EXHIBIT 1.1
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320,000 Shares of Common Stock
(Par value $0.25 per share)
UNDERWRITING AGREEMENT
__________________, 1998
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Independent Bankshares, Inc., a Texas corporation (the "Company"), proposes
to issue and sell to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated (sometimes
referred to herein as the "Underwriter"), pursuant to the terms of this
Agreement, 320,000 shares of the Company's common stock, par value $0.25 per
share (the "Common Stock"). The aforementioned 320,000 shares of Common Stock
to be sold to you are herein called the "Firm Shares." Solely for the purpose
of covering over-allotments in the sale of the Firm Shares, the Company further
proposes to issue and sell to you, at your option (the "Option"), up to an
additional 48,000 shares of Common Stock (the "Option Shares") upon exercise of
the over-allotment option granted in Section 1 hereof. The Firm Shares and any
Option Shares are herein collectively referred to as the "Designated Shares" and
are more fully described in the Prospectus hereinafter defined.
The Company hereby confirms as follows its agreement with you in
connection with the proposed purchase of the Designated Shares.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED SHARES; DESCRIPTION OF
DESIGNATED SHARES.
On the basis of the representations, warranties and agreements herein
contained, and subject to the terms and conditions herein set forth, the Company
hereby agrees to issue and sell to the Underwriter, and the Underwriter agrees
to purchase at a purchase price of $____ per share (the "Purchase Price"), the
Firm Shares.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants to the Underwriter the Option to purchase all
or any portion of the 48,000 Option Shares, and upon the exercise of such Option
in accordance with this Section 1, the Company hereby agrees to issue and sell
to the Underwriter all or any portion of the Option Shares at the same Purchase
Price per share paid for the Firm Shares. The Option hereby granted shall
expire at 5:00 p.m. St. Louis time 30 days after the Effective Date (as
hereinafter defined) and may be exercised only for the purpose of covering over-
allotments which may be made in connection with the offering and distribution of
the Firm Shares. The Option may be exercised in whole or in part at any time
(but not more than once) by the Underwriter giving notice (confirmed in writing)
to the Company setting forth the number of Option Shares as to which the
Underwriter is exercising the Option and the time and date at the offices of
▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ for
payment and delivery of certificates for such Option Shares. Such time and date
of payment and delivery for the Option Shares (the "Option Closing Date") shall
be determined by the Underwriter, but shall not be earlier than two nor later
than five business days after the exercise of such Option, nor in any event
prior to the Closing Date (as hereinafter defined). The Option Closing Date may
be the same as the Closing Date.
Payment of the Purchase Price and delivery of certificates for the
Firm Shares shall be made at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or such other place as shall be agreed
to by the Underwriter and the Company, at 10:00 a.m., St. Louis time, on ______,
1998, or at such other time not more than five full business days thereafter as
the Company and the Underwriter shall determine (the "Closing Date"). If the
Underwriter exercises the Option to purchase any or all of the Option Shares,
payment of the Purchase Price and delivery of certificates for such Option
Shares shall be made on the Option Closing Date at the offices of ▇▇▇▇▇ &
▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as the Company and the Underwriter shall determine. Such payments
shall be made to an account designated by the Company by wire transfer, in same
day funds, in the amount of the aggregate Purchase Price therefor, against
delivery by or on behalf of the Company to the Underwriter of certificates for
the Designated Shares to be purchased by the Underwriter.
The Agreement contained herein with respect to the timing of the
Closing Date and Option Closing Date is intended to, and does, constitute an
express agreement, as described in Rule 15c6-1(c) and (d) promulgated under the
1934 Act (as defined herein), for a settlement date other than three or four
business days after the date of the contract, as the case may be.
Certificates for Designated Shares to be purchased by the Underwriter
shall be delivered by the Company in fully registered form in such authorized
denominations and registered in such names as the Underwriter shall request in
writing not later than 12:00 noon, St. Louis time, two business days prior to
the Closing Date and, if applicable, the Option Closing Date. Certificates for
Designated Shares to be purchased by the Underwriter shall be made available by
the Company to the Underwriter for inspection, checking and packaging at such
office as the Underwriter may designate in writing not later than 1:00 p.m., St.
Louis time, on the last business day prior to the Closing Date and, if
applicable, on the last business day prior to the Option Closing Date.
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Time shall be of the essence, and delivery of the certificates for the
Designated Shares at the time and place specified pursuant to this Agreement is
a further condition of the obligations of the Underwriter hereunder.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to, and agrees
with, the Underwriter, that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities Exchange
Act of 1934, as amended (the "1934 Act") and the rules and regulations
thereunder (the "1934 Act Regulations") at the time they were filed with
the Commission, complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and did not
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, in light of the circumstances in which they were made, not
misleading.
(ii) The Company, with Independent Capital Trust, has prepared
and filed with the Commission a registration statement on Form S-2 (File
Numbers 333-60649 and 333-60649-01) for the registration of, among other
securities, the Designated Shares under the Securities Act of 1933, as
amended (the "1933 Act"), including the related prospectus subject to
completion, and one or more amendments to such registration statement may
have been so filed, in each case in conformity in all material respects
with the requirements of the 1933 Act and the rules and regulations
promulgated thereunder (the "1933 Act Regulations"). Copies of such
registration statement, including any amendments thereto, each Preliminary
Prospectus (as defined herein) contained therein and the exhibits,
financial statements and schedules to such registration statement, as
finally amended and revised, have heretofore been delivered by the Company
to the Underwriter. After the execution of this Agreement, the Company
will file with the Commission (A) if such registration statement, as it may
have been amended, has been declared by the Commission to be effective
under the 1933 Act, a prospectus in the form most recently included in an
amendment to such registration statement (or, if no such amendment shall
have been filed, in such registration statement), with such changes or
insertions as are required by Rule 430A of the 1933 Act Regulations ("Rule
430A") or permitted by Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)") and as have been provided to and not objected to by the
Underwriter prior to (or as are agreed to by the Underwriter subsequent to)
the execution of this Agreement, or (B) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the 1933 Act, an amendment to such registration statement,
including a form of final prospectus, necessary to permit such registration
statement to become effective, a copy of which amendment has been furnished
to and not objected to by the Underwriter prior to (or is agreed to by the
Underwriter subsequent to) the execution of this Agreement. As used in
this Agreement, the term
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"Registration Statement" means such registration statement, as amended at
the time when it was or is declared effective under the 1933 Act, including
(1) all financial schedules and exhibits thereto, (2) all documents (or
portions thereof) incorporated by reference therein filed under the 1934
Act, and (3) any information omitted therefrom pursuant to Rule 430A and
included in the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion filed with such
registration statement or any amendment thereto including all documents (or
portions thereof) incorporated by reference therein under the 1934 Act
(including the prospectus subject to completion, if any, included in the
Registration Statement and each prospectus filed pursuant to Rule 424(a)
under the ▇▇▇▇ ▇▇▇); and the term "Prospectus" means the prospectus first
filed with the Commission pursuant to Rule 424(b)(1) or (4) or, if no
prospectus is required to be filed pursuant to Rule 424(b)(1) or (4), the
prospectus included in the Registration Statement, in each case including
the financial schedules and all documents (or portions thereof)
incorporated by reference therein under the 1934 Act. The date on which the
Registration Statement becomes effective is hereinafter referred to as the
"Effective Date."
(iii) The documents incorporated by reference in the Preliminary
Prospectus or Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the Commission, as
the case may be, complied in all material respects with the requirements of
the 1934 Act and the 1934 Act Regulations, and when read together and with
the other information in the Preliminary Prospectus or Prospectus, as the
case may be, at the time the Registration Statement became or becomes
effective and at the Closing Date and any Option Closing Date, did not or
will not, as the case may be, 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, in light of the circumstances
under which they were made, not misleading.
(iv) No order preventing or suspending the use of any Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) has been issued by the Commission, nor has the Commission, to
the knowledge of the Company, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary Prospectus, at
the time of filing thereof, (A) complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and (B) did not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, 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 Company by
the Underwriter expressly for inclusion in the Preliminary Prospectus or
the Prospectus (the "Underwriter's Information"). The Underwriter's
Information includes only the statements with respect to the public
offering of Designated Shares by the Underwriter set forth on the cover
page of the Prospectus, the legend concerning over-allotments and other
stabilizing activities on the inside front cover page of the Prospectus and
the first paragraph and the third sentence of the second paragraph under
the heading "Underwriting Sale of Common Stock" in the
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Prospectus and the third paragraph under the heading "Underwriting General"
in the Prospectus.
