2,000,000 Preferred Securities
First Preferred Capital Trust II
% Cumulative Trust Preferred Securities
----
(Liquidation Amount of $25.00 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
October , 2000
----
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a division of
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & CO. INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Underwriters
named in Schedule I hereto
Dear Sirs:
First Banks, Inc., a Missouri corporation (the "Company"), and
its financing subsidiary, First Preferred Capital Trust II, a Delaware
business trust (the "Trust," and hereinafter together with the Company,
the "Offerors"), propose that the Trust issue and sell to the several
underwriters listed on Schedule I hereto (the "Underwriters"), pursuant
to the terms of this Agreement, 2,000,000 of the Trust's %
------
Cumulative Trust Preferred Securities, with a liquidation amount of
$25.00 per preferred security (the "Preferred Securities"), to be issued
under the Trust Agreement (as hereinafter defined), the terms of which
are more fully described in the Prospectus (as hereinafter defined).
The aforementioned 2,000,000 Preferred Securities to be sold to the
Underwriters are herein called the "Firm Preferred Securities". Solely
for the purpose of covering over-allotments in the sale of the Firm
Preferred Securities, the Offerors further propose that the Trust issue
and sell to the Underwriters, at their option, up to an additional
300,000 Preferred Securities (the "Option Preferred Securities") upon
exercise of the over-allotment option granted in Section 1 hereof. The
Firm Preferred Securities and any Option Preferred Securities are herein
collectively referred to as the "Designated Preferred Securities".
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a
division of ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇▇▇▇ & Co. Inc., are
acting jointly as representatives of the Underwriters and in such
capacity are sometimes herein referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each
of the Underwriters in connection with the proposed purchase of the
Designated Preferred Securities.
1. Sale, Purchase and Delivery of Designated Preferred Securities;
---------------------------------------------------------------
Description of Designated Preferred Securities.
----------------------------------------------
(a) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions
herein set forth, the Offerors hereby agree that the Trust shall issue
and sell to each of the Underwriters and each of the Underwriters
agrees, severally and not jointly, to purchase from the Trust, at a
purchase price of $25.00 per share (the "Purchase Price"), the
respective number of Firm Preferred Securities set forth opposite the
name of such Underwriter in Schedule I hereto. Because the proceeds
from the sale of the Firm Preferred Securities will be used to purchase
from the Company its Debentures (as hereinafter defined and as described
in the Prospectus), the Company shall pay to each Underwriter a
commission of $ per Firm Preferred Security purchased (the "Firm
------
Preferred Securities Commission"). The Representatives may by notice to
the Company amend Schedule I to add, eliminate or substitute names set
forth therein (other than to eliminate the name of the Representatives)
and to amend the number of firm Preferred Securities to be purchased by
any firm or corporation listed thereon, provided that the total number
of Firm Preferred Securities listed on Schedule I shall equal 2,000,000.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions
herein set forth, the Trust hereby grants to the Underwriters, severally
and not jointly, an option to purchase all or any portion of the 300,000
Option Preferred Securities, and upon the exercise of such option in
accordance with this Section 1, the Offerors hereby agree that the Trust
shall issue and sell to the Underwriters, severally and not jointly, all
or any portion of the Option Preferred Securities at the same Purchase
Price per share paid for the Firm Preferred Securities. If any Option
Preferred Securities are to be purchased, each Underwriter, severally
and not jointly, agrees to purchase from the Trust that proportion
(subject to adjustment as the Representatives may determine to avoid
fractional shares) of the number of Option Preferred Securities to be
purchased that the number of Firm Preferred Securities set forth
opposite the name of such Underwriter in Schedule I hereto (or such
number increased as set forth in Section 9 hereof) bears to 2,000,000.
Because the proceeds from the sale of the Option Preferred Securities
will be used to purchase from the Company its Debentures, the Company
shall pay to the Underwriters a commission of $ per Option
------
Preferred Security for each Option Preferred Security purchased (the
"Option Preferred Securities Commission"). The option hereby granted
(the "Option") shall expire 30 days after the date upon which the
Registration Statement (as hereinafter defined) becomes effective 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
Preferred Securities. The Option may be exercised in whole or in part
at any time (but not more than once) by you giving notice (confirmed in
writing) to the Company and the Trust setting forth the number of Option
Preferred Securities as to which the Underwriters are exercising the
Option and the time, date and place for payment and delivery of
certificates for such Option Preferred Securities. Such time and date
of payment and delivery for the Option Preferred Securities (the "Option
Closing Date") shall be determined by you, but shall not be earlier than
two nor later than five full business days after the
2
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 the Firm Preferred Securities
Commission and delivery of certificates for the Firm Preferred
Securities shall be made at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, or such other place as shall be agreed to by you and the
Offerors, at 10:00 a.m., St. Louis time, on October , 2000, or at
-----
such other time not more than five full business days thereafter as the
Offerors and you shall determine (the "Closing Date"). If the
Underwriters exercise the option to purchase any or all of the Option
Preferred Securities, payment of the Purchase Price and Option Preferred
Securities Commission and delivery of certificates for such Option
Preferred Securities shall be made on the Option Closing Date at the
Underwriters' offices, or at such other place as the Offerors and you
shall determine. Such payments shall be made to an account designated by
the Trust by wire transfer or certified or bank cashier's check, in
same-day funds, in the amount of the Purchase Price therefor, against
delivery by or on behalf of the Trust to you for the respective accounts
of the several Underwriters of certificates for the Designated Preferred
Securities to be purchased by the Underwriters. Delivery of the
Designated Preferred Securities may be made by credit through full fast
transfer to the accounts at The Depository Trust Company ("DTC")
designated by the Representatives. The Designated Preferred Securities
shall be represented in the form of one or more fully registered global
notes in book-entry form registered in the name of the nominee of DTC.
Time shall be of the essence, and delivery of the certificates
for the Designated Preferred Securities at the time and place specified
pursuant to this Agreement is a further condition of the obligations of
each Underwriter hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement
among State Street Bank and Trust Company, as Property Trustee,
Wilmington Trust Company, as Delaware Trustee, the Administrative
Trustees named therein, (collectively, the "Trustees"), and the Company,
in substantially the form heretofore delivered to the Underwriters, said
Agreement being hereinafter referred to as the "Trust Agreement". In
connection with the issuance of the Designated Preferred Securities, the
Company proposes (i) to issue its % Subordinated Debentures due
-------
2030 (the "Debentures") pursuant to an Indenture, to be dated as
of , 2000, between the Company and State Street Bank
---------------- ----
and Trust Company, as indenture trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Preferred Securities
pursuant to a Guarantee Agreement between the Company and State Street
Bank and Trust Company, as guarantee trustee (the "Guarantee"), to the
extent described therein.
2. Representations and Warranties.
------------------------------
(a) The Offerors jointly and severally represent and
warrant to, and agree with, each of the Underwriters that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities
Exchange Act of 1934, as
3
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 Offerors have prepared and filed with the
Commission a registration statement on Form S-2 (File Numbers 333-
46270 and 333-46270-01) for the registration of the Designated
Preferred Securities, the Guarantee and $57,500,000 aggregate
principal amount of Debentures 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, the rules and regulations promulgated thereunder (the
"1933 Act Regulations") and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations
thereunder. Copies of such registration statement, including any
amendments thereto and any documents incorporated by reference
therein, 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 Offerors to the Representatives.
After the execution of this Agreement, the Offerors 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 Representatives
prior to (or as are agreed to by the Representatives 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 Representatives prior to (or is agreed to by
the Representatives subsequent to) the execution of this
Agreement. As used in this Agreement, the term "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 1933 Act); and the term
"Prospectus" means the
4
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. As of the date that each Preliminary Prospectus
was filed with the Commission or as of the date that the
Prospectus and any amendment or supplement thereto was filed with
the Commission (or, if not filed, on the date provided by the
Offerors to the Underwriters in connection with the offering and
sale of the Preferred Securities), as the case may be, no event
has or will have occurred which should have been set forth in an
amendment or supplement to any of the documents incorporated by
reference in the Preliminary Prospectus or Prospectus which has
not then been set forth in such an amendment or supplement.
