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Exhibit 1
METROPOLITAN FINANCIAL CORP.
300,000 Shares of Common Stock
No Par Value
METROPOLITAN CAPITAL TRUST II
(a Delaware business trust)
1,500,000 Preferred Securities
_____% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Preferred Security)
UNDERWRITING AGREEMENT
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______, 1999
Ryan, Beck & Co., Inc.
220 South Orange Avenue
Livingston, New Jersey 07039
Ladies and Gentlemen:
Metropolitan Financial Corp. an Ohio corporation (the "Corporation")
hereby confirms its agreement with Ryan, Beck & Co., Inc. (the "Underwriter")
with respect to the issue and sale by the Corporation and the purchase by the
Underwriter of 300,000 shares (the "Initial Shares") of the Corporation's Common
Stock, no par value (the "Common Stock"). In addition, the Corporation proposes
to issue and sell to the Underwriter, at the Underwriter's option, up to an
additional 45,000 shares (the "Option Shares") of Common Stock as set forth
herein. The term "Shares" as used herein, unless indicated otherwise, shall mean
the Initial Shares and the Option Shares.
Metropolitan Capital Trust II (the "Trust"), a statutory business trust
organized under the Business Trust Act of the State of Delaware (the "Delaware
Act"), and the Corporation, as depositor of the Trust and as guarantor (the
Trust and the Corporation are referred to collectively as the "Offerors"), also
hereby confirm their agreement with the Underwriter, with respect to the issue
and sale by the Trust and the purchase by the Underwriter of 1,500,000 (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 225,000 Preferred Securities (the "Option Securities") as set forth
herein. The term "Preferred Securities" as used herein, unless indicated
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otherwise, shall mean the Initial Securities and the Option Securities. The
Shares and the Preferred Securities are collectively referred to herein as the
"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 to be dated as of ______, 1999 (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 Judith
Z. Adam and David W. Gifford (the "Administrative Trustees" and, together with
the Property 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 ______, 1999 (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, 2029 (the "Junior Subordinated Debentures")
of the Corporation which will be issued under the Indenture to be dated as of
______, 1999 (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 ______, 1999, 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 public offering price for the Securities, the purchase price to be
paid by the Underwriter for the 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 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.
333-72991 and 333-72991-01) covering the registration of the Shares, the
Preferred Securities, the Guarantee and the Junior Subordinated Debentures under
the Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Corporation will prepare and file, prior to the
effective date of such registration statement, an amendment to such registration
statement, including a final prospectus.
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Each prospectus used before the time such registration statement becomes
effective is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto at the time it becomes effective, is
herein called the "Registration Statement," and the prospectus, included in the
Registration Statement at the time it becomes effective is herein called the
"Prospectus," except that if any revised prospectus provided to the Underwriter
by the Corporation for use in connection with the offering of the 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 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 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 Shares and the Option Securities, up to the Option
Closing Date referred to below), (A) the Registration Statement and any
amendments and supplements thereto will comply in all material respects with the
requirements of the 1933 Act and the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"); (B) neither the Registration
Statement nor any amendment or supplement thereto will contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
(C) neither the Prospectus nor any amendment or supplement thereto will include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein 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 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.
(iii) The audited consolidated financial statements (including
the notes thereto) included in the Registration Statement present fairly the
consolidated financial position
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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 Bank & Trust Company (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 Shares, 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 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
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indirectly, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind.
(vii) Except for the Trust, Metropolitan Capital Trust I 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; the Trust is not, and at the Closing Time will not be, to the knowledge
of the Offerors, classified as an association taxable as a corporation for
United States federal income tax purposes; and the Trust is, and as of the
Closing Time will be, treated as a consolidated subsidiary of the Corporation
pursuant to generally accepted accounting principles.
