the Common Securities by the Trust, the compliance by the Trust
with all of the provisions of this Agreement, the purchase of the Junior
Subordinated Debentures by the Trust, and the consummation of the transactions
herein contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, the Trust Agreement or
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Trust or any of its properties; and no
consent, approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court or other governmental
agency or body is required to be obtained by the Trust for the issue and sale of
the Preferred Securities and the Common Securities by the Trust, the purchase of
the Junior Subordinated Debentures by the Trust or the consummation by the Trust
of the transactions contemplated by this Agreement and the Trust Agreement,
except for such consents, approvals, authorizations, licenses, certificates,
permits, registrations or qualifications as have already been obtained, or as
may be required under the 1933 Act or the 1933 Act Regulations, the 1934 Act or
the 1934 Act Regulations, state securities laws or the TIA.
(xiv) Subject to the Corporation's repayment of its
outstanding 1993 101 subordinated notes from the proceeds of the Offering, as
disclosed in the prospectus, the issuance by the Corporation of the Guarantee
and the Junior Subordinated Debentures, the compliance by the Corporation with
all of the provisions of this Agreement, the execution, delivery and performance
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by the Corporation of the Trust Agreement, the Junior Subordinated Debentures,
the Guarantee Agreement, the Expense Agreement and the Indenture, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, loan agreement,
mortgage, deed of trust or other material agreement or instrument to which the
Corporation or any of its subsidiaries is a party or by which the Corporation or
any of its subsidiaries is bound or to which any of the property or assets of
the Corporation or any of its subsidiaries is subject except as specifically set
forth in the Registration Statement and the Prospectus, nor will such action
result in any violation of the provisions of the Articles of Incorporation or
Code of Regulations of the Corporation or of the corporate governance documents
of any of its subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Corporation, any of its subsidiaries or any of their respective properties; and
no consent, approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court or other governmental
agency or body is required for the issuance of the Guarantee and the Junior
Subordinated Debentures or the consummation by the Corporation of the other
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations, licenses, certificates, permits, registrations or
qualifications as have already been obtained, or as may be required under the
1933 Act or the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations,
state securities laws or the TIA.
(xv) The Trust has not engaged in any activity that
would result in the Trust being, and after giving effect to the offering and
sale of the Preferred Securities the Trust will not be, an "investment company",
or an entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(xvi) All of the outstanding shares of capital stock
of the Corporation have been duly authorized and validly issued and are fully
paid and non-assessable, and are not subject to the preemptive rights of any
shareholder of the Corporation.
(xvii) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse change in
the condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Corporation and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (B) any
transaction entered into by the Corporation or any subsidiary, other than in the
ordinary course of business, that is material to the Corporation and its
subsidiaries, considered as one enterprise, or (C) any dividend or distribution
of any kind declared, paid or made by the Corporation on its capital stock.
Neither the Corporation, the Bank nor any other subsidiary has any material
liability of any nature, contingent or otherwise, except as set forth in the
Prospectus.
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(xviii) Neither the Corporation, the Bank nor any
other subsidiary is in violation of any provision of its articles of
incorporation, code of regulations, constitution or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which it is a party or by which it may be bound
or to which any of its properties may be subject, except for such defaults that
in the aggregate would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs, assets or business
prospects of the Corporation and its subsidiaries, considered as one enterprise.
(xix) Except as disclosed in the Prospectus, there is
no action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the best of
the Corporation's knowledge, threatened against the Corporation, the Bank or any
other subsidiary that is required to be disclosed in the Prospectus or that
could reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Corporation and its subsidiaries, considered as one
enterprise, or that could reasonably be expected materially and adversely to
affect the properties or assets of the Corporation and its subsidiaries,
considered as one enterprise, or that could reasonably be expected materially
and adversely to affect the consummation of the transactions contemplated in
this Agreement; all pending legal or governmental proceedings to which the
Corporation, the Bank or any other subsidiary is a party that are not described
in the Prospectus, including ordinary routine litigation incidental to its
business, are, considered in the aggregate, not material.
(xx) There are no material contracts or documents of
a character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
described and filed as required.
(xxi) The Corporation and its subsidiaries each has
good and marketable title to all properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B) are
neither material in amount nor materially significant in relation to the
business of the Corporation and its subsidiaries, considered as one enterprise;
all of the leases and subleases material to the business of the Corporation and
its subsidiaries, considered as one enterprise, are in full force and effect,
and neither the Corporation, the Bank nor any other subsidiary has any notice of
any material claim that has been asserted by anyone adverse to the rights of the
Corporation, the Bank or any other subsidiary under any such lease or sublease
or affecting or questioning the rights of such corporation to the continued
possession of the leased or subleased premises under any such lease or sublease.
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(xxii) Each of the Corporation and its subsidiaries
owns, possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations necessary to
own or lease, as the case may be, and to operate its properties and to carry on
its business as presently conducted, and neither the Corporation, the Bank nor
any other subsidiary has received any notice of any restriction upon, or any
notice of proceedings relating to revocation or modification of, any such
licenses, permits, certificates, consents, orders, approvals or authorizations.