(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 Offerors,
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 Offerors by any of the
Underwriters expressly for inclusion in the Prospectus beneath the
heading "Underwriting" and the last sentence on the cover page of
the Prospectus (such information referred to herein as the
"Underwriters' Information"). As of the date that each
Preliminary Prospectus was filed with the Commission or as of the
date that the Prospectus and any amendment or supplement thereto
was filed with the Commission (or, if not filed, on the date
provided by the Offerors to the Underwriters in connection with
the offering and sale of the Preferred Securities), as the case
may be, no event has or will have occurred which should have been
set forth in an amendment or supplement to the Preliminary Prospectus
or Prospectus which has not then been set forth in such an
5
amendment or supplement. Each Preliminary Prospectus and the
Prospectus will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval ("▇▇▇▇▇")
system, except to the extent permitted by Regulation S-T.
(v) The Registration Statement has been declared effective
under the 1933 Act, and no post-effective amendment to the
Registration Statement has been filed with the Commission as of
the date of this Agreement. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the
Company's knowledge, threatened by the Commission. 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, the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder) 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, 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 Preferred Securities, 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 the
Trust Indenture Act (and the rules and regulations thereunder) 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 Underwriters' Information. As of the
date that the Registration Statement was filed with the
Commission, no event has or will have occurred which should have
been set forth in an amendment or supplement to the Registration
Statement which has not then been set forth in such an amendment
or supplement. The Registration Statement will be identical to
the electronically transmitted copy thereof filed with the
Commission pursuant to its ▇▇▇▇▇ system, except to the extent
permitted by Regulation S-T.
(vi) (A) The Company is duly organized, validly existing
and in good standing under the laws of the State of Missouri, with
full corporate and other power and authority to own, lease and
operate its properties and 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 and is
duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the
Delaware Business Trust Act with the power and authority (trust
and other) to own its property and conduct its business as
described in the Registration Statement and Prospectus, to issue
and sell its common
6
securities (the "Common Securities") to the Company pursuant to
the Trust Agreement, to issue and sell the Designated Preferred
Securities, to enter into and perform its obligations under this
Agreement and to consummate the transactions herein contemplated;
the Trust has no subsidiaries and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or the ownership of its property 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 Trust; the Trust has conducted and will conduct no
business other than the transactions contemplated by this
Agreement, the Trust Agreement and described in the Prospectus;
the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement and the
agreements and instruments contemplated by the Trust Agreement and
described in the Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and
described in the Prospectus; the Trust is not a party to or
subject to any action, suit or proceeding of any nature; the Trust
is, and at the Closing Date or any Option Closing Date will be,
classified as a grantor trust for United States federal income tax
purposes; the Trust is not, and at the Closing Date or any Option
Closing Date will not be, to the knowledge of the Offerors,
classified as an association taxable as a corporation for United
States federal income tax purposes; and the Trust is, and as of
the Closing Date or any Option Closing Date will be, treated as a
consolidated subsidiary of the Company pursuant to generally
accepted accounting principles.
(vii) The Company has eighteen (18) direct or indirect
subsidiaries that have material ongoing operations. They are
listed on Exhibit A attached hereto and incorporated herein (the
---------
"Subsidiaries"). Except as set forth as Exhibit B, the Company
---------
does not own or control, directly or indirectly, more than 5% of
any class of equity security of any corporation, association or
other entity that conducts material ongoing operations other than
the Subsidiaries. First Bank, First Bank & Trust, First Bank Texas
N.A., First Bank of California and Redwood Bank are collectively
referred to as the "Banks". Each Subsidiary is a bank holding
company, state bank, trust company, national banking association
or corporation duly organized or incorporated (as applicable),
validly existing and in good standing with all applicable
Regulators (as defined below) and under the laws of its respective
jurisdiction of organization or incorporation. Each such
Subsidiary has full corporate, trust or 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 (the
"Bank") are insured by the Bank Insurance Fund or Savings
Association Insurance Fund, both administered by the Federal
Deposit Insurance Corporation (the "FDIC") up to the maximum
amount provided by law; and no proceedings for the modification,
termination or revocation of any such insurance are pending or, to
the knowledge of the Offerors, threatened.
(viii) The Company and each of the Subsidiaries is duly
qualified to transact business as a foreign corporation and is in
good standing in each other
7
jurisdiction in which it owns or leases property or conducts its
business so as to require such qualification and in which the
failure to so qualify would, individually or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis. 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 or under applicable state banking law, and
(C) except as disclosed in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), are
directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, restriction upon
voting or transfer, preemptive rights, claim or equity.
(ix) The capital stock of the Company and the equity
securities of the Trust conform to the description thereof
contained in the Registration Statement and Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). The outstanding shares of capital stock and equity
securities of each Offeror 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 an Offeror; no person has any preemptive or
similar right to purchase any shares of capital stock or equity
securities of the Offerors. Except as disclosed in the
Registration Statement and 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 Offerors or the Subsidiaries, and there are no
outstanding securities convertible into or exchangeable for any
securities of the Offerors or the Subsidiaries and no restrictions
upon the voting or transfer of any capital stock of the Company or
equity securities of the Trust pursuant to the Company's corporate
charter or bylaws, the Trust Agreement or any agreement or other
instrument to which an Offeror is a party or by which an Offeror
is bound. The Company has an authorized and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(x) (A) The Trust has all requisite power and authority
to issue, sell and deliver the Designated Preferred Securities in
accordance with and upon the terms and conditions set forth in
this Agreement, the Trust Agreement, the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus). All corporate and trust
action required to be taken by the Offerors for the authorization,
issuance, sale and delivery of the Designated Preferred Securities
in accordance with such terms and conditions has been validly and
sufficiently taken. The Designated Preferred Securities, when
delivered in accordance with this Agreement, will be duly and
validly issued and outstanding, will be fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust, will be entitled to the benefits of the Trust Agreement,
will not be issued in violation of or subject to any preemptive or
similar rights, and will conform to the description thereof in the
Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) and
the Trust Agreement. None of the Designated
8
Preferred Securities, 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.
(B) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and
issued as provided in the Indenture and delivered to the Trust
pursuant to the Trust Agreement, will constitute valid and legally
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity, will be in
the form contemplated by, and entitled to the benefits of, the
Indenture, will conform to the description thereof contained in
the Prospectus and will be owned by the Trust free and clear of
any security interest, mortgage, pledge, lien, encumbrance,
restriction upon transfer, preemptive rights, claim or equity.
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to
the guarantee trustee for the benefit of the Trust, will
constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general
principles of equity, and will conform to the description thereof
contained in the Prospectus.
(D) The Agreement as to Expenses and Liabilities
between the Company and the Trust (the "Expense Agreement") has
been duly and validly authorized, and, when duly and validly
executed and delivered by the Company, will constitute a valid and
legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity, and will
conform to the description thereof contained in the Prospectus.
(xi) The Offerors and the Subsidiaries have complied with
all foreign, 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,
except where the failure to be in compliance would not have a
material adverse effect upon the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operation of the Offerors and the Subsidiaries on a consolidated
basis.
(xii) The Offerors and the Subsidiaries have all 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
9
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), except where
the failure to have such Permits would not have a material adverse
effect upon the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operation of the
Offerors and the Subsidiaries on a consolidated basis. All
material Permits are in full force and effect and each of the
Offerors 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 material 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). No material
Permit contains any restriction that would materially impair the
ability of the Company or the Subsidiaries to conduct their
businesses in the manner consistent with their past practices.