(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
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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 receipt of a waiver from
Huntington National Bank pursuant to the Corporation's line of credit with
Huntington National Bank (the "Huntington Line of Credit") with respect to the
Offering, 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 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
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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 Corporation and the Trust have not engaged in any
activity that would result in the Trust or Corporation being, and after giving
effect to the offering and sale of the Securities the Trust and the Corporation
will not be, "investment companies," or entities "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. The Shares to be sold by the Corporation have been duly and
validly authorized and, upon issuance and delivery and payment therefore in the
manner herein described, will be validly issued, fully paid and nonassessable.
Upon the effective date of the offering of the Shares, there will be no
preemptive rights or other rights to subscribe for or to purchase, or any
restriction upon the transfer of, any shares of Common Stock pursuant to the
Corporation's Articles of Incorporation, Code of Regulations or other governing
documents or any agreement or other instrument to which the Corporation is a
party or by which it may be bound, except as described in the Prospectus, and
except for restriction on transfer imposed under applicable securities laws. The
Shares 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.
(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.
(xviii) Neither the Corporation, the Bank, Metropolitan
Capital Trust I nor any other subsidiary is in violation of any provision of its
articles of incorporation, code of
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regulations, constitution, by-laws or Trust Agreement 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.
(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.
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(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.
(xxvii) The Preferred Securities have been approved for
listing on The Nasdaq Stock Market, Inc.'s National Market (the "Nasdaq National
Market") and a Notification Form for Listing of Additional Shares has been
properly and timely submitted to the Nasdaq National Market with respect to the
Shares.
(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 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
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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) All offers and sales of the Corporation's securities
prior to the date hereof were at all relevant times duly registered or exempt
from the registration requirements of the 1933 Act and were duly registered or
the subject of an available exception from the registration requirements of the
applicable state securities or Blue Sky laws.
(xxxii) 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.
(xxxiii) The Corporation is in compliance with all material
provisions of the Foreign Corrupt Practices Act of 1977. (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.
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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 Corporation agrees
to sell to the Underwriter, and the Underwriter agrees to purchase from the
Corporation, 300,000 Initial Shares at the purchase price and terms set forth
herein and in the Price Determination Agreement.
(b) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the Trust,
1,500,000 Initial Securities at the purchase price and terms set forth herein
and in the Price Determination Agreement.
(c) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Corporation hereby grants an option to the Underwriter to purchase up to an
additional 45,000 Shares and the Trust hereby grants an option to the
Underwriter to purchase up to an additional 225,000 Preferred Securities, in
accordance with the terms set forth herein and in the Price Determination
Agreement. The options 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 with respect to each option, solely for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Shares and Initial Securities upon
notice by the Underwriter to the Corporation setting forth the number of Option
Shares or Option Securities, as the case may be, as to which the Underwriter is
exercising the option and the time, date and place of payment and delivery for
the Option Shares or Option Securities. Such time and date of delivery (each an
"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.
(d) Payment of the purchase price for, and delivery of certificates
for, the Initial Shares and 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 Shares or Option Securities are purchased by the Underwriter,
payment of the purchase price for, and delivery of certificates for, such Option
Shares or 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 Shares
and Initial Securities and the Option Shares and Option Securities, if any,
shall be made to the Offerors by wire transfer of immediately available funds,
against delivery to the Underwriter for the account of the Underwriter of Shares
and Preferred Securities to be purchased by it.
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(e) The Shares and the Preferred Securities shall be issued in the form
of two 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 Shares and Initial Securities or the Option Shares and Option Securities
to be purchased will be made available for examination by the Underwriter and
counsel to the Underwriter not later than 10:00 a.m. New York City time on the
business day prior to the Closing Time or the Option Closing Date, as the case
may be.