(xxiii) No labor problem with the employees of the
Corporation, the Bank or any other subsidiary exists or is imminent that could
materially adversely affect the condition (financial or otherwise), earnings,
business affairs or business prospects of the Corporation and its subsidiaries,
considered as one enterprise, and the Corporation is not aware of any existing
or imminent labor disturbance by the employees of any of its, the Bank's or any
other subsidiary's principal suppliers, contractors or customers that could
reasonably be expected to materially adversely affect the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Corporation and its subsidiaries, considered as one enterprise.
(xxiv) Except as disclosed in the Prospectus, there
are no persons with registration or other similar rights to have any securities
of the Corporation registered pursuant to the Registration Statement or
otherwise registered by the Corporation under the 1933 Act.
(xxv) Except as disclosed in the Prospectus, the
Corporation and its subsidiaries own or possess all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets or other
unpatented and/or unpatentable proprietary or confidential information systems
or procedures), trademarks, service marks and trade names (collectively, "patent
and proprietary rights") currently employed by them in connection with the
business now operated by them except where the failure to own, possess or
acquire such patent and proprietary rights would not have a material adverse
effect on the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Corporation and its subsidiaries, considered
as one enterprise. Neither the Corporation, the Bank nor any other subsidiary
has received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any patent or proprietary rights,
and which infringement or conflict (if the subject of any unfavorable decision,
rule and refinement, singly or in the aggregate) could reasonably be expected to
result in any material adverse change in the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Corporation and
its subsidiaries, considered as one enterprise.
(xxvi) The Corporation and its subsidiaries have
filed all federal, state and local income, franchise or other tax returns
required to be filed and have made timely payments of all taxes due and payable
in respect of such returns, and no material deficiency has been asserted with
respect thereto by any taxing authority.
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(xxvii) The Preferred Securities have been approved
for listing on The Nasdaq Stock Market, Inc.'s National Market (the "Nasdaq
National Market").
(xxviii) Neither the Trust, the Corporation nor any
of its subsidiaries has taken or will take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation, under
the Exchange Act or otherwise, of the price of the Preferred Securities.
(xxix) Neither the Corporation nor any subsidiary is
(by virtue of any action, omission to act, contract to which it is a party or by
which it is bound, or any occurrence or state of facts whatsoever) in violation
of any applicable foreign, federal, state, municipal or local statutes, laws,
ordinances, rules, regulations and/or orders issued pursuant to foreign,
federal, state, municipal or local statutes, laws, ordinances, rules, or
regulations (including those relating to any aspect of banking, savings and loan
holding companies, consumer credit, truth-in-lending, usury, currency
transaction reporting, environmental protection, occupational safety and health
and equal employment practices), except such violations that in the aggregate
will not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Corporation and its subsidiaries, considered as one enterprise.
(xxx) Neither the Corporation nor any subsidiary has
any agreement or understanding with any person (A) concerning the future
acquisition by the Corporation or the Bank of a controlling interest in any
entity or (B) concerning the future acquisition by any person of a controlling
interest in the Corporation or any subsidiary, in either case that is required
by the 1933 Act or the 1933 Act Regulations to be disclosed by the Corporation
that is not disclosed in the Prospectus.
(xxxi) The Corporation and its affiliates have
complied with all provisions of Section 517.075, Florida Statutes, to the extent
applicable, and all rules and regulations thereunder, relating to issuers doing
business in Cuba.
(b) Any certificate signed by any authorized officer of the
Corporation or any subsidiary and delivered to the Underwriter or to counsel for
the Underwriter pursuant to this Agreement shall be deemed a representation and
warranty by the Corporation to the Underwriter as to the matters covered
thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITER; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Trust, 2,500,000 Initial Securities at the purchase price and terms set
forth herein and in the Price Determination Agreement.
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(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants an option to the Underwriter to purchase up to an
additional 375,000 Preferred Securities in accordance with the terms set forth
herein and in the Price Determination Agreement. The option hereby granted will
expire at 5:00 p.m. New York City time on the 30th day after the date the
Registration Statement is declared effective by the Commission (or at 5:00 p.m.
New York City time on the next business day following the 30th day if such 30th
day is not a business day) and may be exercised, on one occasion only, solely
for the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Initial Securities upon notice by the
Underwriter to the Corporation setting forth the number of Option Securities as
to which the Underwriter is exercising the option and the time, date and place
of payment and delivery for the Option Securities. Such time and date of
delivery (the "Option Closing Date") shall be determined by the Underwriter but
shall not be later than five full business days after the exercise of said
option, nor in any event prior to Closing Time, as hereinafter defined, nor
earlier than the second business day after the date on which the notice of the
exercise of the option shall have been given.