(v) At the Effective Date and at all times subsequent thereto,
up to and including the Closing Date and, if applicable, the Option Closing
Date, the Registration Statement and any post-effective amendment thereto
(A) complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations, and (B) did not and will not
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, in light of the circumstances under which they were made, not
misleading. At the Effective Date and at all times when the Prospectus is
required to be delivered in connection with offers and sales of Designated
Shares, including, without limitation, the Closing Date and, if applicable,
the Option Closing Date, the Prospectus, as amended or supplemented, (A)
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations, and (B) did not contain and will
not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty does not apply to the Underwriter's Information.
(vi) The Company and Azle Bancorp ("Bancorp") are duly
organized, validly existing and in good standing under the laws of the
State of Texas, with full power and authority to own, lease and operate
their properties and conduct their business as described in and
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) and
as currently being conducted and are duly registered as bank holding
companies under the Bank Holding Company Act of 1956, as amended (the "BHC
Act"). The Company has the power and authority to issue and sell the
Designated Shares, to enter into and perform its obligations under this
Agreement and to consummate the transactions herein contemplated; the
Company and Bancorp are duly qualified to transact business and are in good
standing in each jurisdiction in which the conduct of their respective
businesses or the ownership of their respective properties requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
financial condition, stockholders equity or results of operations of the
Company, Bancorp or the Subsidiaries (as hereinafter defined) taken as a
whole ("Material Adverse Effect");
(vii) The Company has the direct and indirect subsidiaries
identified on Exhibit A-1 hereto (the "Company Subsidiaries"), and Bancorp
has the direct and indirect subsidiaries identified on Exhibit A-2 hereto
(the "Bancorp Subsidiaries") (the Company Subsidiaries and the Bancorp
Subsidiaries are sometimes referred to herein collectively as the
"Subsidiaries" and individually as a "Subsidiary"). The Company's
Subsidiary, First State Bank, National Association, and Bancorp's
Subsidiary, Azle State Bank ("ASB"), are hereinafter referred to
collectively as the "Banks." The Company and Bancorp do not own or control,
directly or indirectly, more than 5% of any
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class of equity security of any corporation, association or other entity
other than the Subsidiaries. Each Subsidiary is a bank, corporation or
business trust duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation or organization.
Each such Subsidiary has full corporate and other power and authority to
own, lease and operate its properties and to conduct its business as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted. The deposit
accounts of the Banks are insured by the Bank Insurance Fund administered
by the Federal Deposit Insurance Corporation (the "FDIC") up to the maximum
amount provided by law; and, to the knowledge of the Company, no
proceedings for the modification, termination or revocation of any such
insurance are pending or threatened.
(viii) Each of the Subsidiaries 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 or conducts its business
so as to require such qualification except where the failure to so qualify
would not have a Material Adverse Effect. All of the issued and
outstanding shares of capital stock of the Subsidiaries (A) have been duly
authorized and are validly issued, (B) are fully paid and nonassessable
except to the extent such shares may be deemed assessable under 12 U.S.C.
Section 55 or 12 U.S.C. Section 1831o, and (C) except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), are owned by the Company or Bancorp, as the case
may be, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon voting or transfer, preemptive rights, claim
or equity. Except as disclosed in the Prospectus (or if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
outstanding rights, warrants or options to acquire or instruments
convertible into or exchangeable for any capital stock or equity securities
of the Company, Bancorp or the Subsidiaries.
(ix) The capital stock of the Company conforms to the
description thereof contained in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) in all material
respects. The outstanding shares of capital stock and equity securities of
the Company have been duly authorized and validly issued and are fully paid
and nonassessable, and no such shares were issued in violation of the
preemptive or similar rights of any security holder of the Company; no
person has any preemptive or similar right to purchase any shares of
capital stock or equity securities of the Company. Except as disclosed in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there are no outstanding rights, options or
warrants to acquire any securities of the Company, and there are no
restrictions upon the voting or transfer of any capital stock of the
Company pursuant to the Company's articles of incorporation or bylaws or
any agreement or other instrument to which the Company is a party or by
which the Company is bound.
(x) The Company has all requisite power and authority to
issue, sell and deliver the Designated Shares in accordance with and upon
the terms and conditions set
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forth in this Agreement, the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus). All corporate action required to be taken by the Company for
the authorization, issuance, sale and delivery of the Designated Shares in
accordance with such terms and conditions has been validly and sufficiently
taken. The Designated Shares, when delivered in accordance with this
Agreement, will be duly and validly issued and outstanding and will be
fully paid and nonassessable, will not be issued in violation of or subject
to any preemptive or similar rights, and will conform in all material
respects to the description thereof in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). None of the Designated Shares, immediately prior
to delivery, will be subject to any security interest, lien, mortgage,
pledge, encumbrance, restriction upon voting or transfer, preemptive
rights, claim, equity or other defect.
(xi) The Company, Bancorp and the Subsidiaries have complied in
all material respects with all federal, state and local statutes,
regulations, ordinances and rules applicable to the ownership and operation
of their properties or the conduct of their businesses as described in and
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) and
as currently being conducted.
(xii) The Company, Bancorp and the Subsidiaries have all
material permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate federal,
state, local or other public authorities ("Permits") as are necessary to
own and lease their properties and conduct their businesses in the manner
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted in all material
respects. All such Permits are in full force and effect and each of the
Company, Bancorp and the Subsidiaries are in all material respects
complying therewith, and no event has occurred that allows, or after notice
or lapse of time would allow, revocation or termination thereof or will
result in any other material impairment of the rights of the holder of any
such Permit, subject in each case to such qualification as may be
adequately disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). Such Permits contain no
restrictions that would materially impair the ability of the Company,
Bancorp or the Subsidiaries to conduct their businesses in the manner
consistent with their past practices. Neither the Company, Bancorp nor any
of the Subsidiaries has received notice or otherwise has knowledge of any
proceeding or action relating to the revocation or modification of any such
Permit.
(xiii) Neither the Company, Bancorp nor any of the Subsidiaries
is in breach or violation of its corporate articles of incorporation or
charter, by-laws or other governing documents in any material respect.
Neither the Company, Bancorp nor any of the Subsidiaries is, and to the
knowledge of the Company no other party is, in violation, breach or default
(with or without notice or lapse of time or both) in the performance or
observance of any term, covenant, agreement, obligation, representation,
warranty or condition
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contained in (A) any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, which breach, violation or default would
reasonably be expected to have a Material Adverse Effect, and to the
knowledge of the Company, no other party has threatened that the Company,
Bancorp or any of the Subsidiaries is in such violation, breach or default,
or (B) except as disclosed in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), any order, decree,
judgment, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Company, Bancorp or the Subsidiaries or any of their
respective properties the breach, violation or default of which would
reasonably be expected to have a Material Adverse Effect.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement, the Registration Statement and the Prospectus (or, if
the Prospectus in not in existence, the most recent Preliminary
Prospectus) do not and will not conflict with, result in the creation
or imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the Company or the Company
Subsidiaries or the Designated Shares pursuant to, constitute a breach
or violation of, or constitute a default under, with or without notice
or lapse of time or both, any of the terms, provisions or conditions
of the articles of incorporation or by-laws of the Company or the
Company Subsidiaries, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, Permit or any other
agreement or instrument to which the Company or the Company
Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or any order, decree, judgment,
rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Company or the Company Subsidiaries or any of
their respective properties which conflict, creation, imposition,
breach, violation or default would, either singly or in the aggregate,
have a Material Adverse Effect. No authorization, approval, consent or
order of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or
authority) is required in connection with the transactions
contemplated by this Agreement, the Registration Statement and the
Prospectus, except for the registration of the Designated Shares,
under the 1933 Act and the qualification for listing of the Designated
Shares by the American Stock Exchange, Inc. relating to the listing of
the Designated Shares, and such as may be required under state
securities laws or Interpretations or Rules of the National
Association of Securities Dealers, Inc. ("NASD") in connection with
the purchase and distribution of the Designated Shares by the
Underwriter.