Neither the Offerors 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 material Permit.
(xiii) Neither of the Offerors nor any of the
Subsidiaries is in breach or violation of its corporate charter,
by-laws or other governing documents (including without
limitation, the Trust Agreement) in any material respect. Neither
of the Offerors nor any of the Subsidiaries is, and to the
knowledge of the Offerors 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 contained in
(A) any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease, franchise, license, material 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 could have material adverse consequences to
the Offerors and the Subsidiaries on a consolidated basis, and to
the knowledge of the Offerors, no other party has asserted that
the Offerors or any of the Subsidiaries is in such violation,
breach or default (provided that the foregoing shall not apply to
defaults by borrowers from the Banks), 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 Offerors or the Subsidiaries or any
of their respective properties the breach, violation or default of
which could have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects,
or results of operations of the Offerors and the Subsidiaries on a
consolidated basis.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement, the Trust Agreement, the Registration Statement
and the Prospectus (or, if the Prospectus is 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 Offerors or the Subsidiaries or the Designated
Preferred Securities pursuant to, constitute a breach or violation
of, or
10
constitute a default under, with or without notice or lapse of
time or both, any of the terms, provisions or conditions of the
charter or by-laws of the Company or the Subsidiaries, the Trust
Agreement, the Guarantee, the Indenture, any indenture, mortgage,
deed of trust, loan or credit agreement or note, or any material
contract, lease, franchise, license, Permit or any other agreement
or instrument to which the Offerors or the 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
Offerors or the Subsidiaries or any of their respective properties
which conflict, creation, imposition, breach, violation or default
would have either singly or in the aggregate a material adverse
effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the
Offerors and the 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
in connection with the transactions contemplated by this
Agreement, the Trust Agreement, the Indenture, the Guarantee, the
Registration Statement and the Prospectus, except such as have
been obtained under the 1933 Act, the Trust Indenture Act and from
the Nasdaq National Market relating to the inclusion of the
Designated Preferred Securities, 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 Preferred
Securities by the Underwriters.
(xv) The Offerors have all requisite power and authority
to enter into this Agreement, and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors and
constitutes the legal, valid and binding agreement of the
Offerors, enforceable against the Offerors 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. Each of the Indenture, the
Trust Agreement, the Guarantee and the Expense Agreement has been
duly authorized by the Company, and, when executed and delivered
by the Company on the Closing Date, each of said agreements will
constitute a valid and legally binding obligation of the Company
and will be enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity and except as any indemnification or
contribution provisions thereof may be limited under applicable
securities laws. Each of the Indenture, the Trust Agreement and
the Guarantee has been duly qualified under the Trust Indenture
Act and will conform to the description thereof contained in the
Prospectus.
(xvi) The Company 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
11
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 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, and neither the Company nor any
of the Subsidiaries is in default in any material respect of any
of the terms or provisions of any leases.
(xvii) KPMG LLP, who have certified the consolidated
financial statements of the Company and its subsidiaries,
including the notes thereto, included or incorporated by reference
in the Registration Statement and Prospectus, are independent
public accountants with respect to the Company and its
subsidiaries, as required by the 1933 Act and the 1933 Act
Regulations.
(xviii) The consolidated financial statements including
the notes thereto, included or incorporated by reference 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 and its subsidiaries comply in all material
respects with the 1933 Act and the 1933 Act Regulations and
present fairly the consolidated financial position of the Company
and its subsidiaries as of the dates indicated and the
consolidated statements of income, cash flows and changes in
stockholders' equity and comprehensive income of the Company and
its subsidiaries for the periods specified and have been prepared
in conformity with generally accepted accounting principles
applied on a consistent basis, except that the interim financial
statements are subject to normal year-end adjustments and do not
include all footnotes required by generally accepted accounting
principles for audited financial statements. The selected
consolidated financial data concerning the Offerors and the
Company's 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,
have been derived from the financial statements or operating
records of the Company, present fairly the information set forth
therein, and have been compiled on a basis consistent with that of
the consolidated financial statements of the Offerors and the
Company's 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, has been derived from the financial statements or
operating records of the Company, presents fairly the information
shown therein, and to the extent applicable has been compiled on a
basis consistent with the consolidated financial statements of the
Company and its subsidiaries included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus).
(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:
12
(A) neither of the Offerors 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 which is material to the
condition (financial or otherwise), earnings, business, prospects
or results of operations of the Offerors and the Subsidiaries on a
consolidated basis;
(B) there has not been any material adverse change
in, or any development which is reasonably likely to have a
material adverse effect on, the condition (financial or
otherwise), earnings, business, prospects or results of operations
of the Offerors and the Subsidiaries on a consolidated basis,
whether or not arising in the ordinary course of business;
(C) neither of the Offerors 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 are material to the
condition (financial or otherwise), earnings, business, prospects
or results of operations of the Offerors and the Subsidiaries on a
consolidated basis;
(D) neither of the Offerors has declared or paid any
dividend and neither of the Offerors nor any of the Subsidiaries
has become delinquent in the payment of principal or interest on
any outstanding borrowings;
(E) there has not been any change in the capital
stock, trust preferred securities, long-term debt, obligations
under capital leases or, other than in the ordinary course of
business, short-term borrowings of the Offerors or the
Subsidiaries; and
(F) there has not occurred any other event and there
has arisen no set of circumstances required by the 1933 Act or the
1933 Act Regulations to be disclosed in the Registration Statement
or Prospectus which has not been so set forth in the Registration
Statement or such Prospectus as fairly and accurately summarized
therein.
(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
Offerors, threatened, against or affecting the Offerors 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 have a material adverse effect on the consummation of this
Agreement or the transactions contemplated herein or the condition
(financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Offerors and the Subsidiaries on a
consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus (or such Preliminary
Prospectus) and is not so disclosed.
13
(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 or the Trust Indenture Act (or any
rules or regulations thereunder) which have not been filed as
exhibits to 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 of the Offerors has taken, directly or
indirectly, any action causing or resulting in or which has
constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of any security of the
Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and
regulations, including, but not limited to, Regulation M, nor is
either Offeror aware of any such action having been taken or to be
taken by any affiliate of the Offerors.
(xxiii) The Offerors 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 Offerors 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 on the condition
(financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Offerors and the Subsidiaries on a
consolidated basis, and the Offerors do not know of any basis for
any such infringement or conflict.
(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 or
the Subsidiaries exists or, to the knowledge of the Offerors, is
imminent which might be expected to have a material adverse effect
on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and
the Subsidiaries on a consolidated basis 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
Company nor any of the Subsidiaries has received notice of any
existing or threatened labor dispute by the employees of any of
its principal suppliers, customers or contractors which might be
expected to have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis.
(xxv) The Offerors and the Subsidiaries have timely and
properly prepared and filed, or have timely and properly filed
extensions for, 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
14
the failure to so timely and properly prepare and file would not
have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis. The Offerors have no knowledge of any tax deficiency which
has been or might be assessed against the Offerors or the
Subsidiaries which, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis.
(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 or the Subsidiaries, enforceable in
accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject to
general principles of equity. 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 Offerors or the Subsidiaries, on the one
hand, and the directors, officers, trustees, shareholders,
customers or suppliers of the Offerors 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.
(xxviii) No person has the right to request or require
the Offerors or the 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 Preferred Securities 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 Preferred Securities have been
approved for inclusion in the Nasdaq National Market 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 any of the
Subsidiaries (A) to pay dividends or make any other distributions
on its capital stock or to pay any indebtedness owed to the
Offerors, (B) to make any loans or advances to, or investments in,
the Offerors or (C) to transfer any of its property or assets to
the Offerors.
