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EXHIBIT 1
[FORM OF UNDERWRITING AGREEMENT]
3,000,000 Shares of Common Stock
RIVA BANCSHARES, INC.
UNDERWRITING AGREEMENT
, 1999
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CIBC World Markets Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital & Research Incorporated
▇▇▇▇▇▇ International Limited
c/o CIBC World Markets Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
Riva Bancshares, Inc., a Delaware corporation (the "Company") proposes,
subject to the terms and conditions contained herein, to sell to you and the
other underwriters named on Schedule I to this Agreement (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"), an aggregate
of 3,000,000 shares (the "Firm Shares") of the Company's Common Stock, $0.01 par
value per share (the "Common Stock"). The respective amounts of the Firm Shares
to be purchased by each of the several Underwriters are set forth opposite their
names on Schedule I hereto. In addition, the Company proposes to grant to the
Underwriters an option to purchase up to an additional 450,000 shares (the
"Option Shares") of Common Stock for the purpose of covering over-allotments in
connection with the sale of the Firm Shares. The Firm Shares and the Option
Shares are collectively called the "Shares." To induce the Underwriters to enter
into this Agreement, Premier Bancshares, Inc. ("Bancshares") and Premier Bank
("PB") are entering into this Agreement for the purposes set forth herein.
1. SALE AND PURCHASE OF THE SHARES. On the basis of the
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a price of $____ per share
(the "Initial Price"), the number of Firm Shares set forth opposite the
name of such Underwriter under the column Number of Firm Shares on
Schedule I to this Agreement, subject to adjustment in accordance with
Section 11 hereof.
(b) The Company grants to the several Underwriters an
option to purchase, severally and not jointly, all or any part of the
Option Shares at the Initial Price. The
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number of Option Shares to be purchased by each Underwriter shall be
the same percentage (adjusted by the Representatives to eliminate
fractions) of the total number of Option Shares to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Shares. Such
option may be exercised only to cover over-allotments in the sales of
the Firm Shares by the Underwriters and may be exercised in whole or in
part at any time on or before 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date (as defined below),
and thereafter from time to time within 30 days after the date of this
Agreement, in each case upon written or telegraphic notice, or oral or
telephonic notice confirmed by written or telegraphic notice, by the
Representatives to the Company no later than 12:00 noon, New York City
time, on the business day before the Firm Shares Closing Date or at
least two business days before the Option Shares Closing Date (as
defined below), as the case may be, setting forth the number of Option
Shares to be purchased and the time and date (if other than the Firm
Shares Closing Date) of such purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm
Shares to the Representatives for the respective accounts of the Underwriters,
and payment of the purchase price by certified or official bank check or checks
payable in New York Clearing House (same day) funds drawn to the order of the
Company for the shares purchased from the Company against delivery of the
respective certificates therefor to the Representatives, shall take place at the
offices of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, at 10:00 a.m., New York City time, on the third business day following
the date of this Agreement, or at such time on such other date, not later than
10 business days after the date of this Agreement, as shall be agreed upon by
the Company and the Representatives (such time and date of delivery and payment
are called the "Firm Shares Closing Date").
In the event the option with respect to the Option Shares is exercised
in whole or in part on one or more occasions, delivery by the Company of the
Option Shares to the Representatives for the respective accounts of the
Underwriters and payment of the purchase price thereof in immediately available
funds by wire transfer or by certified or official bank check or checks payable
in New York Clearing House (same day) funds to the Company shall take place at
the offices of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP specified above at the time and on
the date (which may be the same date as, but in no event shall be earlier than,
the Firm Shares Closing Date) specified in the notice referred to in Section
1(b) (such time and date of delivery and payment are called the "Option Shares
Closing Date"). The Firm Shares Closing Date and the Option Shares Closing Date
are called, individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
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3. REGISTRATION STATEMENT AND PROSPECTUS; PUBLIC OFFERING. The
Company has prepared and filed in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the published
rules and regulations thereunder (the "Rules") adopted by the Securities and
Exchange Commission (the "Commission"), a Registration Statement (as hereinafter
defined) on Form S-1 (No. 333-78113), including a preliminary prospectus
relating to the Shares, and such amendments thereto as may have been required to
the date of this Agreement. Copies of such Registration Statement (including all
amendments thereof) and of the related Preliminary Prospectus (as hereinafter
defined) have heretofore been delivered by the Company to you. The term
"Preliminary Prospectus" means any preliminary prospectus (as described in Rule
430 of the Rules) included at any time as a part of the Registration Statement
or filed with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules. The term "Registration
Statement" as used in this Agreement means the initial registration statement
(including all exhibits and financial schedules), as amended at the time and on
the date it becomes effective (the "Effective Date"), including the information
(if any) deemed to be part thereof at the time of effectiveness pursuant to Rule
430A of the Rules. If the Company has filed an abbreviated registration
statement to register additional Shares pursuant to Rule 462(b) under the Rules
(the "462(b) Registration Statement") then any reference herein to the
Registration Statement shall also be deemed to include such 462(b) Registration
Statement. The term "Prospectus" as used in this Agreement means the prospectus
included in the Registration Statement in the form first used to confirm sales
of the Shares.