(xv) The Company has all requisite corporate power and
authority to enter into this Agreement, and this Agreement has been
duly and validly
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authorized, executed and delivered by the Company and constitutes the
legal, valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and by
bankruptcy or other laws relating to or affecting creditors' rights
generally and except as any indemnification or contribution provisions
thereof may be limited under applicable securities laws.
(xvi) The Company, Bancorp and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to all
personal property owned by them and material to their business, in each
case free and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except such
as are referred to in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or such as do not
materially affect the value of such property in the aggregate and do not
materially interfere with the use made or proposed to be made of such
property; and all of the leases under which the Company, Bancorp or the
Subsidiaries hold real or personal property are valid, existing and
enforceable leases and in full force and effect with such exceptions as are
not material and do not materially interfere with the use made or proposed
to be made of such real or personal property by the Company, and neither
the Company, Bancorp nor any of the Subsidiaries is in default in any
material respect of any of the terms or provisions of any material leases.
(xvii) PricewaterhouseCoopers LLP, who have certified certain of
the consolidated financial statements of the Company and the Company
Subsidiaries, including the notes thereto, included by incorporation by
reference or otherwise in the Registration Statement and Prospectus, are
independent public accountants with respect to the Company, Bancorp and the
Subsidiaries as required by the 1933 Act and the 1933 Act Regulations.
Ernst & Young LLP, who have certified certain of the financial statements
of ASB, including the notes thereto, included in the Registration Statement
and Prospectus, are independent public accountants with respect to the
Company, Bancorp and the Subsidiaries as required by the 1933 Act and the
1933 Act Regulations. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, who have certified
certain of the consolidated financial statements of Bancorp and the Bancorp
Subsidiaries, including the notes thereto, included in the Registration
Statement and Prospectus, are independent public accounts with respect to
the Company, Bancorp and the Subsidiaries as required by the 1933 Act and
the 1933 Act Regulations.
(xviii) (A) The consolidated financial statements, including the
notes thereto, included by incorporation by reference or otherwise in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) with respect to the
Company, Bancorp and the Subsidiaries, comply in all material respects with
the 1933 Act and the 1933 Act Regulations and present fairly the
consolidated financial position of the entities covered thereby as of the
dates indicated and the consolidated results of operations, cash flows and
changes in shareholders' equity of the entities covered thereby for the
periods specified and have been prepared in conformity with generally
accepted
9
accounting principles. The selected and summary consolidated financial data
concerning the Company, Bancorp and the Subsidiaries included in the
Registration Statement and the Prospectus (or such Preliminary Prospectus)
comply in all material respects with the 1933 Act and the 1933 Act
Regulations, present fairly the information set forth therein, and have
been compiled on a basis consistent with that of the consolidated financial
statements of the Company, Bancorp and the Subsidiaries in the Registration
Statement and the Prospectus (or such Preliminary Prospectus). The other
financial, statistical and numerical information included in the
Registration Statement and the Prospectus (or such Preliminary Prospectus)
complies in all material respects with the 1933 Act and the 1933 Act
Regulations, presents fairly the information shown therein, and to the
extent applicable has been compiled on a basis consistent with the
financial statements of the Company, Bancorp and the Subsidiaries included
in the Registration Statement and the Prospectus (or such Preliminary
Prospectus).
(B) The pro forma financial information of the
Company and the Company Subsidiaries included in the Registration Statement
presents fairly in all material respects the information shown therein, has
been compiled on a basis consistent with that of the audited consolidated
financial statements of the Company, Bancorp and the Subsidiaries included
in the Registration Statement, has been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and the assumptions used in the preparation thereof are
reasonable.
(xix) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), except as
otherwise stated therein:
(A) neither the Company, Bancorp nor any of the Subsidiaries
has sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree except for such loss or interference or labor dispute
or court or governmental action, order or decree as would not have a
Material Adverse Effect;
(B) there has not been any material adverse change in the
Company, Subsidiaries, and Bancorp taken as a whole, or any
development which is reasonably likely to have a Material Adverse
Effect;
(C) neither the Company, Bancorp nor any of the Subsidiaries
has incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions, other than in the ordinary
course of business which is material to the Company, Subsidiaries, and
Bancorp taken as a whole;
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(D) neither the Company nor Bancorp has declared or paid
any dividend, and neither the Company, Bancorp nor any of the
Subsidiaries has become delinquent in the payment of principal or
interest on any outstanding borrowings; and
(E) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital leases
or, other than in the ordinary course of business, short-term
borrowings of the Company, Bancorp or the Subsidiaries.
(xx) Except as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Company, threatened,
against or affecting the Company, Bancorp or the Subsidiaries or any of
their respective properties before or by any court or any regulatory,
administrative or governmental official, commission, board, agency or other
authority or body, or any arbitrator, wherein an unfavorable decision,
ruling or finding would reasonably be expected to have a material adverse
effect on the consummation of this Agreement or the transactions
contemplated herein or the Company, Subsidiaries, and Bancorp taken as a
whole or which is required to be disclosed in the Registration Statement or
the Prospectus (or such Preliminary Prospectus) and is not so disclosed.
(xxi) There are no contracts or other documents required to be
filed as exhibits to the Registration Statement by the 1933 Act or the 1933
Act Regulations which have not been filed as exhibits or incorporated by
reference into the Registration Statement, or that are required to be
summarized in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) that are not so summarized.
(xxii) Neither the Company nor Bancorp has taken, directly or
indirectly, any action designed to result in or which has constituted or
which would reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Designated Shares, and the Company has no knowledge
that any such action has been taken or will be taken by any affiliate of
the Company or Bancorp.
(xxiii) The Company, Bancorp and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service marks,
trade names and other rights necessary to conduct the businesses now
conducted by them in all material respects or as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and neither the Company, Bancorp nor the
Subsidiaries have received any notice of infringement or conflict with
asserted rights of others with respect to any patents, copyrights,
trademarks, service marks, trade names or other rights which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, and the Company does not
know of any basis for such infringement or conflict.
11
(xxiv) Except as adequately disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus), no labor dispute involving the Company, Bancorp or the
Subsidiaries exists or, to the knowledge of the Offerors, is imminent which
would reasonably be expected to have a Material Adverse Effect or which is
required to be disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). Neither the Offerors,
Bancorp nor any of the Subsidiaries have knowledge of any existing or
threatened labor dispute by the employees of any of its principal suppliers
or contractors which would reasonably be expected to have a Material
Adverse Effect.
(xxv) The Offerors, Bancorp and the Subsidiaries have timely
and properly prepared and filed all necessary federal, state, local and
foreign tax returns which are required to be filed and have paid all taxes
shown as due thereon and have paid all other taxes and assessments to the
extent that the same shall have become due, except such as are being
contested in good faith or where the failure to so timely and properly
prepare and file would not have a Material Adverse Effect. The Company has
no knowledge of any tax deficiency which has been or might be assessed
against the Company, Bancorp or the Subsidiaries which, if the subject of
an unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
(xxvi) Each of the material contracts, agreements and
instruments described or referred to in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and each contract, agreement and instrument filed
as an exhibit to the Registration Statement is in full force and effect and
is the legal, valid and binding agreement of the Offerors, Bancorp or the
Subsidiaries, enforceable in accordance with its terms, except (A) to the
extent set forth in the Prospectus (or such Preliminary Prospectus, (B) as
the enforcement thereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting creditors' rights
generally, (C) to the extent such unenforceability would not have a
Material Adverse Effect or (D) with respect to any indemnification or
contribution provision thereof, as may be limited by applicable securities
laws. Except as disclosed in the Prospectus (or such Preliminary
Prospectus), to the knowledge of the Offerors, no other party to any such
agreement is (with or without notice or lapse of time or both) in breach or
default in any material respect thereunder.
(xxvii) No relationship, direct or indirect, exists between or
among the Company, Bancorp or the Subsidiaries, on the one hand, and the
directors, officers, shareholders, customers or suppliers of the Company,
Bancorp or the Subsidiaries, on the other hand, which is required to be
described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
which is not adequately described therein.
12
(xxviii) No person has the right to request or require the
Company or the Company Subsidiaries to register any securities for offering
and sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Designated
Shares except as adequately disclosed in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xxix) The Designated Shares have been approved for listing on
the American Stock Exchange, Inc., subject to official notice of issuance.