15
(xxxi) Except for Star Lane Trust, neither of the
Offerors nor any Subsidiary is an "investment company", a company
"controlled" by an "investment company" or an "investment adviser"
within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act") or the Investment Advisers
Act of 1940, as amended (the "Advisers Act"). Star Lane Trust has
timely and properly prepared and filed all necessary documents and
information which are required to be filed with the Commission
under the Investment Company Act and has operated in compliance
with the Investment Company Act. No order preventing or
suspending Star Lane Trust from acting as an "investment company"
has been issued by the Commission, nor has the Commission, to the
knowledge of the Offerors, threatened to issue such an order or
instituted proceedings for that purpose.
(xxxii) The Offerors have not distributed and will not
distribute prior to the Closing Date any prospectus in connection
with the Offering, 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
reviewed by the Representatives.
(xxxiii) The activities of the Offerors and the
Subsidiaries are permitted under applicable federal and state
banking laws and regulations. The Company has all necessary
approvals, including the approval of the Office of the Comptroller
of Currency (the "OCC"), the State of Missouri Division of Finance
(the "SMDF"), the California Department of Financial Institutions
(the "CDFI") and the Board of Governors of the Federal Reserve
System ("FRB"), as applicable, to own the capital stock of the
Subsidiaries. Neither the Company nor any of the Subsidiaries is
a party or subject to any agreement or memorandum with, or
directive or other order issued by, the FRB, the OCC, the SMDF,
the CDFI, the FDIC or other regulatory authority having
jurisdiction over it (each, a "Regulator," and collectively, the
"Regulators"), which imposes any restrictions or requirements not
generally applicable to entities of the same type as the Company
and the Subsidiaries. Neither the Company nor any Subsidiary is
subject to any directive from any Regulator to make any material
change in the method of conducting their respective businesses,
and no such directive is pending or threatened by such Regulators.
(xxxiv) The Bank has properly administered all accounts
for which it acts as a fiduciary, including but not limited to
accounts for which it serves as a trustee, agent, custodian,
personal representative, guardian, conservator or investment
advisor, in accordance with the terms of the governing documents
and applicable state and federal law and regulation and common
law, except where the failure to be in compliance would not have a
material adverse effect upon the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operation of the Offerors and the Subsidiaries taken as a whole.
Neither the Bank nor any of its directors, officers or employees,
has committed any material breach of trust with respect to any
such fiduciary account, and the accountings for each such
fiduciary account are true and correct in all material respects
and accurately reflect the assets of such fiduciary account in all
material respects.
16
(xxxv) The conditions for use of Form S-2, as set forth
in the General Instructions thereto, have been satisfied.
(xxxvi) The Offerors and the Subsidiaries are in
compliance with all provisions of Section 517.075, Florida
Statutes, relating to doing business with the Government of Cuba
or with any person or affiliate located in Cuba.
(xxxvii) Neither the Company nor any Subsidiary has any
liability under any "pension plan," as defined in the Employee
Retirement Income Security Act of 1974, as amended.
(xxxviii) Each of the Company and 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 U.S. generally accepted
accounting principles and to maintain asset accountability, (C)
access to assets is permitted only in accordance with management's
general or specific authorization and (D) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. The books, records and accounts and systems
of internal accounting controls of the Company and each of the
Subsidiaries comply in all material respects with the requirements
of Section 13(b)(2) of the 1934 Act.
(xxxix) Other than as contemplated by this Agreement and
as disclosed in the Registration Statement, the Company has not
incurred any liability for any finder's or broker's fee or agent's
commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated
hereby.
(xl) No report or application filed by the Company or
any of its Subsidiaries with the FRB, the FDIC, the SMDF, the CDFI,
the OCC or any other state or federal regulatory authority, as of
the date it was filed or amended, contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading when made or failed to comply in all material respects
with the applicable requirements of the FRB, the FDIC, the SMDF,
the CDFI, the OCC or any other state or federal regulatory
authority, as the case may be.
(xli) Based upon current guidelines of the FRB, the
Debentures will constitute "Tier 1" capital (as defined in 12
C.F.R. Part 225), subject to applicable regulatory restrictions on
the amount thereof that can be included in Tier 1 capital.
(xlii) To the best knowledge of the Offerors, no
hazardous substances, hazardous wastes, pollutants or contaminants
have been deposited or disposed of in, on or under the properties
of the Company or any of the Subsidiaries (including properties
owned, managed or controlled by a Subsidiary in connection with
its lending activities) during the period in which the Company or
the Subsidiary has
17
owned, occupied, managed, controlled or operated such properties,
in violation of any environmental, safety, health or similar laws
or regulations, orders, decrees or permits relating to the
protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Regulations"), or any order,
judgment, decree or permit which would require remedial action
under any Environmental Regulation, except for any violations or
remedial actions which would not have, in the aggregate, a
material adverse effect upon the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis. The Company and each of the Subsidiaries (i) is in
material compliance with all applicable Environmental Regulations
and (ii) has received all permits, licenses, consents or other
approvals required under applicable Environmental Regulations to
conduct its business, in each case except where the failure to do
so would not have a material adverse effect upon the condition
(financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Offerors and the Subsidiaries on a
consolidated basis.
(xliii) None of the Offerors, the Subsidiaries or, to
the best knowledge of the Offerors, any other person associated
with or acting on behalf of the Offerors or any of the
Subsidiaries, including, without limitation, any director,
officer, agent, or employee of any of the Subsidiaries or the
Company has, directly or indirectly, while acting on behalf of
such Offeror or Subsidiary (i) used any corporate funds for
unlawful contributions, gifts, entertainment, or other unlawful
expenses relating to political activity; (ii) made any unlawful
contribution to any candidate for foreign or domestic office, or
to any foreign or domestic government officials or employees or
other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the
United States or any jurisdiction thereof or to foreign or
domestic political parties or campaigns from corporate funds, or
failed to disclose fully any contribution in violation of law;
(iii) violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended; or (iv) made any other payment of funds of
either or both of the Offerors or a Subsidiary or retained any
funds which constitute a violation of any law, rule or regulation
or which was or is required to be disclosed in the Registration
Statement or the Prospectus pursuant to the requirements of the
1933 Act or the 1933 Act Regulations.
(xliv) The employee benefit plans, including employee
welfare benefit plans, of the Company and each of the Subsidiaries
(the "Employee Plans") have been operated in material compliance
with the applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), the Internal Revenue
Code of 1986, as amended (the "Code"), all regulations, rulings
and announcements promulgated or issued thereunder and all other
applicable governmental laws and regulations (except to the extent
such noncompliance would not, in the aggregate, have a material
adverse effect upon the condition (financial or otherwise)
earnings, affairs, business, prospects or results of operations of
the Offerors or the Subsidiaries on a consolidated basis). No
reportable event under Section 4043(c) of ERISA has occurred with
respect to any Employee Plan of the Company or any of the
Subsidiaries for which the reporting requirements have not been
waived by the Pension Benefit Guaranty
18
Corporation. No prohibited transaction under Section 406 of
ERISA, for which an exemption does not apply, has occurred with
respect to any Employee Plan of the Company or any of the
Subsidiaries. There are no pending or, to the knowledge of the
Offerors, threatened, claims by or on behalf of any Employee Plan,
by any employee or beneficiary covered under any such Employee
Plan or by any governmental authority or otherwise involving such
Employee Plans or any of their respective fiduciaries (other than
for routine claims for benefits). All Employee Plans that are
group health plans have been operated in material compliance with
the group health plan continuation coverage requirements of
Section 4980B of the Code.
3. Offering by the Underwriters. After the Registration
----------------------------
Statement becomes effective or, if the Registration Statement is already
effective, after this Agreement becomes effective, the Underwriters
propose to offer the Firm Preferred Securities for sale to the public
upon the terms and conditions set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering
price and change the other selling terms, provided the proceeds to the
Trust shall not be reduced as a result of such reduction or change.