(c) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Thompson Hine & Flory LLP, 3900 Key Center, 127 Public Square, Cleveland, Ohio
44114 or at such other place as shall be agreed upon by the Corporation and the
Underwriter, at 9:00 a.m. Eastern time on the third full business day after the
effective date of the Registration Statement, or at such other time not earlier
than three nor more than ten full business days thereafter as the Underwriter
and the Corporation shall determine (such date and time of payment and delivery
being herein called the "Closing Time"). In addition, in the event that any or
all of the Option Securities are purchased by the Underwriter, payment of the
purchase price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned office of Thompson Hine & Flory, or at such
other place as shall be agreed upon by the Corporation and the Underwriter, on
the Option Closing Date as specified in the notice from the Underwriter to the
Corporation. Payment for the Initial Securities and the Option Securities, if
any, shall be made to the Corporation by wire transfer of immediately available
funds, against delivery to the Underwriter for the account of the Underwriter of
Preferred Securities to be purchased by it.
(d) The Preferred Securities shall be issued in the form of
one or more fully registered global securities (the "Global Securities") in
book-entry form in such denominations and registered in the name of the nominee
of The Depository Trust Company ("DTC") or in such names as the Underwriter may
request in writing at least one business day before the Closing Date or the
Option Closing Date, as the case may be. The Global Securities representing the
Initial Securities or the Option Securities to be purchased will be made
available for examination by the Underwriter and counsel to the Underwriter not
later than 10:00 a.m. New York City time on the business day prior to the
Closing Time or the Option Closing Date, as the case may be.
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Section 3. CERTAIN COVENANTS OF THE OFFERORS. Each of the
Offerors covenants jointly and severally with the Underwriter as follows:
(a) The Offerors will use their best efforts to cause the
Registration Statement to become effective and will notify the Underwriter
immediately, and confirm the notice in writing, (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request of the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional information
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Preferred Securities for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes. The Offerors will use their best efforts to prevent the issuance
of any such stop order or of any order preventing or suspending such use and, if
any such order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) The Offerors will not at any time file or make any
amendment to the Registration Statement or, if the Offerors have elected to rely
upon Rule 430A of the 1933 Act Regulations ("Rule 430A"), any amendment or
supplement to the Prospectus of which the Underwriter shall not previously have
been advised and furnished a copy, or to which the Underwriter or counsel for
the Underwriter shall reasonably object.
(c) The Offerors have furnished or will furnish to the
Underwriter as many signed and conformed copies of the Registration Statement as
originally filed and of each amendment thereto, whether filed before or after
the Registration Statement becomes effective, copies of all exhibits and
documents filed therewith and signed copies of all consents and certificates of
experts as the Underwriter may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the
Underwriter, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as the
Underwriter may reasonably request, and the Offerors hereby consent to the use
of such copies for purposes permitted by the 1933 Act. The Offerors will deliver
or cause to be delivered to the Underwriter, without charge, as soon as the
Registration Statement shall have become effective (or, if the Offerors have
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested by the Underwriter during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as supplemented or amended) as the Underwriter may reasonably
request.
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(e) The Corporation will comply to the best of its ability
with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934
Act Regulations, so as to permit the completion of the distribution of the
Preferred Securities as contemplated in this Agreement and in the Prospectus.
If, at any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Preferred Securities, any event shall occur or
condition exist as a result of which it is necessary, in the reasonable opinion
of counsel for the Underwriter or counsel for the Offerors, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading, in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Corporation will promptly prepare
and file with the Commission, subject to Section 3(b) hereof, such amendment or
supplement as may be necessary to correct such untrue statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements.
(f) The Offerors will use their best efforts, in cooperation
with the Underwriter, to qualify the Preferred Securities and the Junior
Subordinated Debentures, for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Underwriter may designate and
to maintain such qualifications in effect for a period of not less than one year
from the effective date of the Registration Statement; PROVIDED, HOWEVER, that
the Corporation shall not be obligated to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. The Corporation will file such statements
and reports as may be required by the laws of each jurisdiction in which the
Preferred Securities have been qualified as above provided.
(g) The Corporation will make generally available (within the
meaning of Rule 158 of the 1933 Act Regulations ("Rule 158") to its
securityholders and the Underwriter as soon as practicable, but not later than
90 days after the close of the period covered thereby, an earnings statement of
the Corporation and its subsidiaries (in form complying with the provisions of
Rule 158) covering a period of at least 12 months beginning after the effective
date of the Registration Statement but not later than the first day of the
Corporation's fiscal quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its sale of
the Preferred Securities, combined with the entire proceeds from the issuance by
the Trust to the Corporation of the Trust's Common Securities, to purchase an
equivalent amount of Junior Subordinated Debentures from the Corporation. The
Corporation and the Bank will use the net proceeds received by them from the
sale of the Junior Subordinated Debentures in the manner specified in the
Prospectus under the caption "Use of Proceeds".