(xxx) Except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no contractual encumbrances or restrictions or
material legal restrictions required to be described therein, on the
ability of the Subsidiaries (A) to pay dividends or make any other
distributions on its capital stock or to pay any indebtedness owed to the
Company or Bancorp, (B) to make any loans or advances to, or investments
in, the Company or Bancorp or (C) to transfer any of its property or assets
to the Company or Bancorp.
(xxxi) Neither the Company nor Bancorp is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(xxxii) The Company has not distributed and will not distribute
prior to the Closing Date any prospectus in connection with the offering
contemplated hereby, other than a Preliminary Prospectus, the Prospectus,
the Registration Statement and the other materials permitted by the 1933
Act and the 1933 Act Regulations and supplied to the Underwriter.
(xxxiii) The Company, Bancorp and each of the Subsidiaries
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with
management's general or specific authorizations, (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization, and (D) the
recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
(xxxiv) The Company, Bancorp and the Subsidiaries maintain
insurance covering in all material respects their properties, personnel and
business. Such insurance insures against such losses and risks as, in the
judgment of the executive officers of the Company, are adequate to protect
in all material respects the Company, Bancorp and the Subsidiaries and
their businesses. Neither the Company, Bancorp nor any of the Subsidiaries
has received notice from any insurer or agent of such insurer that
substantial
13
capital improvements or other expenditures will have to be made in order to
continue such insurance. All such insurance is outstanding and duly in
force on the date hereof and will be outstanding and duly in force on the
Closing Date, with such exceptions as would not have a Material Adverse
Effect.
(xxxv) All of the representations and warranties of the
Company contained in the Reorganization Agreement and any Ancillary
Agreement are true and correct in all material respects, and the
Company has no reason to believe that (A) any of the representations
and warranties of Bancorp contained in the Reorganization Agreement
and any Ancillary Agreement are not true and correct in all material
respects, or (B) that any condition to consummation of the
transactions contemplated by the Reorganization Agreement and the
Ancillary Agreements will not be satisfied or that such transactions
will not close as contemplated in the Reorganization Agreement and the
Ancillary Agreements.
3. OFFERING BY THE UNDERWRITER. After the Registration Statement becomes
effective or, if the Registration Statement is already effective, after this
Agreement becomes effective, the Underwriter shall, subject to the terms and
conditions hereof, offer the Firm Shares for sale to the public upon the terms
and conditions set forth in the Prospectus. The Underwriter may from time to
time thereafter reduce the public offering price and change the other selling
terms, provided the proceeds to the Company shall not be reduced as a result of
such reduction or change.
The Underwriter may reserve and sell such of the Designated Shares
purchased by the Underwriter as the Underwriter may elect to dealers chosen by
it (the "Selected Dealers") at the public offering price set forth in the
Prospectus less the applicable Selected Dealers' concessions set forth therein,
for re-offering by Selected Dealers to the public at the public offering price.
The Underwriter may allow, and Selected Dealers may re-allow, a concession set
forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with the
Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration
Statement and any amendments thereto, if not effective at the time of execution
of this Agreement, to become effective as promptly as possible. If the
Registration Statement has become or becomes effective pursuant to Rule 430A and
information has been omitted therefrom in reliance on Rule 430A, then the
Company will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted.
(b) The Company shall notify the Underwriter immediately, and confirm
such notice in writing:
14
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus
has been filed;
(ii) of the receipt of any comments or requests from the
Commission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the
Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Shares for offering or sale in any
jurisdiction or the institution or threat of institution of any proceedings
for any of such purposes. The Company shall use its best efforts to
prevent the issuance of any such stop order or of any other such order and,
if any such order is issued, to cause such order to be withdrawn or lifted
as soon as possible.
(c) The Company shall furnish to the Underwriter, from time to time
without charge, as soon as available, as many copies as the Underwriter may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto including exhibits, whether filed before or after the
Registration Statement becomes effective, (ii) all exhibits and documents
incorporated therein or filed therewith, (iii) all consents and certificates of
experts in executed form, (iv) each Preliminary Prospectus and all amendments
and supplements thereto, and (v) the Prospectus, and all amendments and
supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Company shall 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 Designated
Shares as contemplated herein and in the Prospectus. The Company shall not file
any amendment to the registration statement as originally filed or to the
Registration Statement and shall not file any amendment thereto or make any
amendment or supplement to any Preliminary Prospectus or to the Prospectus of
which the Underwriter shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings thereof or to
which the Underwiter or counsel for the Underwriter shall object. If it is
necessary, in the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel, to amend or supplement the Registration Statement or the
Prospectus in connection with the distribution of the Designated Shares, the
Company shall forthwith amend or supplement the Registration Statement or the
Prospectus, as the case may be, by preparing and filing with the Commission
(provided the Underwriter or counsel for the Underwriter does not reasonably
object), and furnishing to the Underwriter, such number of copies as the
Underwriter may reasonably request of an amendment or
15
amendments of, or a supplement or supplements to, the Registration Statement or
the Prospectus, as the case may be (in form and substance reasonably
satisfactory to the Underwriter and counsel for the Underwriter). If any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus to correct an untrue statement of a material fact or to include a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any reason
it is necessary at any time to amend or supplement the Prospectus to comply with
the 1933 Act and the 1933 Act Regulations, the Company shall, subject to the
second sentence of this subsection (d), forthwith amend or supplement the
Prospectus by preparing and filing with the Commission, and furnishing to the
Underwriter, such number of copies as the Underwriter may reasonably request of
an amendment or amendments of, or a supplement or supplements to, the Prospectus
(in form and substance reasonably satisfactory to the Underwriter and counsel
for the Underwriter) so that, as so amended or supplemented, the Prospectus
shall not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) The Company shall cooperate with the Underwriter and counsel for
the Underwriter in order to qualify the Designated Shares for offering and sale
under the securities or blue sky laws of such jurisdictions within the United
States of America as the Underwriter may reasonably request and shall continue
such qualifications in effect so long as may be advisable for distribution of
the Designated Shares; provided, however, that the Company shall not be required
to qualify to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the foregoing. The
Company shall file such statements and reports as may be required by the laws of
each jurisdiction in which the Designated Shares have been qualified as above.
The Company will notify the Underwriter immediately of, and confirm in writing,
the suspension of qualification of the Designated Shares or threat thereof in
any jurisdiction.
(f) The Company shall make generally available to its security holders
in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish
to the Underwriter as soon as practicable, but in any event not later than 16
months after the Effective Date, a consolidated earnings statement of the
Company conforming with the requirements of Section 11(a) of the 1933 Act and
Rule 158.
(g) The Company shall use the proceeds from the sale of the Designated
Shares to be sold hereunder in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(h) For five years from the Effective Date, the Company shall furnish
to the Underwriter copies of all reports and communications (financial or
otherwise) furnished by the Company to the holders of the Designated Shares as a
class, copies of all reports and financial statements filed with or furnished to
the Commission (other than portions for which confidential treatment has been
obtained from the Commission) or with any other national securities exchange or
self-regulatory organization, and such other documents, reports and information
concerning the business and financial condition of the Company as the
Underwriter may reasonably request, other
16
than such documents, reports and information for which the Company has the legal
obligation not to reveal to the Underwriter.
(i) For a period of 90 days from the Effective Date, the Company shall
not, without the Underwriter's prior written consent, directly or indirectly
offer, sell, contract to sell or otherwise dispose of any shares of the
Company's equity securities, any securities convertible or exchangeable for such
equity securities or any other rights to acquire such equity securities, other
than (A) Designated Shares issued and sold to the Underwriter pursuant to this
Agreement, (B) Common Stock issued upon exercises of employee stock options
outstanding on the date hereof, and (C) Common Stock issued upon conversion of
the Company's outstanding Series C Preferred Stock, as described in the
Prospectus. The Company will cause each of its executive officers and
directors, and beneficial owners of more than five percent of the Common Stock
(other that the Independent Bankshares, Inc. Employee Stock Ownership Plan) to
deliver to the Underwriter on or before the date of this Agreement, an agreement
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter whereby each such person agrees, for a period of 90 days from the
Effective Date, not to, directly or indirectly, offer, sell, contract to sell or
otherwise dispose of any shares of the Company's equity securities, any
securities convertible or exchangeable for the Company's equity securities or
any other rights to acquire such equity securities without the prior written
consent of the Underwriter.