Because the NASD may view the Preferred Securities as interests in a
direct participation program, the offering of the Preferred Securities
is being made in compliance with the applicable provisions of Rule 2810
of the NASD's Conduct Rules.
The Underwriters may reserve and sell such of the Designated
Preferred Securities purchased by the Underwriters as the Underwriters
may elect to dealers chosen by you (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
Underwriters 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 Offerors. The Offerors jointly
---------------------------------
and severally covenant with the Underwriters as follows:
(a) The Offerors shall use their 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 Offerors will prepare and
file in accordance with Rule 430A and Rule 424(b), the Prospectus or, if
required by Rule 430A, a post-effective amendment to the Registration
Statement (including the Prospectus) containing all information so
omitted and will provide evidence satisfactory to the Representatives of
such timely filing.
(b) The Offerors shall notify you immediately, and, if
requested by you, shall promptly confirm such notice in writing:
(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;
19
(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 Preferred Securities for offering or sale in any
jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offerors shall use
their 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 Offerors shall furnish to the Underwriters, from
time to time without charge, as soon as available, as many copies as the
Underwriters may reasonably request of (i) the registration statement as
originally filed and of all amendments thereto, in executed form,
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 Offerors shall comply to the best of
their 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 Preferred Securities as contemplated
herein and in the Trust Agreement and the Prospectus. The Offerors
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 you shall not previously have
been advised in writing and provided a copy a reasonable time prior to
the proposed filings thereof or to which you or counsel for the
Underwriters 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 Preferred Securities,
the Offerors 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 Underwriters or counsel for the
Underwriters do not reasonably object), and furnishing to you, such
number of copies as you may reasonably request of an amendment or
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 you and counsel for the Underwriters). 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
20
1933 Act and the 1933 Act Regulations, the Offerors 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 you, such number of copies as you may reasonably
request of an amendment or amendments of, or a supplement or supplements
to, the Prospectus (in form and substance satisfactory to you and
counsel for the Underwriters) 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 Offerors shall use their best efforts to permit
the Preferred Securities to be eligible for clearance and settlement
through the facilities of DTC.
(f) The Offerors shall make generally available to their
security holders in the manner contemplated by Rule 158 of the 1933 Act
Regulations and furnish to you as soon as practicable, but in any event
not later than 16 months after the Effective Date, a consolidated
earnings statement of the Offerors in reasonable detail, covering a
period of at least 12 consecutive months beginning after the effective
date of the Registration Statement, conforming with the requirements of
Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of
the Designated Preferred Securities to be sold by the Trust hereunder in
the manner specified in the Prospectus under the caption "Use of
Proceeds."
(h) For five years from the Effective Date, the Offerors
shall furnish to the Representatives copies of all reports and
communications (financial or otherwise) furnished by the Offerors to the
holders of the Designated Preferred Securities 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 the Nasdaq National Market,
any national securities exchange, or other self-regulatory organization,
and such other documents, reports and information concerning the
business and financial conditions of the Offerors as the Representatives
may reasonably request, other than such documents, reports and
information for which the Offerors have the legal obligation not to
reveal to the Representatives.
(i) Until the earlier of the Option Closing Date or the
expiration of the Underwriters' Option, the Offerors shall not, directly
or indirectly, offer for sale, sell or agree to sell or otherwise
dispose of any Designated Preferred Securities other than pursuant to
this Agreement, any other beneficial interests in the assets of the
Trust or any securities of the Trust or the Company that are
substantially similar to the Designated Preferred Securities or the
Debentures, including any guarantee of such beneficial interests or
substantially similar securities, or securities convertible into or
exchangeable for or that represent the right to receive any such
beneficial interest or substantially similar securities, without the
prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to become included in the Nasdaq
National Market or in lieu thereof to be listed on the New York Stock
Exchange or another national securities exchange, and to remain so
included or
21
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
Representatives, provided this shall not prevent the Company from
redeeming the Designated Preferred Securities pursuant to the terms of
the Trust Agreement. If the Designated Preferred Securities are
exchanged for Debentures, the Company will use its best efforts to have
the Debentures promptly included in the Nasdaq National Market or listed
on the New York Stock Exchange or other organization on which the
Designated Preferred Securities are then included or listed, and to have
the Debentures promptly registered under the Exchange Act.
(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 Underwriters' option to purchase the Option Preferred Securities
shall expire or (ii) the day following the Option Closing Date with
respect to any Option Preferred Securities that the Underwriters shall
elect to purchase, except as described in or contemplated by the
Prospectus, neither the Offerors nor any of the Subsidiaries shall take
any action (or refrain from taking any action) which will result in the
Offerors 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 of the Offerors and the Subsidiaries on
a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after
the date hereof, without the prior written consent of the
Representatives, purchase, redeem or call for redemption, or prepay or
give notice of prepayment (or announce any redemption or call for
redemption, or any repayment or notice of prepayment) of the Offerors'
securities.
(m) The Offerors shall not take, directly or indirectly,
any action designed to result in or which has constituted or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Offerors in connection
with the sale or resale of the Designated Preferred Securities in
violation of the Commission's rules and regulations, including, but not
limited to, Regulation M, and the Offerors are not aware of any such
action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the
Option Closing Date), the Offerors will not issue any press release or
other communication directly or indirectly or hold any press conference
with respect to the Offerors, the Subsidiaries or the offering of the
Designated Preferred Securities (the "Offering") without your prior
consent.
(o) The Offerors shall inform the Florida Department of
Banking and Finance at any time prior to the consummation of the
distribution of the Securities by the Underwriters if either of the
Offerors or any of the Subsidiaries commences engaging in business with
the government of Cuba or with a person or affiliate located in Cuba,
with such information to be provided within 90 days after the
commencement thereof or after a change occurs with respect to previously
reported information.
22
5. Payment of Expenses. Whether or not this Agreement is
-------------------
terminated or the sale of the Designated Preferred Securities to the
Underwriters 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
Offerors 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),
the certificates for the Designated Preferred Securities, if any, and
any blue sky surveys and/or memoranda (collectively, "Blue Sky
Memoranda") and any legal investment surveys and any supplements to
either of them;
(b) all fees, expenses and disbursements of the Offerors'
counsel and accountants;
(c) all fees and disbursements of counsel for the
Underwriters in connection with the preparation of any Blue Sky
Memoranda and any legal investment surveys and any supplements to either
of them;
(d) all filing fees and expenses incurred in connection
with filings made with the NASD;
(e) any applicable fees and other expenses incurred in
connection with the inclusion of the Designated Preferred Securities
and, if applicable, the Guarantee and the Debentures in the Nasdaq
National Market;
(f) the cost of furnishing to you 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 for 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 Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution
and delivery of the Trust Agreement, the Indenture and the Guarantee;
and
(j) all other costs and expenses incident to the
performance of the obligations of the Company hereunder and under the
Trust Agreement that are not otherwise specifically provided for in this
Section 5.
23
If the sale of Designated Preferred Securities contemplated
by this Agreement is not completed due to the termination pursuant to
the terms hereof (other than pursuant to Section 9 hereof), the Company
will pay you your accountable out-of-pocket expenses in connection
herewith or in contemplation of the performance of your obligations
hereunder, including without limitation travel expenses, reasonable
fees, expenses and disbursements of counsel or other out-of-pocket
expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any
investigation of the Offerors and the Subsidiaries, or any preparation
for the marketing, purchase, sale or delivery of the Designated
Preferred Securities, in each case following presentation of reasonably
detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated
by this Agreement is completed, the Company shall not be responsible for
payment of fees or disbursements of counsel for the Underwriters other
than in accordance with paragraph (c) above, or for the reimbursement of
any expenses of the Underwriters.