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(i) The Offerors, during the period when a prospectus is
required by the 1933 Act to be delivered in connection with sales of Preferred
Securities, will file promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time
the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the
Corporation will furnish to the Underwriter copies of all annual reports,
quarterly reports and current reports filed by the Corporation with the
Commission and such other documents, reports, proxy statements and information
as shall be furnished by the Corporation to its shareholders generally.
(k) The Corporation will provide to the holders of the
Preferred Securities annual reports containing financial statements audited by
the Corporation's independent auditors and, upon written request, the
Corporation's annual reports to the Commission on Form 10-K.
(l) The Offerors will file with the Nasdaq National Market all
documents and notices required by the Nasdaq National Market of companies that
have issued securities that are traded on the Nasdaq National Market, in the
over-the-counter market and quotations for which are reported by the Nasdaq
Stock Market.
(m) If, at the time the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A, then the Offerors will prepare, and file or transmit for filing with
the Commission in accordance with Rule 430A and Rule 424(b), copies of an
amended Prospectus or, if required by Rule 430A, a post-effective amendment to
the Registration Statement (including an amended Prospectus) containing all
information so omitted.
(n) The Corporation will, at its expense, subsequent to the
issuance of the Preferred Securities, prepare and distribute to the Underwriter
and counsel to the Underwriter, a bound volume containing copies of the
documents used in connection with the issuance of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or
thirty (30) days after the date of this Agreement, whichever occurs first, incur
any material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, or any
transaction with a related party which is required to be disclosed in the
Prospectus pursuant to Item 404 of Regulation S-K of the Commission, except as
contemplated by the Prospectus.
(p) During a period of thirty (30) days from the date of the
Prospectus, neither the Trust nor the Corporation will, without the prior
written consent of the Underwriter, directly or
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indirectly, offer, sell, offer to sell, or otherwise dispose of any Preferred
Securities, any other beneficial interests in the assets of the Trust, or any
preferred securities or other securities of the Trust or the Corporation that
are substantially similar to the Preferred Securities, including any guarantee
of such securities. The foregoing sentence shall not apply to any of the
Preferred Securities to be sold hereunder.
Section 4. PAYMENT OF EXPENSES.
(a) The Offerors jointly and severally will pay and bear all
costs and expenses incident to the performance of their respective obligations
under this Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, all amendments thereto, all preliminary
prospectuses, the Prospectus and any amendments or supplements thereto, and the
cost of furnishing copies thereof to the Underwriter, (b) the preparation,
printing and distribution of this Agreement, the Preferred Securities and the
preparation of one or more "blue sky surveys" (the "Blue Sky Survey"), (c) the
issuance and delivery of the Preferred Securities to the Underwriter, including
any transfer taxes payable upon the sale of the Preferred Securities to the
Underwriter, (d) the fees and disbursements of the Corporation's counsel and
accountants, (e) Nasdaq Stock Market filing fees, (f) fees and disbursements of
Patton Boggs, L.L.P. in connection with the Blue Sky Survey (not to exceed
$5,000 without the prior written permission of the Company, (g) the
qualification of the Preferred Securities under the applicable securities laws
in accordance with Section 3(f) hereof, (h) any filing fee for review of the
Offering with the NASD, (i) the legal fees and expenses of the Underwriter's
counsel (with Underwriter's counsel fees not to exceed $50,000, excluding Blue
Sky fees and expenses), and general out-of-pocket expenses of the Underwriter
(not to exceed $10,000), in either case without the prior written consent of the
Corporation, (j) the fees and expenses of the Indenture Trustee, including the
fees and disbursements of counsel for the Indenture Trustee, in connection with
the Indenture and the Junior Subordinated Debentures; (k) the fees and expenses
of the Property Trustee, including the fees and disbursements of counsel for the
Property Trustee, in connection with the Trust Agreement and the Certificate of
Trust, and (l) all other costs incident to the performance of the Offerors'
obligations hereunder. The Underwriter shall cause Patton Boggs. L.L.P. to
deliver a copy of the Blue Sky Survey to the Corporation.
(b) If (i) the Closing Time does not occur on or before
September 30, 1998, (ii) the Corporation abandons or terminates the Offering, or
(iii) this Agreement is terminated by the Underwriter in accordance with the
provisions of Section 5 or 9(a), the Corporation shall reimburse the Underwriter
for its reasonable out-of-pocket expenses, as set forth in this Section 4,
including the reasonable fees and disbursements of counsel for the Underwriter.
Section 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The
obligations of the Underwriter to purchase and pay for the Preferred Securities
that it has agreed to purchase pursuant to this Agreement are subject to the
following further conditions:
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(a) The Registration Statement shall have become effective not
later than 4:00 p.m., New York City time, on the first business day following
the date hereof, or at such later time or on such later date as the Underwriter
may agree to in writing; at the Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall be pending or, to the
Underwriter's knowledge or the knowledge of the Offerors, shall be contemplated
by the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the satisfaction of counsel for the
Underwriter. If the Offerors have elected to rely upon Rule 430A, a prospectus
containing the information required by Rule 430A shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A).