Section 3. CERTAIN COVENANTS OF THE OFFERORS. Each of the Offerors
covenants jointly and severally with the Underwriter as follows:
(a) The Offerors will use their best efforts to cause the Registration
Statement to become effective and will notify the Underwriter immediately, and
confirm the notice in writing, (i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, shall have become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request of the Commission to amend the Registration Statement or amend or
supplement the Prospectus or for additional information and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
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
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when the Prospectus is required to be delivered under the 1933 Act, such number
of copies of the Prospectus (as supplemented or amended) as the Underwriter may
reasonably request.
(e) The 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
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 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 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
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 Shares and the Junior Subordinated Debentures in the manner
specified in the Prospectus under the caption "Use of Proceeds," including the
repayment of the full balance outstanding of the Huntington Line of Credit.
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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 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) The Corporation will not take any action which would cause or
result in the delisting of the Corporation's Common Stock or the Trust's
Preferred Securities on the Nasdaq National Market, prior to the Closing Time,
or, if the Underwriter exercises the options granted by the Offerors to cover
overallotments, prior to the Option Closing Date.
(n) 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.
(o) The Corporation will, at its expense, subsequent to the issuance of
the 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 Securities.
(p) 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.
(q) Except pursuant to this Agreement or with the Underwriter's written
consent, for a period of 180 days from the effective date of the Registration
Statement, the Offerors will not, and the Corporation has provided agreements
executed by each of its executive officers and directors, providing that for a
period of 180 days from the Closing Time, such person or entity will not offer
for sale, sell or grant any options (other than pursuant to existing employee
benefit plans and agreements, other existing compensation agreements and
existing stock options), rights or warrants with respect to any securities of
the Offerors, securities convertible into Common
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Stock or any other capital stock or other security of the Corporation or the
Trust, or otherwise dispose of directly or indirectly, any Securities of the
Offeror, any shares of Common Stock or such other securities or capital stock of
the Corporation or the Trust.
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 Securities and the preparation
of one or more "blue sky surveys" (the "Blue Sky Survey"), (c) the issuance and
delivery of the Securities to the Underwriter, including any transfer taxes
payable upon the sale of the 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 LLP in connection
with the Blue Sky Survey (not to exceed $5,000 without the prior written
permission of the Corporation), (g) the qualification of the 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 $75,000, 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 LLP to deliver a copy of the Blue Sky
Survey to the Corporation.
(b) If (i) the Closing Time does not occur on or before June 30, 1999,
(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 Securities that it has agreed
to purchase pursuant to this Agreement are subject to the following further
conditions:
(a) The Registration Statement shall have become effective not later
than 4:00 p.m., New York City time, on the first business day following the date
hereof, or at such later time or on such later date as the Underwriter may agree
to in writing; at the Closing Time, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall be pending or, to the Underwriter's knowledge
or the knowledge of the Offerors, shall be contemplated by the Commission, and
any request on the
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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 LLP, 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 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
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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 l(a)
hereof shall be accurate in all material respects as though expressly made at
and as of the Closing Time or Option Closing Date, as applicable; and (vi) no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose been initiated or, to the
knowledge of the Offerors, threatened by the Commission. At the Closing Time,
the Underwriter shall have received a certificate of the 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, 1998 and 1997, and for each of the years in the three year
period ended December 31, 1998 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;
(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, 1999, 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;
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(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 shareholders'
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, 1998 included
in the Registration Statement, except in all cases for changes, increases or
decreases that the Registration Statement discloses have occurred or may
occur; or
(C) for the period from January 1, 1999 to a
specified date not more than three days prior to the date of this Agreement,
there was any decrease in consolidated net interest income, net income or net
income per share, in each case as compared with a period of comparable length
in the preceding year, except in all cases for increases or decreases that the
Registration Statement discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in clause (ii)
above, 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).