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the Effective Date and the date of this Agreement as the Representatives
deem advisable. The Company hereby confirms that the Underwriters and dealers
have been authorized to distribute or cause to be distributed each Preliminary
Prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter, as of the date hereof and as of the
Firm Shares Closing Date giving effect to the transactions contemplated by the
Merger Agreement (as defined below) as follows:
(a) On the Effective Date, the Registration Statement
complied, and on the date of the Prospectus, the date any
post-effective amendment to the Registration Statement becomes
effective, the date any supplement or amendment to the Prospectus is
filed with the Commission and each Closing Date, the Registration
Statement and the Prospectus (and any amendment thereof or supplement
thereto) will comply, in all material respects, with the applicable
provisions of the Securities Act and the Rules. The Registration
Statement did not, as of the Effective Date, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. On the Effective Date and on the
other dates referred to above the Prospectus did not and will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
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misleading. When any Preliminary Prospectus was first filed with the
Commission (whether filed as part of the Registration Statement or any
amendment thereto or pursuant to Rule 424(a) of the Rules) and when any
amendment thereof or supplement thereto was first filed with the
Commission, such preliminary prospectus as amended or supplemented
complied in all material respects with the applicable provisions of the
Securities Act and the Rules and did not contain any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Notwithstanding the
foregoing, none of the representations and warranties in this paragraph
4(a) shall apply to statements in, or omissions from, the Registration
Statement or the Prospectus made in reliance upon, and in conformity
with, information herein or otherwise furnished in writing by the
Representatives on behalf of the several Underwriters for use in the
Registration Statement or the Prospectus. With respect to the preceding
sentence, the Company acknowledges that the only information furnished
in writing by the Representatives on behalf of the several Underwriters
for use in the Registration Statement or the Prospectus are the
following paragraphs appearing under the caption "Underwriting" in the
Prospectus: (i) the fourth full paragraph, concerning the terms of the
offering; and (ii) the eleventh full paragraph, including the text set
forth in the bullet points, concerning stabilization and syndicate
covering transactions.
(b) The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or preventing
the use of the Prospectus has been issued and no proceedings for that
purpose have been instituted or are threatened under the Securities
Act. Any required filing of the Prospectus and any supplement thereto
pursuant to Rule 424(b) of the Rules has been or will be made in the
manner and within the time period required by such Rule 424(b).
(c) The Company and Bancshares have entered into the
Agreement and Plan of Merger, dated as of May 6, 1999 and filed as an
exhibit to the Registration Statement, pursuant to which Bancshares
will merge with and into the Company (the "Merger Agreement") and PB
will become a wholly-owned subsidiary of the Company. The Merger
Agreement has been duly and validly authorized, executed and delivered
by the Company and constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
(d) The financial statements of the Company (including
all notes and schedules thereto) included in the Registration Statement
and Prospectus present fairly the financial condition, the results of
operations, the statements of cash flows and the statements of
shareholders' equity and the other information purported to be shown
therein of the Company at the respective dates and for the respective
periods to which they apply; and such financial statements and related
schedules and notes have been prepared in conformity with generally
accepted accounting principles, consistently applied throughout the
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periods involved, and all adjustments necessary for a fair presentation
of the results for such periods have been made. The summary and
selected financial data included in the Prospectus present fairly the
information shown therein as at the respective dates and for the
respective periods specified and the summary and selected financial
data have been presented on a basis consistent with the consolidated
financial statements so set forth in the Prospectus and other financial
information. The pro forma financial statements and other pro forma
financial information included in the Registration Statement have been
prepared on a basis consistent with the Company's, Bancshare's or PB's
historical statements, except for the pro forma adjustments specified
therein, and give effect to assumptions made on a reasonable basis and
present fairly in all material respects the historical and proposed
transactions contemplated by the Registration Statement and this
Agreement. The other financial and statistical information and data
included in the Registration Statement are accurately presented in all
material respects and prepared on a basis consistent with the financial
statements and the books and records of the Company, Bancshares and PB.