(b) At the Closing Time, the Underwriter shall have received:
(i) The favorable opinion, dated as of the Closing
Time, of Thompson Hine & Flory LLP, counsel for the Corporation, in form and
substance reasonably satisfactory to counsel for the Underwriter, substantially
in the form set forth in Exhibit B.
(ii) The favorable opinion, dated as of the Closing
Time, of Richards, Layton & Finger, P.A., special Delaware counsel for the
Offerors, in form and substance satisfactory to counsel for the Underwriter,
substantially in the form set forth in Exhibit C.
(iii) The favorable opinion, dated as of the Closing
Time, of Richards, Layton & Finger, P.A., counsel for the Indenture Trustee and
the Property Trustee, in form and substance satisfactory to counsel for the
Underwriter, substantially in the form set forth in Exhibit D.
(iv) The favorable opinion, dated as of the Closing
Time, of Patton Boggs, L.L.P., counsel for the Underwriter, in form and
substance satisfactory to the Underwriter.
In giving such opinions, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of the
United States and the laws of Ohio upon opinions of other counsel, who shall be
counsel satisfactory to counsel for the Underwriter, in which case the opinion
shall state that such counsel believes that it, the Underwriter and the
Underwriter's counsel are entitled to so rely upon the opinions of such other
counsel. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers or trustees of the Corporation, the Bank and the Trust
and certificates of public officials.
(c) At the Closing Time and again at the Option Closing Date,
if any, (i) the Registration Statement and the Prospectus, as they may then be
amended or supplemented, shall contain all statements that are required to be
stated therein under the 1933 Act and the 1933 Act
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Regulations and shall conform in all material respects to the requirements of
the 1933 Act and the 1933 Act Regulations, the Offerors shall have complied in
all material respects with Rule 430A (if they shall have elected to rely
thereon), and neither the Registration Statement nor the Prospectus, as they may
then be amended or supplemented, shall contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; (ii) there shall not have been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Corporation and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business; (iii) no action, suit or proceeding
at law or in equity shall be pending or, to the knowledge of the Offerors,
threatened against the Corporation or any subsidiary or the Trust that would be
required to be set forth in the Prospectus that is not set forth therein, and no
proceedings shall be pending or, to the knowledge of the Offerors, threatened
against either of the Offerors or any subsidiary of the Corporation before or by
any federal, state or other commission, board or administrative agency wherein
an unfavorable decision, ruling or finding would materially adversely affect the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Corporation and its subsidiaries, considered as one
enterprise, other than as set forth in the Prospectus; (iv) each of the Offerors
shall have complied, in all material respects, with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time or Option Closing Date, as applicable; (v) the other
representations and warranties of the Offerors set forth in Section 1(a) hereof
shall be accurate in all material respects as though expressly made at and as of
the Closing Time or Option Closing Date, as applicable; and (vi) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose been initiated or, to the knowledge of
the Offerors, threatened by the Commission. At the Closing Time, the Underwriter
shall have received a certificate of the President and the Senior Vice President
and Chief Financial Officer of the Corporation, dated as of the Closing Time, to
such effect.
(d) At the time that this Agreement is executed by the
Corporation, the Underwriter shall have received from Crowe Chizek and Company
LLP, a letter or letters, dated such date, in form and substance satisfactory to
the Underwriter, confirming that they are independent certified public
accountants with respect to the Corporation within the meaning of the 1933 Act
and the 1933 Act Regulations, and stating in effect that with respect to the
Corporation:
(i) in their opinion, the consolidated financial
statements as of December 31, 1997 and 1996, and for each of the years in the
three year period ended December 31, 1997 and the related financial statement
schedules, if any, included in the Registration Statement and the Prospectus and
covered by their opinions included therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations;
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(ii) on the basis of procedures (but not an audit in
accordance with generally accepted accounting standards) specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, INTERIM FINANCIAL INFORMATION,
including a reading of the latest available interim consolidated financial
statements of the Corporation, a reading of the minutes of all meetings of the
Board of Directors of the Corporation and the Bank and of the Audit-Compliance
and Electronic Data Processing and Executive Committees of the Board of
Directors of the Bank since January 1, 1998, inquiries of certain officials of
the Corporation and its subsidiaries responsible for financial and accounting
matters, and such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) the unaudited interim consolidated
financial information included in the Prospectus, if any, do not comply as to
form in all material respects with applicable accounting requirements of the
1933 Act, or are not presented in conformity with generally accepted accounting
principles applied on a basis consistent with that of the audited financial
statements included in the Prospectus;
(B) at a specified date not more than three
days prior to the date of this Agreement, there was any increase in long-term
debt or Federal Home Loan Bank advances of the Corporation and its consolidated
subsidiaries or any decrease in total assets, total deposits or holders' equity
of the Corporation and its consolidated subsidiaries, any increase in the number
of outstanding shares of capital stock of the Corporation and its consolidated
subsidiaries or any increase or decrease in loan loss allowance of the
Corporation and its consolidated subsidiaries, in each case as compared with
amounts shown in the financial statements at December 31, 1997 included in the
Registration Statement, except in all cases for changes, increases or decreases
that the Registration Statement discloses have occurred or may occur; or
(C) for the period from January 1, 1998 to a
specified date not more than three days prior to the date of this Agreement,
there was any decrease in consolidated net interest income, net income or net
income per share, in each case as compared with a period of comparable length in
the preceding year, except in all cases for increases or decreases that the
Registration Statement discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in
clause (ii) above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages, numerical
data and financial information appearing in the Registration Statement
(including the Selected Consolidated Financial Data) (having compared such items
with, and have found such items to be in agreement with, the financial
statements of the Corporation or general accounting records of the Corporation,
as applicable, which are subject to the Corporation's internal accounting
controls or other data and schedules prepared by the Corporation from such
records).