(j) The Company shall use its best efforts to cause the Designated
Shares to become listed on the American Stock Exchange, Inc. or in lieu thereof
a national securities exchange or self-regulatory organization, and to remain so
listed for at least five years from the Effective Date or for such shorter
period as may be specified in a written consent of the Underwriter.
(k) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriter's
Option to purchase the Option Shares shall expire, or (ii) the day following the
Option Closing Date with respect to any Option Shares that the Underwriter shall
elect to purchase, except as described in or contemplated by the Prospectus,
neither the Company, Bancorp nor any of the Subsidiaries shall take any action
(or refrain from taking any action) which will result in the Company, Bancorp or
the Subsidiaries incurring any material liability or obligation, direct or
contingent, or enter into any material transaction, except in the ordinary
course of business, and there will not be any material change in the financial
position, capital stock, or any material increase in long-term debt, obligations
under capital leases or short-term borrowings (except for repurchase agreements
in the ordinary course of business consistent with past practice) of the Company
and the Company Subsidiaries, or Bancorp and the Bancorp Subsidiaries, as the
case may be, on a consolidated basis.
(l) Neither the Company nor Bancorp shall take, directly or
indirectly, any action designed to result in or which has constituted or which
would reasonably be expected to (i) cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Designated Shares, or (ii) otherwise violate the Commission's
Regulation M.
17
(m) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the Company,
Bancorp, the Subsidiaries or the offering of the Designated Shares without the
Underwriter's prior written consent.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is terminated or
the sale of the Designated Shares to the Underwriter is consummated, the Company
covenants and agrees that it will pay or cause to be paid (directly or by
reimbursement) all costs and expenses incident to the performance of the
obligations of the Company under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements), and the certificates for the Designated Shares;
(b) all fees, expenses and disbursements of counsel and accountants
for the Company and Bancorp;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Shares under the securities or blue sky laws of
such jurisdictions as the Underwriter may request, including all filing fees and
fees and disbursements of counsel to the Underwriter in connection therewith,
including, without limitation, in connection with the preparation of the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto (all such fees and expenses in this subparagraph (c) the
"Blue Sky Fees"); provided, however, such Blue Sky Fees shall not exceed $3,000
in the aggregate;
(d) all fees and expenses incurred in connection with filings made
with the NASD;
(e) any applicable fees and other expenses incurred in connection with
the listing of the Designated Shares on the American Stock Exchange, Inc.
(f) the cost of furnishing to the Underwriter copies of the initial
registration statements, any Preliminary Prospectus, the Registration Statement
and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel to any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated Shares
to the Underwriter; and
18
(i) all other costs and expenses incident to the performance of the
obligations of the Company hereunder that are not otherwise specifically
provided for in this Section 5; provided, however, that the Underwriter shall
pay its own costs and expenses, including (A) the costs and expenses of its
counsel, (B) the Blue Sky Fees which are not paid by the Company pursuant to
Section 5(c) above, (C) the expenses of advertising any offering of the
Designated Shares made by the Underwriter and (D) stabilization costs, if any.
If the sale of Designated Shares contemplated by this Agreement is not
completed due to the termination of this Agreement pursuant to the terms hereof,
the Company will pay the Underwriter its accountable out-of-pocket expenses in
connection herewith or in contemplation of the performance of the Underwriter's
obligations hereunder, including without limitation travel expenses, reasonable
fees, expenses and disbursements of counsel or other out-of-pocket expenses
incurred by the Underwriter in connection with any discussion of the offering of
the Designated Shares or the contents of the Registration Statement, any
investigation of the Company and the Subsidiaries, or any preparation for the
marketing, purchase, sale or delivery of the Designated Shares, in each case
following presentation of reasonably detailed invoices therefor, provided,
however, that if the sale of the Designated Shares is not completed, the Company
will in no event be obligated to pay in excess of $50,000 of such fees and
expenses without prior approval by the Company.
If the sale of Designated Shares contemplated by this Agreement is
completed, the Company shall not be responsible for payment of fees or
disbursements of counsel to the Underwriter other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriter.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase and pay for the Firm Shares and, following exercise of
the Option granted by the Company in Section 1 of this Agreement, the Option
Shares, are subject, in the Underwriter's reasonable discretion, to the accuracy
of and compliance with the representations and warranties and agreements of the
Company herein as of the date hereof and as of the Closing Date (or in the case
of the Option Shares, if any, as of the Option Closing Date), to the accuracy of
the written statements of the Company made pursuant to the provisions hereof, to
the performance by the Company of their covenants and obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed prior
to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as the Underwriter
may agree to in writing. If required, the Prospectus and any amendment or
supplement thereto shall have been timely filed in accordance with Rule 424(b)
and Rule 430A under the 1933 Act and Section 4(a) hereof. No stop order
suspending the effectiveness of the Registration Statement or any amendment or
supplement thereto shall have been issued under the 1933 Act or any applicable
state securities laws and no proceedings for that purpose shall have been
instituted or shall be
19
pending, or, to the knowledge of the Company or the Underwriter, shall be
contemplated by the Commission or any state authority. Any request on the part
of the Commission or any state authority for additional information (to be
included in the Registration Statement or Prospectus or otherwise) shall have
been disclosed to the Underwriter and complied with to the satisfaction of the
Underwriter and to the satisfaction of counsel for the Underwriter.
(b) The Underwriter shall not have advised the Company in writing at
or before the Closing Date (and, if applicable, the Option Closing Date) that
the Registration Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of a fact which, in the Underwriter's opinion, is material or omits to state a
fact which, in the Underwriter's opinion, is material and is required to be
stated therein or is necessary to make statements therein (in the case of the
Prospectus or any amendment or supplement thereto, in light of the circumstances
under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement and the Designated Shares,
and the authorization and form of the Registration Statement and Prospectus,
other than financial statements and other financial data, and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be satisfactory in all material respects to counsel to the Underwriter,
and the Company and the Company Subsidiaries shall have furnished to such
counsel all documents and information relating thereto that they may reasonably
request to enable them to pass upon such matters.
(d) ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Company, shall have furnished
to the Underwriter its signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to counsel
to the Underwriter as to the matters set forth in as Exhibit B hereto.
(e) ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇., counsel to the Underwriter, shall
have furnished to the Underwriter its signed opinion, dated the Closing Date or
the Option Closing Date, as the case may be, with respect to the sufficiency of
all corporate procedures and other legal matters relating to this Agreement, the
validity of the Designated Shares, the Registration Statement, the Prospectus
and such other related matters as the Underwriter may reasonably request and
there shall have been furnished to such counsel such documents and other
information as they may request to enable them to pass on such matters. In
giving such opinion, ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇. may rely as to matters of fact
upon statements and certifications of officers of the Company and of other
appropriate persons and may rely as to matters of law, other than law of the
United States and the State of Missouri, upon the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
described herein.
(f) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Underwriter shall have received from
PricewaterhouseCoopers LLP and Ernst & Young LLP and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
L.L.P. letters, dated the date of this Agreement and the Closing Date (and, if
applicable, the Option Closing Date), respectively, in form and substance
satisfactory to the Underwriter, confirming that, with respect
20
PricewaterhouseCoopers LLP, they are independent public accountants with respect
to the Company and the Company Subsidiaries (for purposes of this Section 6(f)
only, the "Company") within the meaning of the 1933 Act and the 1933 Act
Regulations, and, with respect to Ernst & Young, LLP and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, L.L.P., they are independent public accountants with respect to Bancorp
and the Bancorp Subsidiaries (for purposes of this Section 6(f) only, "Bancorp")
within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in
effect that:
(i) In their opinion, the consolidated financial statements of
the Company or Bancorp, as the case may be, audited by them and included in
the Registration Statement 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 the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company or