(e) KPMG LLP, whose reports are filed with the Commission
as a part of the Registration Statement, are, and during the periods
covered by their reports were, independent public accountants as
required by the Securities Act and the Rules.
(f) The Company and each of its Subsidiaries (as
hereinafter defined) are corporations duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Company and each such subsidiary or other entity controlled directly or
indirectly by the Company as of the date hereof and as of the Closing
Date (including Bancshares), as set forth on Schedule II hereto
(collectively, the "Subsidiaries"), is duly qualified to do business
and are in good standing as a foreign corporation in each jurisdiction
in which the nature of the business conducted by it or location of the
assets or properties owned, leased or licensed by it requires such
qualification, except for such jurisdictions where the failure to so
qualify individually or in the aggregate would not have a material
adverse effect on the assets or properties, business, results of
operations or financial condition of the Company, Bancshares or PB,
either individually or taken as a whole (a "Material Adverse Effect").
The Company does not own, lease or license any asset or property or
conduct any business outside the United States of America. The Company
and each of its Subsidiaries have all requisite corporate power and
authority, and all necessary authorizations, approvals, consents,
orders, licenses, certificates and permits of and from all governmental
or regulatory bodies or any other person or entity (collectively, the
"Permits"), to own, lease and license its assets and properties and
conduct its business, all of which are valid and in full force and
effect, as described in the Registration Statement and the Prospectus,
except where the lack of such Permits individually or in the aggregate
would not have a Material Adverse Effect. The Company and each of its
Subsidiaries have fulfilled and performed in all material respects all
of their obligations with respect to such Permits and no event has
occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the Company thereunder. Except as may be
required under the Securities Act and state and foreign Blue Sky laws,
no other Permits are required to enter into, deliver and perform this
Agreement, the Merger Agreement and to issue and sell the Shares.
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(g) Each of the Company and its Subsidiaries owns or
possesses adequate and enforceable rights to use all trademarks,
trademark applications, trade names, service marks, copyrights,
copyright applications, licenses, know-how and other similar rights and
proprietary knowledge (collectively, "Intangibles") described in the
Prospectus as being owned by it necessary for the conduct of its
business. Neither the Company nor any of its Subsidiaries has received
any notice of, or is aware of, any infringement of or conflict with
asserted rights of others with respect to any Intangibles.
(h) The Company and each of its Subsidiaries have good
and marketable title in fee simple to all items of real property and
good and marketable title to all personal property described in the
Prospectus as being owned by it. Any real property and buildings
described in the Prospectus as being held under lease by the Company
and each of its Subsidiaries is held by it under valid, existing and
enforceable leases, free and clear of all liens, encumbrances, claims,
security interests and defects, except such as are described in the
Registration Statement and the Prospectus or would not individually or
in the aggregate have a Material Adverse Effect.
(i) There is no litigation or governmental proceeding to
which the Company or its Subsidiaries is subject or which is pending
or, to the knowledge of the Company, threatened, against the Company or
any of its Subsidiaries, which individually or in the aggregate might
have a Material Adverse Effect or affect the consummation of the
transactions contemplated by this Agreement or the Merger Agreement or
which is required to be disclosed in the Registration Statement and the
Prospectus that is not so disclosed.
(j) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as described therein: (A) there has not been any material
adverse change with regard to the assets or properties, business,
results of operations or financial condition of the Company; (B)
neither the Company nor its Subsidiaries have sustained any loss or
interference with its assets, businesses or properties (whether owned
or leased) from fire, explosion, earthquake, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or any
court or legislative or other governmental action, order or decree
which would have a Material Adverse Effect; and (C) since the date of
the latest balance sheet included in the Registration Statement and the
Prospectus, except as reflected therein, neither the Company nor its
Subsidiaries has (i) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money, except such
liabilities or obligations incurred in the ordinary course of business,
(ii) entered into any transaction not in the ordinary course of
business or (iii) declared or paid any dividend or made any
distribution on any shares of its stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire
any shares of its stock.