6. Conditions of the Underwriters' Obligations. The
-------------------------------------------
obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise of the Option, the Option
Preferred Securities, are subject to the accuracy of the representations
and warranties and to compliance with the agreements of the Offerors
herein as of the date hereof and as of the Closing Date (or in the case
of the Option Preferred Securities, if any, as of the Option Closing
Date), to the accuracy of the written statements of the Offerors made
pursuant to the provisions hereof, to the performance by the Offerors 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 you 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 pending, or, to the knowledge of the Offerors or
the Representatives, 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 you
and complied with to your satisfaction and to the satisfaction of
counsel for the Underwriters.
(b) No Underwriter shall have advised the Company 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 your opinion, is material or omits
to state a fact which, in your 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.
24
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Trust Agreement, and the Designated Preferred Securities, 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 or by the Trust Agreement shall be satisfactory in
all material respects to counsel for the Underwriters, and the Offerors
and the 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) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P. ("▇▇▇▇▇▇▇ ▇▇▇▇▇▇"), counsel for
the Offerors, shall have furnished to you their signed opinion, dated as
of the Closing Date or the Option Closing Date, as the case may be, in
form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the State
of Missouri, and is duly registered as a bank holding company
under the BHC Act. Each of the Subsidiaries is validly existing
and in good standing under the laws of its jurisdiction of
incorporation or organization, as the case may be. Each of the
Company and the Subsidiaries has full 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 the best of such 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. Section 1831o and, to the
best of 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 of capital stock of the
Subsidiaries;
(ii) The capital stock, Debentures and Guarantee of
the Company and the equity securities of the Trust conform to the
description thereof contained in the Prospectus in all material
respects. The capital stock of the Company authorized as of June
30, 2000 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 the best of 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 or equity securities of the
Trust, except as described in the Prospectus;
(iii) The issuance, sale and delivery of the
Designated Preferred Securities and Debentures in accordance with
the terms and conditions of this Agreement and the Indenture have
been duly authorized by all necessary actions of the Offerors.
All of the Designated Preferred Securities 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, the Prospectus and the Trust Agreement.
The Designated Preferred Securities have been approved for
inclusion in the Nasdaq National Market subject to official notice
25
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 Offerors or the
Subsidiaries pursuant to the corporate charter, by-laws or other
governing documents (including without limitation, the Trust
Agreement) of the Offerors or any of the Subsidiaries, or, to the
best of such counsel's knowledge, any agreement or other
instrument to which either Offeror or any of the Subsidiaries is a
party or by which either Offeror or any of the Subsidiaries may be
bound;
(iv) The Offerors have all requisite corporate and
trust power to enter into and perform their obligations under this
Agreement, and this Agreement has been duly and validly
authorized, executed and delivered by the Offerors and constitutes
the legal, valid and binding obligations of the Offerors
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) Each of the Indenture, the Trust Agreement and
the Guarantee has been duly qualified under the Trust Indenture
Act, has been duly authorized, executed and delivered by the
Company, and is a valid and legally binding obligation of the
Company enforceable in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity;
(vi) The Debentures have been duly authorized,
executed, authenticated and delivered by the Company, are entitled
to the benefits of the Indenture and are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity;
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general
principles of equity;
(viii) To the best of such counsel's knowledge,
neither of the Offerors 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 (including without limitation, the Trust Agreement). The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement,
and the Trust Agreement do not and will not conflict with, result
in the creation or imposition of any material lien, claim, charge,
encumbrance or restriction
26
upon any property or assets of the Offerors or the Subsidiaries or
the Designated Preferred Securities 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 charter, by-laws or
governing document (including without limitation, the Trust
Agreement) of the Offerors or the Subsidiaries, or to the best of
such 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
either Offeror or the 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, material Permit, or
rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, known
to such counsel having jurisdiction over the Offerors or the
Subsidiaries or any of their respective properties which, in each
case, is material to the Offerors and the 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 Delaware law in connection with the
transactions contemplated by this Agreement in connection with the
purchase and distribution of the Designated Preferred Securities
by the Underwriters;
(ix) To the best of such counsel's knowledge, holders
of securities of the Offerors either do not have any right that,
if exercised, would require the Offerors to cause such securities
to be included in the Registration Statement or have waived such
right. To the best of such counsel's knowledge, neither the
Offerors nor any of the Subsidiaries is a party to any agreement
or other instrument which grants rights for or relating to the
registration of any securities of the Offerors;
(x) Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's
knowledge, (i) no action, suit or proceeding at law or in equity
is pending or threatened in writing to which any of the Offerors
or the Subsidiaries is or could reasonably be expected to become a
party, and (ii) no action, suit or proceeding is pending or
threatened in writing against or affecting the Offerors 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 could reasonably be
expected to have a material adverse effect on the consummation of
this Agreement or the issuance and sale of the Designated
Preferred Securities as contemplated herein or the condition
(financial or otherwise), earnings, affairs, business, or results
of operations of the Offerors and the Subsidiaries on a
consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus and is not so disclosed;
(xi) 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 Trust Agreement, the
Registration Statement and the Prospectus, except such as have
been obtained under the 1933 Act, the 1934 Act, and the Trust
Indenture Act, and except such as may be required under state
securities laws or
27
Interpretations or Rules of the NASD in connection with the
purchase and distribution of the Designated Preferred Securities
by the Underwriters, as to which such counsel need express no
opinion;
(xii) 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 Underwriters' 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;
(xiii) To the best of such 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;
(xiv) The statements under the captions "Business-
Supervision and Regulation," "Description of the Trust,"
"Description of the Preferred Securities," "Description of the
Subordinated Debentures," "Book-Entry Issuance," "Description of
the Guarantee," "Relationship Among the Preferred Securities, the
Subordinated Debentures and the Guarantee," "Federal Income Tax
Consequences," and "ERISA Considerations" in the Prospectus,
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;
(xv) Such counsel has been advised by the staff of
the Commission that the Registration Statement has become
effective under the 1933 Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made within the time
period required by Rule 424(b); to the best of such 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;
(xvi) 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
any of the Subsidiaries (A) to pay dividends or make any other
distributions on its capital stock or to pay indebtedness owed to
the Offerors, (B) to make any loans or advances to, or investments
in, the Offerors or (C) to transfer any of its property or assets
to the Offerors; and
(xvii) To the best of such counsel's knowledge, (A)
the business and operations of the Offerors and the Subsidiaries
comply in all material respects with all statutes, ordinances,
laws, rules and regulations applicable thereto and which are
material
28
to the Offerors and the Subsidiaries on a consolidated basis,
except in those instances where non-compliance would not
materially impair the ability of the Offerors and the Subsidiaries
to conduct their business; and (B) the Offerors 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 Offerors and the
Subsidiaries on a consolidated basis, except in those instances
where the loss thereof or non-compliance therewith would not have
a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis; to the best of such 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 Offerors or the Subsidiaries to conduct their businesses.
In giving the above opinion, such counsel may state that,
insofar as such opinion involves factual matters, they have relied upon
certificates of officers of the Offerors 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 (viii),
(xiii) and (xvi) hereof and certificates of public officials. In giving
such opinion, such counsel may rely as to matters of Delaware law upon
the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. described herein.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel
has participated in conferences with officers and Representatives of the
Offerors and with their independent public accountants and with you and
your counsel, at which conferences such counsel made inquiries of such
officers, Representatives and accountants and discussed in detail 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 and related schedules and statistical data included
therein or omitted therefrom or Underwriters' 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 and related schedules and statistical data
included therein or omitted therefrom or Underwriters' 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
29
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.
(e) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. ("JSD"), counsel for the
Offerors, shall have furnished to you his signed opinion, dated as of
the Closing Date or the Option Closing Date, as the case may be, in form
and substance satisfactory to counsel for the Underwriters, to the
effect that, in connection with the preparation of the Registration
Statement and Prospectus, such counsel has participated in conferences
with officers and representatives of the Offerors and with you and your
counsel, at which conferences such counsel made inquiries of such
officers and representatives 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 and related schedules and statistical data included
therein or omitted therefrom or Underwriters' 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 and related schedules and statistical data
included therein or omitted therefrom or Underwriters' 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.