Bancorp, as the case may be, responsible for financial and accounting
matters, and such other inquiries and procedures as may be specified in
such letter, which procedures do not constitute an audit in accordance with
U.S. generally accepted auditing standards, nothing came to their attention
that caused them to believe that, if applicable, the unaudited interim
consolidated financial statements of the Company or Bancorp, as the case
may be, included in the Registration Statement do not comply as to form in
all material respects with the applicable accounting requirements of the
1933 Act and 1933 Act Regulations or are not in conformity with U.S.
generally accepted accounting principles applied on a basis substantially
consistent, except as noted in the Registration Statement, with the basis
for the audited consolidated financial statements of the Company or
Bancorp, as the case may be included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company or
Bancorp, as the case may be, inspection of the minute books of the Company
or Bancorp, as the case may be, since the date of the latest audited
financial statements of the Company or Bancorp, as the case may be,
included or incorporated by reference in the Registration Statement,
inquiries of officials of the Company or Bancorp, as the case may be,
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) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock of the Company or Bancorp, as the case may
be, any increase in the consolidated debt of the Company or Bancorp,
as the case may be, any decreases in consolidated total assets or
shareholders equity of the Company or Bancorp, as the case may be, or
any changes, decreases or increases in other items specified by the
Underwriter, in each case as compared with amounts shown in the latest
unaudited interim consolidated
21
statement of financial condition of the Company or Bancorp, as the
case may be, included in the Registration Statement except in each
case for changes, increases or decreases which the Registration
Statement specifically discloses, have occurred or may occur or which
are described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements of the Company or Bancorp,
as the case may be, included in the Registration Statement to the
specified date referred to in Clause (iii)(A), there were any
decreases in the consolidated interest income, net interest income, or
net income of the Company or Bancorp, as the case may be, or in the
per share amount of net income of the Company or Bancorp, as the case
may be, or any changes, decreases or increases in any other items
specified by the Underwriter, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Underwriter, except in each case
for increases or decreases which the Registration Statement discloses
have occurred or may occur, or which are described in such letter;
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with U.S. generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Underwriter which are derived
from the general accounting records and consolidated financial statements
of the Company or Bancorp, as the case may be, which appear in the
Registration Statement and have compared such amounts, percentages and
financial information with the accounting records and the material derived
from such records and consolidated financial statements of the Company or
Bancorp, as the case may be, and have found them to be in agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in Clauses (iii)(A)
or (iii)(B), above, or any exceptions from such agreement specified in Clause
(iv) above, it shall be a further condition to the obligations of the
Underwriter that the Underwriter shall have determined, after discussions with
officers of the Company, responsible for financial and accounting matters, that
such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts shown in the latest unaudited
consolidated statement of financial condition of the Company or Bancorp, as the
case may be, included in the Registration Statement, (y) reflect a material
adverse change in the items specified in Clause (iii)(B) above as compared with
the corresponding periods of the prior year or other period specified by the
Underwriter, or (z) reflect a material change in items specified in Clause (iv)
above from the amounts shown in the Preliminary Prospectus distributed by the
Underwriter in connection with the offering contemplated hereby or from the
amounts shown in the Prospectus.
22
(g) At the Closing Date and, if applicable, the Option Closing Date, the
Underwriter shall have received certificates of the chief executive officer and
the chief financial and accounting officer of the Company, which certificates
shall be deemed to be made on behalf of the Company dated as of the Closing Date
and, if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2(a) hereof are accurate as of
the Closing Date and, if applicable, the Option Closing Date, and that the
Company has complied with all agreements and satisfied all conditions on their
part to be performed or satisfied at or prior to such Closing Date and, if
applicable, the Option Closing Date, (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material adverse change in the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company,
Bancorp and the Subsidiaries on a consolidated basis, (iii) since such dates
there has not been any material transaction entered into by the Company or the
Company Subsidiaries other than transactions in the ordinary course of business,
(iv) they have carefully examined the Registration Statement and the Prospectus
as amended or supplemented and nothing has come to their attention that would
lead them to believe that either the Registration Statement or the Prospectus,
or any amendment or supplement thereto as of their respective effective or issue
dates, contained, and the Prospectus as amended or supplemented at such Closing
Date (and, if applicable, the Option Closing Date), contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and (v)
covering such other matters as the Underwriter may reasonably request. The
officers' certificate of the Company shall further state that no stop order
affecting the Registration Statement is in effect or, to their knowledge,
threatened.
(h) The NASD, upon review of the terms of the public offering of the
Designated Shares, shall not have objected to the Underwriter's participation
in such offering.
(i) The Underwriter shall have received on or before the date of this
Agreement agreements of the executive officers, directors and five percent
shareholders of the Company (other than the Independent Bankshares, Inc.
Employee Stock Ownership Plan) that, as described in Section 4(i) hereof.
(j) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Company shall have furnished to the Underwriter and counsel for the
Underwriter all such other documents, certificates and opinions as they have
reasonably requested.
(k) On or prior to the Closing Date, the Company shall have completed
its acquisition of Bancorp and any other transactions contemplated by the
Reorganization Agreement and the Company and the Trust shall have completed the
offering of 1,000,000 ____% Cumulative Trust Preferred Securities as provided in
that certain Underwriting Agreement among the Underwriter, the Company and the
Trust of even date herewith relating to the sale of such securities.
23
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Underwriter. The Company shall furnish the
Underwriter with conformed copies of such opinions, certificates, letters and
other documents as the Underwriter shall reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the Underwriter's obligations hereunder may be terminated by the Underwriter on
notice to the Company at, or at any time before, the Closing Date or the Option
Closing Date, as applicable. Any such termination shall be without liability of
the Underwriter to the Company.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Underwriter,
each of its directors, officers and agents, and each person, if any, who
controls the Underwriter within the meaning of the 1933 Act, against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation and reasonable attorney fees and expenses), joint or several,
arising out of or based (i) upon any untrue statement or alleged untrue
statement of a material fact made by the Company contained in Section 2(a) of
this Agreement (or any certificate delivered by the Company pursuant to Sections
6(g) or 6(j) hereof) or the registration statement as originally filed or the
Registration Statement, any Preliminary Prospectus or the Prospectus, or in any
amendment or supplement thereto, (ii) upon any blue sky application or other
document executed by the Company specifically for that purpose or based upon
written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any of the Designated Shares under the
securities laws thereof (any such application, document or information being
hereinafter referred to as a "Blue Sky Application"), (iii) any omission or
alleged omission to state a material fact in the registration statement as
originally filed or the Registration Statement, the Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were madenot misleading,
and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and attorney fees), joint or
several, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus or the
Prospectus, or in any amendment or supplement thereto, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
(iv) the enforcement of this indemnification provision or the contribution
provisions of Section 7(d); and shall reimburse each such indemnified party for
any reasonable legal or other expenses as incurred, but in no event less
frequently than 30 days after each invoice is submitted, incurred by them in
connection with investigating or defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded;
provided, however, that the Company shall not be liable in any such
24
case to the extent, but only to the extent, that any such losses, claims,
damages, liabilities and expenses arise out of or are based upon any untrue
statement or omission or allegation thereof that has been made therein or
omitted therefrom in reliance upon and in conformity with the Underwriter's
Information; provided, that the indemnification contained in this paragraph with
respect to any Preliminary Prospectus shall not inure to the benefit of the
Underwriter (or of any person controlling the Underwriter) to the extent any
such losses, claims, damages, liabilities or expenses directly results from the
fact that the Underwriter sold Designated Shares to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus (as amended or supplemented if any amendments or supplements
thereto shall have been furnished to the Underwriter consistent with the
provisions hereof, if required by law, and if such loss, claim, damage,
liability or expense would not have arisen but for the failure to give or send
such person such document. The foregoing indemnity agreement is in addition to
any liability the Company may otherwise have to any such indemnified party.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers and each person, if any, who
controls the Company within the meaning of the 1933 Act, to the same extent as
required by the foregoing indemnity from the Company to the Underwriter, but
only with respect to the Underwriter's Information or information related to the
Underwriter furnished in writing to the Company through the Underwriter by or on
its behalf expressly for use in a Blue Sky Application. The foregoing indemnity
agreement is in addition to any liability which the Underwriter may otherwise
have to any such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent materially
prejudiced thereby. Any indemnified party or any such controlling person shall
have the right to employ separate counsel in any such action and to participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
25