(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 four 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
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 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
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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 Shares or Option
Securities, the obligations of the Underwriter to purchase the Option Shares or
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 satisfactory to counsel to the Underwriter, relating to
the Option Shares and/or Option Securities and otherwise to the same effect as
the opinion required by Section 5(b)(i) hereof;
(iii) If the option to purchase the Option Securities is
exercised, 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 solely to the Option Securities and otherwise to the same effect as the
opinion required by Section 5(b)(ii) hereof;
(iv) If the option to purchase the Option Securities is
exercised, 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 solely 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 LLP, counsel to the
Underwriter, dated the Option Closing Date, relating to the Option Shares and/or
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 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.
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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, employee, counsel 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, 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 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, counsel and agents according to
his or her normal hourly billing rates. The indemnification provisions shall
also extend to all directors, officers, employees, counsel 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
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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 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. The Underwriter shall not, without
the written consent of the Offerors, settle or compromise any claim against the
Offerors (or any of its directors, officers, employees, agents or controlling
persons) based upon circumstances giving rise to an indemnification claim
against the Underwriter hereunder unless such settlement or compromise provides
that the Offerors 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
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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 or underwriting discount applicable to the
Shares, as the case may be, purchased by the Underwriter.
(e) The indemnity and contribution agreements contained herein are in
addition to any liability which the Offerors may otherwise have to the
Underwriter.
(f) Neither termination nor completion of the engagement of the
Underwriter nor any investigation made by or on behalf of the 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 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
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 reasonable judgment (which judgment
shall be in good faith), impracticable to market the Securities or enforce
contracts for the sale of the 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
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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 or economic conditions as in the
Underwriter's reasonable judgment (which judgment shall be in good faith)
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 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 LLP
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
Attention: David G. Lodge, President
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with a copy to:
Thompson Hine & Flory LLP
3900 Key Center
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 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 be
knowledgeable in the field of securities law and investment banking. Such
arbitration shall otherwise 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, the Trust
and the Underwriter in accordance with its terms.
Very truly yours,
METROPOLITAN CAPITAL TRUST II
By: Metropolitan Financial Corp.,
as Depositor
By:___________________________________
Name:
Title:
METROPOLITAN FINANCIAL CORP.
By:__________________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
RYAN, BECK & CO., INC.
By:________________________________
Name:
Title:
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EXHIBIT A
---------
METROPOLITAN FINANCIAL CORP.
300,000 Shares of Common Stock
No Par Value
METROPOLITAN CAPITAL TRUST II
(a Delaware business trust)
1,500,000 Preferred Securities
____% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Preferred Security)
PRICE DETERMINATION AGREEMENT
-----------------------------
______, 1999
Ryan, Beck & Co., Inc.
220 South Orange Avenue
Livingston, New Jersey 07039
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated the date hereof
(the "Underwriting Agreement"), among Metropolitan Capital Trust II, a Delaware
business trust (the "Trust"), Metropolitan Financial Corp., an Ohio corporation
(the "Corporation " and, together with the Trust, the "Offerors"), and Ryan,
Beck & Co., Inc. (the "Underwriter"). The Underwriting Agreement provides for
the purchase by the Underwriter from the Corporation, subject to the terms and
conditions set forth therein, of 300,000 shares of Common Stock, no par value,
of the Corporation (the "Shares"), subject to the Underwriter's option to
purchase up to an additional 45,000 Shares of Common Stock (to cover
overallotments, if any). Additionally, the Underwriting Agreement provides for
the purchase by the Underwriter from the Trust, subject to the terms and
conditions set forth therein, of 1,500,000 of the ____% Cumulative Trust
Preferred Securities of the Trust (the "Preferred Securities"), subject to the
Underwriter's option to
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purchase up to an additional 225,000 Preferred Securities (to cover
over-allotments, if any). This Agreement is the Price Determination Agreement
referred to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Offerors agree
with the Underwriter as follows:
1. The public offering price per Share shall be $_____.
2. The purchase price for the Shares to be paid by the Underwriter
shall be $______ per Share.
3. The public offering price per Preferred Security shall be $10.
4. The purchase price for the Preferred Securities to be paid by the
Underwriter shall be $10 per Preferred Security.