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(k) There is no document, contract or other agreement of
a character required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required by the Securities Act or
the Rules. Each description of a contract, document or other agreement
in the Registration Statement and the Prospectus accurately reflects in
all respects the terms of the underlying document, contract or
agreement. Each agreement described in the Registration Statement and
Prospectus or listed in the Exhibits to the Registration Statement is
in full force and effect and is valid and enforceable by and against
the Company or any of its Subsidiaries, as the case may be, in
accordance with its terms. Neither the Company nor any of its
Subsidiaries, nor to the Company's knowledge, any other party, is in
default in the observance or performance of any term or obligation to
be performed by it under any such agreement, and no event has occurred
which with notice or lapse of time or both would constitute such a
default, in any such case which default or event individually or in the
aggregate would have a Material Adverse Effect. No default exists, and
no event has occurred which with notice or lapse of time or both would
constitute a default, in the due performance and observance of any
term, covenant or condition, by the Company or any of its Subsidiaries
of any other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or its properties or business
may be bound or affected which default or event individually or in the
aggregate would have a Material Adverse Effect.
(l) Neither the Company nor any of its Subsidiaries is in
violation of any term or provision of its charter or by-laws or of any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation.
(m) Neither the execution, delivery and performance of
this Agreement or the Merger Agreement by the Company nor the
consummation of any of the transactions contemplated hereby or thereby
(including the issuance and sale by the Company of the Shares) will
give rise to a right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the breach of any term
or provision of, or constitute a default (or an event which with notice
or lapse of time or both would constitute a default) under, or require
any consent or waiver under, or result in the execution or imposition
of any lien, charge or encumbrance upon any properties or assets of the
Company or any of its Subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which
either the Company or any of its Subsidiaries or any of their
properties or businesses is bound, or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation applicable to the
Company or any of its Subsidiaries or violate any provision of the
charter or by-laws of the Company or any of its Subsidiaries, except
for such consents or waivers which have already been obtained and are
in full force and effect.
(n) The Company has authorized and outstanding capital
stock as set forth under the caption "Capitalization" in the
Prospectus. The certificates evidencing the Shares are in due and
proper legal form and have been duly authorized for issuance by the
Company. All of the issued and outstanding shares of Common Stock have
been duly and validly issued and are fully paid and nonassessable.
There are no statutory preemptive or
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other similar rights to subscribe for or to purchase or acquire any
shares of Common Stock of the Company or its Subsidiaries or any such
rights pursuant to its Certificate of Incorporation or by-laws or any
agreement or instrument to or by which the Company or any of its
Subsidiaries is a party or bound. The Shares, when issued and sold
pursuant to this Agreement, will be duly and validly issued, fully paid
and nonassessable and none of them will be issued in violation of any
preemptive or other similar right. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and there
is no commitment, plan or arrangement to issue, any share of stock of
the Company or its Subsidiaries or any security convertible into, or
exercisable or exchangeable for, such stock. The Common Stock and the
Shares conform in all material respects to all statements in relation
thereto contained in the Registration Statement and the Prospectus. All
outstanding shares of capital stock of each Subsidiary have been duly
authorized and validly issued, and are fully paid and nonassessable and
are owned directly by the Company, free and clear of any security
interests, liens, encumbrances, equities or claims.
(o) No holder of any security of the Company has the
right to have any security owned by such holder included in the
Registration Statement or to demand registration of any security owned
by such holder during the period ending 180 days after the date of this
Agreement. Each director and executive officer of the Company, and each
holder of 1% or more of the issued and outstanding Common Stock of the
Company, has delivered to the Representatives such person's enforceable
written lock-up agreement in the form attached to this Agreement on
Schedule III (the "Lock-Up Agreement").