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(e) At the Closing Time, the Underwriter shall have received
from Crowe Chizek and Company, LLP a letter, in form and substance satisfactory
to the Underwriter and dated as of the Closing Time, reaffirming the statements
made in the letter(s) furnished pursuant to Section 5(d) hereof, except that the
inquiries specified in Section 5(d) hereof shall be made based upon the latest
available unaudited interim consolidated financial statements and the specified
date referred to shall be a date not more than three days prior to the Closing
Time.
(f) At the Closing Time, counsel for the Underwriter shall
have been furnished with all such documents, certificates and opinions as they
may request for the purpose of enabling them to pass upon the issuance and sale
of the Preferred Securities as contemplated in this Agreement and the matters
referred to in Section 5(c) hereof and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Offerors, the performance of any of the covenants of the Offerors or the
fulfillment of any of the conditions herein contained; and all proceedings taken
by the Corporation at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Preferred Securities and the Junior
Subordinated Debentures as contemplated in this Agreement shall be satisfactory
in form and substance to the Underwriter and to counsel for the Underwriter.
(g) Between the date of this Agreement and the Closing Time,
(i) no downgrading shall have occurred in the rating accorded any securities of
the Corporation or any deposit instruments of the Bank by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the 1933 Act Regulations and (ii)
no such organization shall have given any notice of any intended or potential
downgrading or of any surveillance or review, with possible negative
implications, of its rating of any of the Corporation's securities or any
deposit instruments of the Bank.
(h) The Corporation shall have paid, or made arrangements
satisfactory to the Underwriter for the payment of, all such expenses as may be
required by Section 4 hereof.
(i) In the event the Underwriter exercises its option provided
in Section 2 hereof to purchase all or any portion of the Option Securities, the
obligations of the Underwriter to purchase the Option Securities that it has
agreed to purchase shall be subject to the receipt by the Underwriter on the
Option Closing Date of:
(i) A certificate, dated the Option Closing Date, of
the President and the Senior Vice President and Chief Financial Officer of the
Corporation confirming that the certificate delivered at the Closing Time
pursuant to Section 5(c) hereof remains true as of the Option Closing Date;
(ii) The favorable opinion of Thompson Hine & Flory
LLP, counsel for the Corporation, addressed to the Underwriter and dated the
Option Closing Date, in form
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satisfactory to counsel to the Underwriter, relating to the Option Securities
and otherwise to the same effect as the opinion required by Section 5(b)(i)
hereof;
(iii) The favorable opinion of Richards, Layton &
Finger, P.A., special Delaware counsel for the Offerors, addressed to the
Underwriter and dated the Option Closing Date, in form satisfactory to counsel
to the Underwriter, relating to the Option Securities and otherwise to the same
effect as the opinion required by Section 5(b)(ii) hereof;
(iv) The favorable opinion of Richards, Layton &
Finger, P.A., counsel for the Indenture Trustee and the Property Trustee,
addressed to the Underwriter and dated the Option Closing Date, in form
satisfactory to counsel to the Underwriter, relating to the Option Securities
and otherwise to the same effect as the opinion required by Section 5(b)(iii)
hereof;
(v) The favorable opinion of Patton Boggs, L.L.P.,
counsel to the Underwriter, dated the Option Closing Date, relating to the
Option Securities and otherwise to the same effect as the opinion required by
Section 5(b)(iv) hereof; and
(vi) A letter from Crowe Chizek and Company LLP
addressed to the Underwriter and dated the Option Closing Date, in form and
substance satisfactory to the Underwriter and substantially the same in form and
substance as the letter furnished to the Underwriter pursuant to Section 5(e)
hereof.
(j) The Preferred Securities, the Guarantee and the Junior
Subordinated Debentures shall have been qualified or registered for sale, or
subject to an available exemption from such qualification or registration, under
the Blue Sky or securities laws of such jurisdictions as shall have been
reasonably specified by the Underwriter, and the Offering contemplated by this
Agreement shall have been cleared by the NASD.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement, this Agreement may
be terminated by the Underwriter on notice to the Offerors at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party, except as provided in Section 4 of this Agreement.