(f) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special Delaware
counsel to the Offerors, shall have furnished to you their signed
opinion, dated as of Closing Date or the Option Closing Date, as the
case may be, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act and, under the Trust Agreement and the Delaware
Business Trust Act, has the trust power and authority to conduct
its business as described in the Prospectus.
30
(ii) The Trust Agreement is a legal, valid and
binding agreement of the Company, as sponsor, and the Trustees,
and is enforceable against the Company, as sponsor, and the
Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware
Business Trust Act, the execution and delivery of the Underwriting
Agreement by the Trust, and the performance by the Trust of its
obligations thereunder, have been authorized by all requisite
trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been
duly authorized by the Trust Agreement, and when issued and sold
in accordance with the Trust Agreement, the Designated Preferred
Securities will be, subject to the qualifications set forth in
paragraph (v) below, fully paid and nonassessable beneficial
interests in the assets of the Trust and entitled to the benefits
of the Trust Agreement. The form of certificates to evidence the
Designated Preferred Securities has been approved by the Trust and
is in due and proper form and complies with all applicable
requirements of the Delaware Business Trust Act.
(v) Holders of Designated Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to shareholders of
private, for-profit corporations organized under the General
Corporation Law of the State of Delaware. Such opinion may note
that the holders of Designated Preferred Securities may be
obligated to make payments as set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Preferred
Securities is not subject to preemptive rights.
(vii) The issuance and sale by the Trust of the
Designated Preferred Securities and the Common Securities, the
execution, delivery and performance by the Trust of this
Agreement, and the consummation of the transactions contemplated
by this Agreement, do not violate (a) the Trust Agreement, or (b)
any applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the
State of Delaware and that the opinion expressed in paragraph (ii) above
is subject to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance and other similar laws relating to or affecting
the rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity
or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
(g) ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Underwriters, shall
have furnished you their 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
31
Agreement, the validity of the Designated Preferred Securities, the
Registration Statement, the Prospectus and such other related matters as
you 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, ▇▇▇▇▇ ▇▇▇▇
LLP may rely as to matters of fact upon statements and certifications of
officers of the Offerors 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 opinions of JSD, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. described herein.
(h) On the date of this Agreement and on the Closing Date
(and, if applicable, any Option Closing Date), the Representatives shall
have received from KPMG LLP a letter, 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 Representatives,
confirming that they are independent public accountants with respect to
Company (which shall be inclusive of its subsidiaries for purposes of
this Section 6(g)), 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 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 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 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 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, inspection of
the minute books of the Company since the date of the latest
audited financial statements of the Company included or
incorporated by reference in the Registration Statement, inquiries
of officials of the Company 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:
32
(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,
any increase in the consolidated debt of the Company, any
decreases in consolidated total assets or shareholders'
equity of the Company, or any changes, decreases or
increases in other items specified by the Representatives,
in each case as compared with amounts shown in the latest
unaudited interim consolidated statement of financial
condition of the Company 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 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 in the per
share amount of net income of the Company, or any changes,
decreases or increases in any other items specified by the
Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, 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 Representatives which are
derived from the general accounting records and consolidated
financial statements of the Company 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 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 Underwriters that the
Representatives 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 included in the Registration Statement, (y) reflect a
material adverse change in the items
33
specified in Clause (iii)(B) above as compared with the corresponding
periods of the prior year or other period specified by the
Representatives, or (z) reflect a material change in items specified in
Clause (iv) above from the amounts shown in the Preliminary Prospectus
distributed by the Underwriters in connection with the offering
contemplated hereby or from the amounts shown in the Prospectus.
(i) [Reserved].
(j) At the Closing Date and, if applicable, the Option
Closing Date, you shall have received certificates of the the President
and Chief Operating Officer and the Executive Vice President and Chief
Financial 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 Offerors have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to
such 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 Offerors and the Subsidiaries on a
consolidated basis; (iii) since such dates there has not been any
material transaction entered into by the Offerors or the Subsidiaries
other than transactions in the ordinary course of business; and
(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 you 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.
(k) At the Closing Date and, if applicable, the Option
Closing Date, you shall have received a certificate of an authorized
representative of the Trust to the effect that to the best of his or her
knowledge based upon a reasonable investigation, the representations and
warranties of the Trust in this Agreement are true and correct as though
made on and as of the Closing Date (and, if applicable, the Option
Closing Date); the Trust has complied with all the agreements and
satisfied all the conditions required by this Agreement to be performed
or satisfied by the Trust on or prior to the Closing Date and since the
most recent date as of which information is given in the Prospectus,
except as contemplated by the Prospectus, the Trust has not incurred any
material liabilities or obligations, direct or contingent, or entered
into any material transactions not in the ordinary course of business
and there has not been any material adverse change in the condition
(financial or otherwise) of the Trust.
(l) On the Closing Date, you shall have received duly
executed counterparts of the Trust Agreement, the Guarantee, the
Indenture and the Expense Agreement.
34
(m) The NASD, upon review of the terms of the public
offering of the Designated Preferred Securities, shall not have objected
to the Underwriters' participation in such offering.
(n) Prior to the Closing Date and, if applicable, the
Option Closing Date, the Offerors shall have furnished to you and
counsel for the Underwriters all such other documents, certificates and
opinions as they have reasonably requested.
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 you. The Offerors
shall furnish you with conformed copies of such opinions, certificates,
letters and other documents as you 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 Underwriters' obligations hereunder may be
terminated by you 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 Underwriters to the
Offerors.
7. Indemnification and Contribution.
--------------------------------
(a) The Offerors jointly and severally agree to indemnify
and hold harmless each Underwriter, each of its directors, officers and
agents, and each person, if any, who controls any Underwriter within the
meaning of the 1933 Act, against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation
and 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 or the Trust contained in Section 2(a)
of this Agreement (or any certificate delivered by the Company or the
Trust pursuant to Sections 6(j), 6(k) or 6(n) 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 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,
required to be stated therein or necessary to make the statements
therein not 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 (iii) the enforcement of this indemnification provision or the
contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any legal or other expenses as incurred (but in no
event less frequently than 30 days after each invoice is submitted) 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
35
refunded; provided, however, that the Offerors shall not be liable
-------- --------
in any such 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 Underwriters' Information; provided, that the
--------
indemnification contained in this paragraph with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter
(or of any person controlling any Underwriter) to the extent any such
losses, claims, damages, liabilities or expenses directly results from
the fact that such Underwriter sold Designated Preferred Securities 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 you in sufficient time to distribute same with or prior to
the written confirmation of the sale involved), 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 or the Trust may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless each Offeror, each of its directors, each of
its officers who signed the Registration Statement and each person, if
any, who controls an Offeror within the meaning of the 1933 Act, to the
same extent as required by the foregoing indemnity from the Company to
each Underwriter, but only with respect to the Underwriters'
Information. The foregoing indemnity agreement is in addition to any
liability which any 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 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
36
indemnifying party shall not, in connection with any one such action
or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys at any time and for all such
indemnified party and controlling persons, which firm shall be
designated in writing by the indemnified party (and, if such indemnified
parties are Underwriters, by you, as Representatives). 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 Offerors on the one hand and the Underwriters
on the other from the offering of the Designated Preferred Securities 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 Offerors on the one hand and the Underwriters 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 relative benefits received
by the Offerors on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from
the offering of the Designated Preferred Securities (before deducting
expenses) received by the Offerors bear to the total underwriting
discounts, commissions and compensation received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus.