5. The commission per Preferred Security to be paid by the
Corporation to the Underwriter for its commitment hereunder shall be $0.375
per Preferred Security.
6. The distribution rate on the Preferred Securities shall be _____%
per annum.
The Offerors represent and warrant to the Underwriter that the
representations and warranties of the Offerors set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of New
Jersey.
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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, along with all counterparts and together with the Underwriting
Agreement, shall be a binding agreement between the Underwriter and the Offerors
in accordance with its terms and the terms of the Underwriting Agreement.
Very truly yours,
METROPOLITAN CAPITAL TRUST II
By: Metropolitan Financial Corp.,
as Depositor
By:______________________________
Name:
Title:
METROPOLITAN FINANCIAL CORP.
By:_______________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
RYAN, BECK & CO., INC.
By: __________________________
Name:
Title:
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EXHIBIT B
---------
The opinion of counsel to the Corporation to be delivered pursuant to
Section 5(b)(i) of the Underwriting Agreement shall be substantially to the
effect that:
(a) The Corporation is a corporation duly organized, validly existing
and in good standing under the laws of the State of Ohio, with requisite
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and is
registered as a savings and loan holding company under the Home Owners' Loan Act
of 1933, as amended (the "HOLA"). The Bank is a savings association duly
organized, validly existing and in good standing under the laws of the State of
Ohio, with requisite power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement.
Each of the Corporation's other subsidiaries is duly organized, validly existing
and in good standing under the laws of its respective jurisdiction of
incorporation, with requisite corporate power and authority to own, lease and
operate its respective properties and conduct its business as described in the
Registration Statement, except where the failure to 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.
(b) The Corporation and each subsidiary are duly qualified to transact
business as foreign corporations under the corporation laws of each jurisdiction
in which the Corporation or such subsidiary, as the case may be, owns or leases
property of a nature, has an office or transacts business of a type that would
make such qualification necessary, except where the failure so to qualify would
not have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Corporation and
its subsidiaries, considered as one enterprise.
(c) The deposit accounts of the Bank are insured by the Savings
Association Insurance Fund of the FDIC up to the maximum amount allowable by
law, and no proceedings for the termination or revocation of such membership or
insurance are pending or, to such counsel's knowledge, threatened.
(d) All of the issued and outstanding shares of capital stock of each
of the Corporation's direct or indirect subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable and, to such
counsel's knowledge, all of such shares, with the exception of the Preferred
Securities and of the 8.60% Cumulative Trust Preferred Securities issued by
Metropolitan Capital Trust I, are owned by the Corporation or one of its
wholly-owned subsidiaries, free and clear of any security interests, liens,
pledges, claims or other encumbrances, except where the failure to own such
shares free and clear of any security interests, liens, pledges, claims or other
encumbrances 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.
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(e) As of the dates specified therein, the Corporation had authorized
and outstanding capital stock as set forth in the Prospectus under the heading
"Capitalization." The capital stock of the Corporation conforms to the
description thereof contained in the Prospectus in all material respects. All of
the outstanding shares of the capital stock of the Corporation have been duly
authorized and are validly issued, fully paid and nonassessable, and the Shares
to be sold by the Corporation have been duly authorized, and upon issuance
thereof and payment therefor as provided herein, will be validly issued, fully
paid and nonassessable; none of the issued shares of Common Stock has been
issued in violation of or subject to any preemptive rights provided for by law
or by the Corporation's Articles of Incorporation. There are no preemptive
rights or, to the knowledge of such counsel, other rights to subscribe for or to
purchase, or any restriction upon the transfer of, the Shares pursuant to the
Corporation's Articles of Incorporation, Code of Regulations or other governing
documents or, to the knowledge of such counsel, any agreement or other
instrument to which the Corporation is a party or by which it may be bound
except as described in the Prospectus and except for restrictions on transfer
imposed under applicable securities laws.