Notwithstanding any such termination, the provisions of Sections 4, 6, 10 and 12
of this Agreement shall remain in effect.
Section 6. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and
hold harmless the Underwriter, each officer, director, employees and agent of
the Underwriter, and each person, if any, who controls the Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any loss, liability, claim, damage and expense whatsoever (which shall
include,
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but not be limited to, amounts incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim or
investigation whatsoever and any and all amounts paid in settlement of any claim
or litigation, provided such settlement is entered into with the consent of the
Offerors as provided herein), as and when incurred, arising out of, based upon
or in connection with (i) any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, contained in (A) any preliminary prospectus, the Registration
Statement or the Prospectus (as from time to time amended and supplemented), or
any amendment or supplement thereto or in any document incorporated by reference
therein or required to be delivered with any preliminary prospectus or the
Prospectus or (B) in any application or other document or communication
(collectively called an "application") executed by or on behalf of the
Corporation or the Trust or based upon written information furnished by or on
behalf of the Corporation or the Trust filed in any jurisdiction in order to
qualify the Preferred Securities under the "blue sky" or securities laws thereof
or filed with the Commission, the NASD or any securities exchange, unless such
statement or omission or alleged statement or omission was made in reliance upon
and in conformity with written information concerning the Underwriter, the
Underwriting Agreement or the compensation of the Underwriter furnished to the
Offerors by or on behalf of the Underwriter expressly for inclusion in any
preliminary prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or in any application, as the case may be, or
(ii) any breach of any representation, warranty, covenant or agreement of the
Offerors contained in the Underwriting Agreement. For purposes of this section,
the term "expense" shall include, but not be limited to, counsel fees and costs,
court costs, out-of-pocket costs and compensation for the time spent by any of
the Underwriter's directors, officers, employees and agents according to his or
her normal hourly billing rates. The indemnification provisions shall also
extend to all directors, officers, employees and agents and controlling persons
of each affiliate of the Underwriter.
(b) The Underwriter agrees to indemnify and hold harmless each
of the Offerors, each of their directors or trustees, each officer who signed
the Registration Statement, and each person, if any, who controls the Offerors
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) above, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or any application in
reliance upon and in conformity with written information about the Underwriter,
the Underwriting Agreement or the compensation of the Underwriter, furnished to
either of the Offerors by the Underwriter expressly for inclusion in such
preliminary prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or in any application.
(c) An indemnified party shall give prompt notice to each
indemnifying party if any action, suit, proceeding or investigation is commenced
in respect of which indemnity may be
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sought hereunder, but failure to notify an indemnifying party shall not relieve
the indemnifying party from its obligations to indemnify hereunder, except to
the extent that the indemnifying party has been prejudiced in any material
respect by such failure. If it so elects within a reasonable time after receipt
of such notice, an indemnifying party may assume the defense of such action,
including the employment of counsel satisfactory to the indemnified parties and
the payment of all expenses of the indemnified party in connection with such
action. Such indemnified party or parties shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action or the
indemnifying party shall not have promptly employed counsel satisfactory to such
indemnified party or parties or such indemnified party or parties shall have
reasonably concluded that there may be one or more legal defenses available to
it or them or to other indemnified parties that are different from or additional
to those available to one or more of the indemnifying parties, in any of which
events such fees and expenses shall be borne by the indemnifying party and the
indemnifying party shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties. The Offerors shall be jointly and
severally liable for any settlement of any claim against the Underwriter (or any
of its directors, officers, employees, agents or controlling persons) made with
the Offerors' written consent, which consent shall not be unreasonably withheld.
The Offerors shall not, without the written consent of the Underwriter, settle
or compromise any claim against the Underwriter (or any of its directors,
officers, employees, agents or controlling persons) based upon circumstances
giving rise to an indemnification claim against the Offerors hereunder unless
such settlement or compromise provides that the Underwriter and the other
indemnified parties shall be unconditionally and irrevocably released from all
liability in respect to such claim.
(d) In order to provide for just and equitable contribution,
if a claim for indemnification pursuant to these indemnification provisions is
made but it is found in a final judgment by a court that such indemnification
may not be enforced by the indemnified party in such case, even though the
express provisions hereof provide for indemnification in such case, then the
Offerors, on the one hand, and the Underwriter, on the other hand, shall
contribute to the amount paid or payable by such indemnified person as a result
of such loss, liability, claim, damage and expense in such proportion as is
appropriate to reflect the relative benefits received by the Offerors, on the
one hand, and the Underwriter, on the other hand, from the underwriting, and
also the relative fault of the Offerors, on the one hand, and the Underwriter,
on the other hand, in connection with the statements, acts or omissions which
resulted in such loss, liability, claim, damage and expense, and any other
relevant equitable considerations. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, the Underwriter shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
commission paid to the Underwriter with respect to the Preferred Securities
purchased by the Underwriter.