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified parties and controlling persons, which firm shall be designated
in writing by the indemnified party and shall be reasonably satisfactory to the
indemnifying party. Each indemnified party and each controlling person, as a
condition of such indemnity, shall use reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. The indemnifying
party shall not be liable for any settlement of any such action effected without
its written consent, but if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriter on the other from the offering of the Designated Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriter on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The benefits
received by the Underwriter on the one hand and the Company on the other shall
be deemed to be allocated pro rata on the basis of the total underwriting
discounts, commissions and compensation received by the Underwriter relative to
the total net proceeds from the offering of the Designated Shares (before
deducting expenses) received by the Company, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company on
the one hand and of the Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information
26
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this paragraph (d)
were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Designated Shares underwritten by the Underwriter and
distributed to the public were offered to the public exceeds the amount of any
damages that the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls the
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as the Underwriter, and each person who controls the Company within
the meaning of the 1933 Act, each officer of the Company and each director of
the Company shall have the same rights to contribution as the Company subject in
each case to the preceding paragraph. The obligations of the Company under this
paragraph (d) shall be in addition to any liability which the Company may
otherwise have and the obligations of the Underwriter under this paragraph (d)
shall be in addition to any liability that the Underwriter may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of the Underwriter or any person
controlling the Underwriter or by or on behalf of the Company, or such
directors, trustees or officers (or any person controlling the Company), (ii)
acceptance of any Designated Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of the Underwriter or of the
Company, such directors, trustees or officers (or of any person controlling the
Underwriter or the Company) shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
8. TERMINATION. The Underwriter shall have the right to terminate this
Agreement at any time at or prior to the Closing Date or, with respect to the
Underwriter's obligation to purchase the Option Shares, at any time at or prior
to the Option Closing Date, without liability on the part of the Underwriter to
the Company, if:
(a) The Company shall have failed, refused, or been unable to perform
any agreement on its part to be performed under this Agreement, or any of the
conditions referred to in Section 6 shall not have been fulfilled, when and as
required by this Agreement;
27
(b) The Company, Bancorp or any of the Subsidiaries shall have
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree which in the
judgment of the Underwriter materially impairs the investment quality of the
Designated Shares;
(c) There has been since the respective dates as of which information
is given in the Registration Statement or the Prospectus, any materially adverse
change in, or any development which is reasonably likely to have a Material
Adverse Effect on the Company, Bancorp and the Subsidiaries taken as a whole;
(d) There has occurred any outbreak of hostilities or other calamity
or crisis or material change in general economic, political or financial
conditions, or internal conditions, the effect of which on the financial markets
of the United States is such as to make it, in the Underwriter's reasonable
judgment, impracticable to market the Designated Shares or enforce contracts for
the sale of the Designated Shares;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq Stock Market's National Market shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority;
(f) A banking moratorium shall have been declared by either federal or
Texas authorities; or
(g) Any action shall have been taken by any government in respect of
its monetary affairs which, in the Underwriter's reasonable judgment, has a
material adverse effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8, the
Company shall not then be under any liability to the Underwriter except as
provided in Sections 5 and 7 hereof.
9. CERTAIN DEFINITIONS. The following terms shall have the following
meanings:
"Business day." Means any day on which the American Stock Exchange, Inc.
is open for trading.
"Knowledge." Whenever a phrase herein is qualified by "the knowledge of
the Company," or a similar phrase, it is intended to refer to the actual
knowledge, after reasonable inquiry, of the directors and executive officers of
the Company.
28
"Threatened." Any matter or thing will be deemed to have been "threatened"
when used herein with respect to any party if that party has received notice, in
writing, from the person whom the threat is attributable, or such person's
agent, which makes specific reference to and clearly identifies the matter or
thing being threatened.
10. EFFECTIVE DATE OF AGREEMENT. If the Registration Statement is not
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Underwriter when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Underwriter shall
release the Designated Shares for initial public offering. The Underwriter
shall notify the Company immediately after it has taken any action which causes
this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Company, by notifying the Underwriter, or by the
Underwriter, by notifying the Company, except that the provisions of Sections 5
and 7 shall at all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. The
representations, warranties, indemnities, agreements and other statements of the
Company and its officers set forth in or made pursuant to this Agreement and the
agreements of the Underwriter contained in Section 7 hereof shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Company or controlling persons of the Company, or by or on
behalf of the Underwriter or controlling persons of the Underwriter or any
termination or cancellation of this Agreement and shall survive delivery of and
payment for the Designated Shares.
12. NOTICES. Except as otherwise provided in this Agreement, all notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if delivered by hand, mailed by registered or certified
mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to the Company shall be sent to ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chief
Financial Officer (with a copy to ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇); and notices to the
Underwriter shall be sent to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
(with a copy to ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇, Esq.).
Any such notices and other communications shall take effect at the
time of receipt thereof (except in the case of any such notice or other
communication given via standard
29
from of telecommunication and confirmed wherein it shall take effect at the time
of confirmation thereof).
13. PARTIES. The Agreement herein set forth is made solely for the
benefit of the Underwriter and the Company and, to the extent expressed,
directors, trustees and officers of the Company, any person controlling the
Company or the Underwriter, and their respective successors and assigns. 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,
in its status as such purchaser, from the Underwriter of the Designated Shares.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Missouri, without giving effect to the choice of law or conflicts of
law principles thereof.
15. FACSIMILE EXECUTION AND COUNTERPARTS. This Agreement may be executed
by facsimile and in one or more counterparts, and when a counterpart has been
executed by each party hereto all such counterparts taken together shall
constitute one and the same Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company and you in accordance with
its terms.
Very truly yours,
INDEPENDENT BANKSHARES, INC.
By:
-------------------------------------
Print Name:
-----------------------------
Its:
------------------------------------
CONFIRMED AND ACCEPTED,
as of _________, 1998.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By:
------------------------------------
Print Name:
----------------------------
Its:
-----------------------------------
30
EXHIBIT A-1 COMPANY SUBSIDIARIES
Independent Financial Corp.
First State Bank, National Association
New Azle, Inc.
Independent Capital Trust I
EXHIBIT A-2 BANCORP SUBSIDIARIES
Azle Holdings, Inc.
Azle State Bank
32.
EXHIBIT B ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP OPINION MATTERS
(i) The Company has been duly incorporated under the laws of
the State of Texas, and each of the Company and Bancorp is validly
existing and in good standing under the laws of the State of Texas,
and is duly registered as a bank holding company under the BHC Act.
Each of the Subsidiaries is duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation.
Each of the Company, Bancorp and the Subsidiaries has full corporate
power and authority to own or lease its properties and to conduct its
business as such business is described in the Prospectus and is
currently conducted in all material respects. To counsel's knowledge,
all outstanding shares of capital stock of the Subsidiaries have been
duly authorized and validly issued and are fully paid and
nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Sections 55 and 1831o and, to such
counsel's knowledge, except as disclosed in the Prospectus, there are
no outstanding rights, options or warrants to purchase any such shares
or securities convertible into or exchangeable for any such shares.
(ii) The capital stock of the Company conforms to the description
thereof contained in the Prospectus in all material respects. To counsel's
knowledge, the capital stock of the Company authorized and issued as of
June 30, 1998 is as set forth under the caption "Capitalization" in the
Prospectus, has been duly authorized and validly issued, and is fully paid
and nonassessable. To counsel's knowledge, there are no outstanding rights,
options or warrants to purchase, no other outstanding securities
convertible into or exchangeable for, and no commitments, plans or
arrangements to issue, any shares of capital stock of the Company, except
as described in the Prospectus.
(iii) The issuance, sale and delivery of the Designated Shares in
accordance with the terms and conditions of this Agreement have been duly
authorized by all necessary actions of the Company. All of the Designated
Shares have been duly and validly authorized and, when delivered in
accordance with this Agreement, will be duly and validly issued, fully paid
and nonassessable, and will conform to the description thereof in the
Registration Statement and the Prospectus in all material respects. Such
counsel has been advised that the Designated Shares have been approved for
listing on the American Stock Exchange, Inc., subject to official notice of
issuance. There are no preemptive or other rights to subscribe for or to
purchase, and, other than as disclosed in the Prospectus, no restrictions
upon the voting or transfer of, any shares of capital stock or equity
securities of the Company or the Company Subsidiaries pursuant to the
corporate articles of incorporation or charter, by-laws or other governing
documents of the Company or the Company Subsidiaries, or, to counsel's
knowledge, any agreement or other instrument to which the Company or any of
the Company Subsidiaries is a party or by which the Company or any of the
Company Subsidiaries may be bound.
33.