(f) The Corporation has full corporate power and authority to execute,
deliver and perform the Underwriting Agreement and to issue the Junior
Subordinated Debentures as contemplated by the Prospectus; the Underwriting
Agreement has been duly authorized, executed and delivered by the Corporation;
and assuming the due authorization, execution and delivery thereof by the Trust
and the Underwriter, the Underwriting Agreement constitutes a legal, valid, and
binding obligation of each of the Corporation and the Trust, enforceable against
each of the Corporation and the Trust in accordance with its terms, except as
enforceability of the Underwriting Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, and by equitable principles limiting the right to specific
performance or other equitable relief and except as the obligations of the
Corporation under the indemnification and contribution provisions of Section 6
of the Underwriting Agreement may be limited by public policy, as to which no
opinion is expressed.
(g) The Trust Agreement has been duly authorized, executed and
delivered by the Corporation.
(h) The Guarantee Agreement has been duly authorized, executed and
delivered by the Corporation and is a valid and binding obligation of the
Corporation enforceable against the Corporation in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and by general equity principles (whether considered
in a proceeding in equity or at law).
(i) The Expense Agreement has been duly authorized, executed and
delivered by the Corporation and is a valid and binding obligation of the
Corporation enforceable against the Corporation in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and by general equity principles (whether considered
in a proceeding in equity or at law).
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(j) The Indenture has been duly authorized, executed and delivered by
the Corporation, and is a valid and binding agreement of the Corporation,
enforceable against the Corporation in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally and by general equity principles (whether considered in a
proceeding in equity or at law).
(k) The Junior Subordinated Debentures have been duly authorized,
executed and delivered by the Corporation and, when duly authenticated in
accordance with the Indenture and delivered and paid for as contemplated by the
Prospectus, will be valid and binding obligations of the Corporation, entitled
to the benefits of the Indenture and enforceable against the Corporation in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and by general equity
principles (whether considered in a proceeding in equity or at law).
(l) Each of the Indenture, the Trust Agreement and the Guarantee
Agreement has been duly qualified under the Trust Indenture Act.
(m) Neither the filing of the Registration Statement nor the offer or
sale of the Securities as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied, for or relating to
the registration of any Securities or any other securities of the Offerors. The
Underwriter will receive good and marketable title to the Securities to be sold
by the Offerors to be issued and delivered pursuant to this Agreement, free and
clear of all liens, encumbrances, claims, security interests, restrictions,
stockholders' agreements and voting trusts whatsoever. All offers and sales of
the Corporation's securities prior to the date hereof were at all relevant times
duly registered or exempt from the registration requirements of the Securities
Act and were duly registered or the subject of an exemption from the
registration requirements of applicable state securities or Blue Sky laws.
(n) Neither the Corporation nor the Trust is an "investment company" or
an entity "controlled" by an "investment company," as such terms are defined in
the Investment Company Act.
(o) The statements set forth in the Registration Statement under the
captions "Certain Federal Income Tax Consequences," "Description of the
Preferred Securities," "Description of the Junior Subordinated Debentures,"
"Description of the Guarantee," "Relationship Among the Preferred Securities,
the Junior Subordinated Debentures and the Guarantee," "Description of the
Common Stock," "Restrictions on Acquisition of the Corporation and the Bank" and
"ERISA Considerations" insofar as they purport to describe the provisions of the
laws referred to therein, fairly summarize the legal matters described therein.
(p) Such counsel are of the opinions ascribed to in the Registration
Statement under the caption "Certain Federal Income Tax Consequences."
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(q) The Registration Statement was declared effective under the 1933
Act on ___________, 1999, any required filing of the Prospectus or any
supplement thereto pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b) and no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
and, to the best of such counsel's knowledge, no proceedings therefor have been
initiated or threatened by the Commission.