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(e) The indemnity and contribution agreements contained herein
are in addition to any liability which the Offerors may otherwise have to the
Underwriter.
(f) Neither termination nor completion of the engagement of
the Underwriter nor any investigation made by or on behalf of the Offerors or
the Underwriter shall affect the indemnification obligations of the Offerors or
the Underwriter hereunder, which shall remain and continue to be operative and
in full force and effect.
Section 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. The representations, warranties, indemnities, agreements and
other statements of the Offerors or their officers or trustees or the
Underwriter set forth in or made pursuant to this Agreement will remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Offerors or the Underwriter or any controlling person and
will survive delivery of and payment for the Preferred Securities.
Section 8. OFFERING BY THE UNDERWRITER. The Offerors are
advised by the Underwriter that the Underwriter proposes to make a public
offering of the Preferred Securities, on the terms and conditions set forth in
the Registration Statement from time to time as and when the Underwriter deems
advisable after the Registration Statement becomes effective. Because the NASD
is expected to view the Preferred Securities as interests in a direct
participation program, the offering of the Preferred Securities is being made in
compliance with the applicable provisions of Rule 2810 of the NASD's Conduct
Rules.
Section 9. TERMINATION OF AGREEMENT.
(a) The Underwriter may terminate this Agreement, by notice to
the Offerors, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Corporation
and its subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis, the effect of which on the financial markets of the United States is
such as to make it, in the Underwriter's judgment, impracticable to market the
Preferred Securities or enforce contracts for the sale of the Preferred
Securities, or (iii) if trading in any securities of the Corporation has been
suspended or materially limited by the Commission or the NASD, or if trading
generally on the New York Stock Exchange or in the over-the-counter market has
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by such exchange or
by order of the Commission, the NASD or any other governmental authority with
appropriate jurisdiction over such matters, or (iv) if a banking moratorium has
been declared by either federal or State authorities, or (v) if there shall have
been such material and substantial change in the market for securities in
general or in political, financial
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or economic conditions as in the Underwriter's judgment makes it inadvisable to
proceed with the offering, sale and delivery of the Preferred Securities on the
terms contemplated by the Prospectus, or (vi) if the Underwriter reasonably
determines (which determination shall be in good faith) that there has not been
satisfactory disclosure of all relevant financial information relating to the
Offerors in the Offerors' disclosure documents and that the sale of the
Preferred Securities is inadvisable given such disclosures.
(b) If this Agreement is terminated by the Offerors or the
Underwriter pursuant to the terms hereof, such termination shall be without
liability of any party to any other party, except to the extent provided in
Section 4 hereof. Notwithstanding any such termination, the provisions of
Sections 4, 6, 10 and 12 hereof shall remain in effect.
Section 10. NOTICES. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices shall be addressed as follows:
If to the Underwriter:
Ryan, Beck & Co., Inc.
220 South Orange Avenue
Livingston, New Jersey 07039
Attention: Bruce G. Miller, Senior Vice President
with a copy to:
Patton Boggs, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037
Attention: Mary M. Sjoquist, Partner
If to the Corporation or the Trust:
Metropolitan Financial Corp.
6001 Landerhaven Drive
Mayfield Heights, Ohio 44124
with a copy to:
Thompson Hine & Flory LLP
3900 Key Center
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127 Public Square
Cleveland, Ohio 44114
Attention: Paul N. Harris, Partner
Section 11. PARTIES. This Agreement is made solely for the
benefit of the Underwriter, and the officers, directors, employees and agents of
the Underwriter, to the extent provided in Section 6 hereof, the Trust and the
Corporation and, to the extent provided in Section 6 hereof, any person
controlling the Trust, the Corporation or the Underwriter, and the directors of
the Corporation, or trustees of the Trust, their respective officers who have
signed the Registration Statement, and their respective executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser, as such purchaser, from the
Underwriter of the Preferred Securities.
Section 12. ARBITRATION. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any persons bound
hereby arising out of, or by virtue of, or in connection with, or otherwise
relating to this Agreement shall be submitted to and settled by arbitration
conducted in Cleveland, Ohio before one or three arbitrators, each of whom shall
otherwise be knowledgeable in the field of securities law and investment
banking. Such arbitration shall be conducted in accordance with the rules then
existing of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or in any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 13. GOVERNING LAW. This Agreement shall be governed by
the laws of the State of New Jersey.
Section 14. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Corporation and the
Underwriter in accordance with its terms.
Very truly yours,
METROPOLITAN CAPITAL TRUST I
By: Metropolitan Financial Corp., as Depositor
METROPOLITAN FINANCIAL CORP.
By:
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Name:
Title:
By:
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Name:
Title:
Confirmed and accepted as of
the date first above written:
RYAN, BECK & CO., INC.
By:
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Name:
Title:
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