The relative fault of the Offerors on the one hand and of the
Underwriters 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
37
information supplied by the Offerors or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The Offerors and the Underwriters 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), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public
exceeds the amount of any damages that such 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
1933 Act) 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
an Underwriter within the meaning of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each person who controls
an Offeror within the meaning of the 1933 Act, each officer and trustee
of an Offeror who shall have signed the Registration Statement and each
director of an Offeror shall have the same rights to contribution as the
Offerors subject in each case to the preceding sentence. The
obligations of the Offerors under this paragraph (d) shall be in
addition to any liability which the Offerors may otherwise have and the
obligations of the Underwriters under this paragraph (d) shall be in
addition to any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Offerors
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 any
Underwriter or any person controlling an Underwriter or by or on behalf
of the Offerors, or such directors, trustees or officers (or any person
controlling an Offeror, (ii) acceptance of any Designated Preferred
Securities and payment therefor hereunder and (iii) any termination of
this Agreement. A successor of any Underwriter or of an Offeror, such
directors, trustees or officers (or of any person controlling an
Underwriter or an Offeror) shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against any
and all losses, claims, damages or liabilities that may become due from
the Trust under this Section 7.
8. Termination. You shall have the right to terminate this
-----------
Agreement at any time by written notice at or prior to the Closing Date
or, with respect to the Underwriters' obligation to purchase the Option
Preferred Securities, at any time at or prior to the Option Closing
Date, without liability on the part of the Underwriters to the Offerors,
if:
38
(a) Either Offeror 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;
(b) The Offerors 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 Representatives materially impairs
the investment quality of the Designated Preferred Securities;
(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 condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis,
whether or not arising in the ordinary course of business;
(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 your reasonable judgment, impracticable to market the Designated
Preferred Securities or enforce contracts for the sale of the Designated
Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq 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, Missouri, Illinois, Texas or California authorities; or
(g) Any action shall have been taken by any government in
respect of its monetary affairs which, your 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 Offerors shall not then be under any liability to the
Underwriters except as provided in Sections 5 and 7 hereof.
9. Default of Underwriters. If any Underwriter or
-----------------------
Underwriters shall default in its or their obligations to purchase
Designated Preferred Securities hereunder, the other Underwriters shall
be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Designated Preferred Securities which such
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that the non-defaulting Underwriters shall be
-------- -------
under no obligation to purchase such Designated Preferred Securities if
the aggregate number of Designated Preferred Securities to be purchased
by such non-defaulting Underwriters shall exceed 110% of the
39
aggregate underwriting commitments set forth in Schedule I hereto, and
----------
provided further, that no non-defaulting Underwriter shall be
-------- -------
obligated to purchase Designated Preferred Securities to the extent that
the number of such Designated Preferred Securities is more than 110% of
such Underwriter's underwriting commitment set forth in Schedule I
----------
hereto.
In the event that the non-defaulting Underwriters are not
obligated under the above paragraph to purchase the Designated Preferred
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase, the Representatives may in their discretion arrange
for one or more of the Underwriters or for another party or parties to
purchase such Designated Preferred Securities on the terms contained
herein. If within one business day after such default the
Representatives do not arrange for the purchase of such Designated
Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or
parties satisfactory to the Representatives to purchase such Designated
Preferred Securities on such terms.
In the event that the Representatives or the Company do not
arrange for the purchase of any Designated Preferred Securities to which
a default relates as provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters
are required hereby or agree to take up all or a part of the Designated
Preferred Securities of a defaulting Underwriter or Underwriters as
provided in this Section 9, (i) you shall have the right to postpone the
Closing Date for a period of not more than five full business days, in
order to effect any changes that, in the opinion of counsel for the
Underwriters or the Company, may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
agreements, and the Company agrees promptly to file any amendments to
the Registration Statement or supplements to the Prospectus which, in
its opinion, may thereby be made necessary and (ii) the respective
numbers of Designated Preferred Securities to be purchased by the
remaining Underwriters or substituted underwriters shall be taken as the
basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting
Underwriter of any liability it may have for damages occasioned by its
default hereunder. Any termination of this Agreement pursuant to this
Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
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 Underwriters 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 Representatives shall release the Designated
Preferred Securities for initial public offering. The Representatives
shall notify the Offerors immediately after they have taken any action
which causes this Agreement to become effective.
40
Until such time as this Agreement shall have become
effective, it may be terminated by the Offerors, by notifying you or by
you, as Representatives of the several Underwriters, by notifying either
Offeror, 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 Offerors and their officers and trustees set
forth in or made pursuant to this Agreement and the agreements of the
Underwriters 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 Offerors or controlling persons of either Offeror, or by
or on behalf of the Underwriters or controlling persons of the
Underwriters, and the obligations of the Company pursuant to Section 5
shall survive delivery of and payment for the Designated Preferred
Securities and shall survive any termination or cancellation of this
Agreement.
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
either Offeror shall be sent to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ (with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, III, Esq.); and notices to the Underwriters
shall be sent to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇, to ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a division of ▇▇▇▇ ▇▇▇▇▇▇▇▇
Incorporated, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, and to ▇▇▇▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Syndicate (with
a copy to ▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.). In all dealings
with the Company under this Agreement, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a division of ▇▇▇▇ ▇▇▇▇▇▇▇▇
Incorporated and ▇▇▇▇▇▇▇▇▇▇ & Co. Inc., shall act jointly as
representatives of and on behalf of the several Underwriters, and the
Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of the Underwriters, made or given jointly
by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a
division of ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇▇▇▇ & Co. Inc., on
behalf of the Underwriters, as if the same shall have been made or given
in writing by the Underwriters. No statement, request, notice,
agreement or action issued or taken in connection with the Offering by
either ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
a division of ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated or ▇▇▇▇▇▇▇▇▇▇ & Co. Inc.,
acting alone, without the express written agreement of the other party,
shall be valid and binding against the other or the several
Underwriters.
13. Parties. The Agreement herein set forth is made solely
-------
for the benefit of the Underwriters and the Offerors and, to the extent
expressed, directors, trustees and officers of the Offerors, any person
controlling the Offerors or the Underwriters, and their respective
successors and assigns. No other person shall acquire or have any right
under or by virtue of this
41
Agreement. The term "successors and assigns" shall not include any
purchaser, in his status as such purchaser, from the Underwriters of the
Designated Preferred Securities.
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. Counterparts. This Agreement may be executed 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.
42
If the foregoing is in accordance with the your
understanding of our agreement, please sign and return to us a
counterpart hereof, whereupon this shall become a binding agreement
between the Company, the Trust and you in accordance with its terms.
Very truly yours,
FIRST BANKS, INC.
By:
---------------------------------------
Name:
Title:
FIRST PREFERRED CAPITAL TRUST II
By:
---------------------------------------
Name:
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of October , 2000
---
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By:
-------------------------------------
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a division of
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇▇ & CO. INC.
By:
-------------------------------------
Name:
Title:
For themselves and as Representatives of the several
Underwriters named in Schedule I hereto.
SCHEDULE I
----------
Underwriter Number of Preferred Securities
----------- ------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a division of ▇▇▇▇
▇▇▇▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇▇▇▇ & Co. Inc.
Total 2,000,000
=========
EXHIBIT A
LIST OF SIGNIFICANT DIRECT AND INDIRECT SUBSIDIARIES
First Bank
First Bank & Trust
First Capital Group, Inc.
First Banks America, Inc.
First Bank Texas N.A.
First Bank of California
Redwood Bank
Burdell Corp.
Eucalyptus Financial Corp.
First America Capital Trust
First Land Trustee Corp.
FB Commercial Finance, Inc.
Star Lane Holdings Trust, S.T.
Star Lane Trust
First Preferred Capital Trust
Missouri Valley Partners, Inc.
First Banc Mortgage, Inc.
First Preferred Capital Trust II
EXHIBIT B
The Company owns approximately 18% of the outstanding common stock of
Southside Bancshares, Corp.