(r) The Registration Statement (including the information required by
Rule 430A, if applicable) and the Prospectus and any amendment or supplement
thereto (except for the financial statements and other financial and statistical
data included therein or omitted therefrom, as to which such counsel need
express no opinion), as of their respective effective or issue dates, complied
as to form in all material respects with the applicable requirements of the 1933
Act and the 1933 Act Regulations.
(s) There are no legal or governmental proceedings to which the
Corporation or any subsidiary is a party or of which any property of the
Corporation or any subsidiary is the subject that are required to be disclosed
in the Registration Statement or that would affect the consummation of the
transactions contemplated in the Underwriting Agreement or the Indenture; and to
the best of such counsel's knowledge, there are no such proceedings that are
threatened or contemplated by governmental authorities or threatened by others.
(t) To such counsel's knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described in the Registration Statement or to be filed as exhibits thereto other
than those described therein or filed or incorporated by reference as exhibits
thereto; and such instruments as are summarized in the Registration Statement
are fairly summarized in all material respects.
(u) No approval, authorization, consent, registration, qualification or
other order of any public board or body is required in connection with the
execution and delivery of the Underwriting Agreement, the Trust Agreement, the
Guarantee Agreement, the Expense Agreement and the Indenture or the issuance and
sale of the Preferred Securities or the consummation by the Corporation of the
other transactions contemplated by the Underwriting Agreement, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement or the Indenture,
except such as have been obtained under the 1933 Act, the 1934 Act and the Trust
Indenture Act or such as may be required under the blue sky or securities laws
of various states in connection with the offering and sale of the Securities.
(v) To the best of such counsel's knowledge, each of the Corporation,
the Bank and each other subsidiary has all material licenses, permits and other
governmental authorizations currently required for the conduct of its business
as presently conducted.
(w) The execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement and the Indenture, the
issuance and sale of the Junior Subordinated Debentures, the compliance by the
Corporation with the provisions of the Junior Subordinated Debentures, the
Indenture, the Trust Agreement, the Guarantee Agreement, the Expense Agreement
and the Underwriting Agreement and the consummation of the
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transactions therein contemplated will not conflict with or constitute a
breach of, or default under, the articles of incorporation or code of
regulations of the Corporation or any subsidiary or a breach or default under
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument known to such counsel to which either the Corporation or any
subsidiary is a party or by which any of them or any of their respective
properties may be bound except for such breaches as would not have a material
adverse effect on the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Corporation and its subsidiaries
considered as one enterprise, nor will such action result in a violation on
the part of the Corporation or any subsidiary of any applicable law or
regulation or of any administrative, regulatory or court decree known to such
counsel.
(x) Such counsel has participated in conferences with officers and
other representatives of the Corporation, representatives of special Delaware
counsel to the Corporation and the Trust, representatives of the independent
accountants of the Corporation and representatives of the Underwriter and its
counsel at which the contents of the Registration Statement and Prospectus and
related matters were discussed. Such counsel has not, however, independently
verified the accuracy, completeness or fairness of statements contained in the
Registration Statement and the Prospectus, and such counsel advises the
Underwriter that, on the basis of the foregoing (and upon procedures set forth
in such counsel's opinion) and relying as to materiality to a large extent upon
facts provided to such counsel by officers and other representatives of the
Corporation, no facts have come to the attention of such counsel to lead it to
believe (a) that the Registration Statement (including the information required
by Rule 430A, if applicable) or any amendment thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need not comment), at the time the
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (b) that the Prospectus or any amendment or supplement thereto (except for
the financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need not comment), at the
time the Prospectus was issued, or at the Closing Time, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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EXHIBIT C
---------
The opinion of special Delaware counsel to the Corporation and the
Trust to be delivered pursuant to Section 5(b)(ii) of the Underwriting Agreement
shall be substantially to the effect that:
(a) 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.
(b) Under the Delaware Act and the Trust Agreement, the Trust has the
business trust power and authority to own its property and to conduct its
business, all as described in the Prospectus.