(iv) The Company has all requisite corporate power to enter into
and perform its obligations under this Agreement, and this Agreement has
been duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as the enforcement hereof
or thereof may be limited by general principles of equity and by bankruptcy
or other laws relating to or affecting creditors' rights generally, and
except as the indemnification and contribution provisions hereof may be
limited under applicable laws and certain remedies may not be available in
the case of a non-material breach.
(v) To counsel's knowledge, neither the Company, Bancorp nor any
of the Subsidiaries is in breach or violation of, or default under, with or
without notice or lapse of time or both, its corporate charter, by-laws or
governing document. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not and will not conflict with, result in the creation or
imposition of any material lien, claim, charge, encumbrance or restriction
upon any property or assets of the Company or the Company Subsidiaries or
the Designated Shares pursuant to, or constitute a material breach or
violation of, or constitute a material default under, with or without
notice or lapse of time or both, any of the terms, provisions or conditions
of the articles of incorporation or charter, by-laws or governing document
of the Company or the Company Subsidiaries, or to counsel's knowledge, any
material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license or any other agreement or
instrument to which the Company or the Company Subsidiaries is a party or
by which any of them or any of their respective properties may be bound or
any order, decree, judgment, franchise, license, Permit, rule or regulation
of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Company or the Company Subsidiaries or any of their
respective properties which, in each case, is material to the Company and
the Company Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of, or filing, registration or qualification
with, any person (including, without limitation, any court, governmental
body or authority) is required under Texas law in connection with the
transactions contemplated by this Agreement in connection with the purchase
and distribution of the Designated Shares by the Underwriter.
(vi) To counsel's knowledge, holders of securities of the
Company either (A) do not have any right that, if exercised, would
require the Company to cause such securities to be included in the
Registration Statement or (B) have waived such right. To counsel's
knowledge, neither the Company nor any of the Company Subsidiaries is
a party to any agreement or other instrument which grants rights for
or relating to the registration of any securities of the Company.
34.
(vii) Except as set forth in the Registration Statement and the
Prospectus, to such counsel's knowledge, (i) no action, suit or proceeding
at law or in equity is pending or threatened in writing to which the
Company, Bancorp or the Subsidiaries is or may be a party, and (ii) no
action, suit or proceeding is pending or threatened in writing against or
affecting the Company, Bancorp or the Subsidiaries or any of their
properties, before or by any court or governmental official, commission,
board or other administrative agency, authority or body, or any arbitrator,
wherein an unfavorable decision, ruling or finding would reasonably be
expected to have a material adverse effect on the consummation of this
Agreement or the issuance and sale of the Designated Shares as contemplated
herein or a Material Adverse Effect or which is required to be disclosed in
the Registration Statement or the Prospectus and is not so disclosed.
(viii) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, except such as have been
obtained under the 1933 Act, the American Stock Exchange, Inc. relating to
the listing of the Designated Shares and except such as may be required
under state securities laws or Interpretations or Rules of the NASD in
connection with the purchase and distribution of the Designated Shares by
the Underwriter.
(ix) The Registration Statement and the Prospectus and any
amendments or supplements thereto and any documents incorporated therein by
reference (other than the financial statements or other financial data
included therein or omitted therefrom and Underwriter's Information, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations as of their respective dates of effectiveness.
(x) To counsel's knowledge, there are no contracts,
agreements, leases or other documents of a character required to be
disclosed in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so disclosed or filed.
(xi) The statements under the captions "Pending Acquisition,"
"Regulation and Supervision," "Description of Capital Stock" and "Certain
Relationships and Related Transactions" in the Prospectus or incorporated
therein by reference, insofar as such statements constitute a summary of
legal and regulatory matters, documents or instruments referred to therein,
are accurate descriptions of the matters summarized therein in all material
respects and fairly present the information called for with respect to such
legal matters, documents and instruments, other than financial and
statistical data, as to which said counsel shall not be required to express
any opinion or belief.
(xii) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under the
1933 Act; any required
35.
filing of the Prospectus pursuant to Rule 424(b) has been made within the
time period required by Rule 424(b); to the counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for a stop order are pending or threatened by the
Commission.
(xiii) Except as described in or contemplated by the Prospectus,
to the best of such counsel's knowledge, there are no contractual
encumbrances or restrictions, or material legal restrictions, required to
be described therein on the ability of the Company Subsidiaries (A) to pay
dividends or make any other distributions on its capital stock or to pay
indebtedness owed to the Company, (B) to make any loans or advances to, or
investments in, the Company, or (C) to transfer any of its property or
assets to the Company.
(xiv) To counsel's knowledge, (A) the business and operations
of the Company, Bancorp and the Subsidiaries comply in all material
respects with all statutes, ordinances, laws, rules and regulations
applicable thereto and which are material to the Company and the Company
Subsidiaries, or Bancorp and the Bancorp Subsidiaries, as the case may be,
on a consolidated basis, except in those instances where non-compliance
would not materially impair the ability of the Company and the Company
Subsidiaries, or Bancorp and the Bancorp Subsidiaries, as the case may be,
to conduct their business, and (B) the Company, Bancorp and the
Subsidiaries possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all Permits that
are required to conduct their businesses as described in the Prospectus and
that are material to the Company and the Company Subsidiaries, or Bancorp
and the Bancorp Subsidiaries, as the case may be, on a consolidated basis,
except in those instances where the loss thereof or non-compliance
therewith would not have a Material Adverse Effect; to counsel's knowledge,
all such Permits are valid and in full force and effect, and, to counsel's
knowledge, no action, suit or proceeding is pending or threatened which may
lead to the revocation, termination, suspension or non-renewal of any such
Permit, except in those instances where the loss thereof or non-compliance
therewith would not materially impair the ability of the Company or the
Company Subsidiaries, or Bancorp and the Bancorp Subsidiaries, as the case
may be, to conduct their businesses.
(xv) Each of the Reorganization Agreement and the Ancillary
Agreements, and the transactions contemplated thereby, has been
authorized by all necessary corporate action on the part of the
Company and/or the Company Subsidiaries, has been executed and
delivered by the Company and/or the Company Subsidiaries and the other
parties thereto and constitutes a valid and binding obligation of the
Company and/or the Company Subsidiaries (assuming the due
authorization, execution and delivery thereof by the other parties
thereto) enforceable against the Company and/or the Company
Subsidiaries in accordance with its terms, except as the enforcement
hereof or thereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting creditors' rights
generally.
36.
In giving the above opinion, such counsel may state (1) that, insofar
as such opinion involves factual matters, it has relied upon certificates of
officers of the Company and Bancorp including, without limitation, certificates
as to the identity of any and all material contracts, indentures, mortgages,
deeds of trust, loans or credit agreements, notes, leases, franchises, licenses
or other agreements or instruments, and all material permits, easements,
consents, licenses, franchises and government regulatory authorizations, for
purposes of paragraphs (v), (x) and (xiv) hereof, (2) that its opinion is
limited to matters governed by the federal laws of the United States of America
and the laws of the state of Texas and (3) that it has, to the extent it deems
proper, relied upon written statements or certificates of officers of
departments of various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and the Subsidiaries.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with certain officers and representatives of the
Company and with their independent public accountants and with the Underwriter
and counsel for the Underwriters, at which conferences such counsel made
inquiries of such officers, representatives and accountants and discussed the
contents of the Registration Statement and Prospectus and the documents
incorporated therein by reference (without taking further action to verify
independently the statements made in the Registration Statement and the
Prospectus, and without assuming responsibility for the accuracy or completeness
of such statements, except to the extent expressly provided above) and such
counsel has no reason to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements, notes thereto and the
related schedules and other financial, accounting and statistical data included
therein or omitted therefrom or the Underwriter's Information, as to which such
counsel need express no opinion), at the time the Registration Statement or any
such amendment became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (B) that the Prospectus or any
amendment or supplement thereto or the documents incorporated therein by
reference (except for the financial statements, the notes thereto and the
related schedules and other financial, accounting and statistical data included
therein or omitted therefrom or the Underwriter's Information, as to which such
counsel need express no opinion), at the time the Registration Statement became
effective (or, if the term "Prospectus" refers to the prospectus first filed
pursuant to Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus
was issued), at the time any such amended or supplemented Prospectus was issued,
at the Closing Date and, if applicable, the Option Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made, or (C) that there is any amendment to the Registration Statement
required to be filed that has not already been filed.
37.