(c) The Trust Agreement constitutes a valid and binding obligation of
the Corporation and the Trustees and is enforceable against the Corporation and
the Trustees in accordance with its terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, receivership, liquidation, fraudulent
transfer, reorganization, moratorium and other similar laws relating to or
affecting the rights and remedies of creditors generally, (ii) general
principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law) and (iii) considerations of public policy or the
effect of applicable law relating to fiduciary duties.
(d) Under the Delaware Act and the Trust Agreement, the Trust has the
business trust power and authority to execute and deliver, and to perform its
obligations under, the Underwriting Agreement and to issue and perform its
obligations under the Preferred Securities and the Common Securities.
(e) Under the Delaware Act and the Trust Agreement, the execution and
delivery by the Trust of the Underwriting Agreement, and the performance by the
Trust of its obligations thereunder, have been duly authorized by all necessary
business trust action on the part of the Trust.
(f) The Preferred Securities have been duly authorized for issuance by
the Trust Agreement and, when issued, executed, authenticated and delivered in
accordance with the terms of the Trust Agreement against payment therefor as set
forth in the Underwriting Agreement, will be duly and validly issued and
(subject to the terms of the Trust Agreement) fully paid and nonassessable
undivided beneficial interests in the assets of the Trust entitled to the
benefits of the Trust Agreement (subject to the limitations set forth in
paragraph 3 above). The holders of the Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitations of personal
liability as are extended to holders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided
that such counsel need express no opinion with respect to the liability of any
holder of the Preferred Securities who is, was or may become a named Trustee of
the Trust.
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(g) The Common Securities have been duly authorized for issuance by the
Trust Agreement and, when issued, executed, and delivered to the Corporation
against payment therefor in accordance with the terms of the Trust Agreement,
will be duly and validly issued and (subject to the terms of the Trust
Agreement) fully paid and nonassessable undivided beneficial interests in the
assets of the Trust entitled to the benefits of the Trust Agreement (subject to
the limitations set forth in paragraph 3 above).
(h) Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and the Common Securities is not subject to any preemptive
rights.
(i) The issuance and sale by the Trust of the Preferred Securities and
Common Securities, the purchase by the Trust of the Junior Subordinated
Debentures, the execution, delivery and performance by the Trust of the
Underwriting Agreement, the consummation by the Trust of the transactions
contemplated by the Underwriting Agreement and the compliance by the Trust with
its obligations thereunder will not violate (i) any of the provisions of the
Certificate of Trust or the Trust Agreement or (ii) any applicable Delaware law
or administrative regulation.
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EXHIBIT D
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The opinion of counsel to Trust Company to be delivered pursuant to
Section 5(b)(iii) of the Underwriting Agreement shall be substantially to the
effect that:
(a) The Trust Company has been duly incorporated and is validly
existing in good standing as a banking corporation under the laws of the State
of Delaware.
(b) The Trust Company has full corporate power and authority to
execute, deliver and perform its obligations under the Trust Agreement, the
Indenture and the Guarantee Agreement.
(c) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement has been duly authorized, executed and delivered by the Trust Company
and constitutes a legal, valid and binding obligation of the Trust Company,
enforceable against the Trust Company, in accordance with its terms.
(d) The execution, delivery and performance by the Trust Company of the
Trust Agreement, the Guarantee Agreement and the Indenture do not conflict with
or result in a violation of the certificate of incorporation or by-laws of the
Trust Company.
(e) No consent, approval or authorization of, or registration with or
notice to, any governmental authority or agency of the State of Delaware of the
United States of America governing the banking or trust powers of the Trust
Company is required for the execution, delivery or performance by the Trust of
the Trust Agreement, the Indenture or the Guarantee Agreement.
(f) The Junior Subordinated Debentures delivered on the date hereof
have been duly authenticated by the Indenture Trustee in accordance with the
terms of the Indenture.
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