(p) All necessary corporate action has been duly and
validly taken by the Company to authorize the execution, delivery and
performance of this Agreement and the Merger Agreement and the issuance
and sale of the Shares by the Company. This Agreement and the Merger
Agreement have been duly and validly authorized, executed and delivered
by the Company and constitute legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
(q) Neither the Company nor any of its Subsidiaries are
involved in any labor dispute nor, to the knowledge of the Company, is
any such dispute threatened. The Company is not aware of any existing
or imminent labor disturbance by the employees of any of its or its
Subsidiaries principal suppliers or contractors which individually or
in the aggregate would have a Material Adverse Effect. The Company is
not aware of any threatened or pending litigation between the Company
or its Subsidiaries and any of its or their executive officers which
individually or in the aggregate, if adversely determined, could have a
Material Adverse Effect and has no reason to believe that such officers
will not remain in the employment of the Company or its Subsidiaries.
(r) No transaction has occurred between or among the
Company and any of its officers, directors or 5% or greater
shareholders or any affiliate or affiliates of any such
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officer, director or 5% or greater shareholder that is required to be
described in and is not described in the Registration Statement and the
Prospectus.
(s) The Company has not taken, nor will it take, directly
or indirectly, any action designed to or which might reasonably be
expected to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of
any of the Shares.
(t) The Company and its Subsidiaries have filed all
Federal, state, local and foreign tax returns which are required to be
filed through the date hereof, or have received extensions thereof, and
have paid all taxes shown on such returns and all assessments received
by them to the extent that the same are material and have become due.
There are no tax audits or investigations nor are there any material
proposed additional tax assessments against the Company or any of its
Subsidiaries.
(u) The Shares have been duly authorized for quotation on
the Nasdaq National Market ("Nasdaq") of The Nasdaq Stock Market, Inc.,
subject to official Notice of Issuance. A registration statement has
been filed on Form 8-A pursuant to Section 12 of the Exchange Act,
which registration statement complies in all material respects with the
Exchange Act.
(v) The Company has complied with all of the requirements
and filed the required forms as specified in Florida Statutes Section
517.075.
(w) The books, records and accounts of the Company and
its Subsidiaries accurately and fairly reflect, in reasonable detail,
the transactions in, and dispositions of, the assets of, and the
results of operations of, the Company and its Subsidiaries. The Company
and each of its Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally
accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(x) The Company and its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are customary in the businesses in which
they are engaged or propose to engage after giving effect to the
transactions described in the Prospectus. Neither the Company nor any
Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect. Neither the Company nor any Subsidiary has been denied any
insurance coverage which it has sought or for which it has applied.
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(y) Each approval, consent, order, authorization,
designation, declaration or filing of, by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the
Merger Agreement and the consummation of the transactions herein and
therein contemplated required to be obtained or performed by the
Company (except such additional steps as may be necessary to qualify
the Shares for public offering by the Underwriters under state
securities or Blue Sky laws) have been obtained or made and are in full
force and effect.
(z) No officer, director or 5% or greater shareholder of
the Company has any affiliation with any NASD member firm.
(aa) (i) Each of the Company and its Subsidiaries is in
compliance in all material respects with all rules, laws and
regulations relating to the use, treatment, storage and disposal of
toxic substances and protection of health or the environment
("Environmental Laws") which are applicable to its business; (ii) none
of the Company or its Subsidiaries has received any notice from any
governmental authority or third party of an asserted claim under
Environmental Laws; (iii) each of the Company and its Subsidiaries has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and is in
compliance with all terms and conditions of any such permit, license or
approval; (iv) no facts currently exist that will require the Company
or its Subsidiaries to make future material capital expenditures to
comply with Environmental Laws; and (v) no property which is or has
been owned, leased or occupied by the Company or its Subsidiaries has
been designated as a Superfund site pursuant to the Comprehensive
Environmental Response, Compensation of Liability Act of 1980, as
amended (42 U.S.C. Section 9601, et. seq.) ("CERCLA") or otherwise
designated as a contaminated site under applicable state or local law.
(bb) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of proceeds thereof
as described in the Prospectus, will not be an "investment company" or
an entity controlled by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(cc) Neither the Company, its Subsidiaries nor any other
person associated with or acting on behalf of the Company or its
Subsidiaries, including any director, officer, agent or employee of the
Company or its Subsidiaries, has, directly or indirectly, while acting
on behalf of the Company or its Subsidiaries (i) used any corporate
funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity; (ii) made any
unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended; or (iv) made any other unlawful
payment.
(dd) All material disclosure regarding year 2000
compliance that is required to be described under the Securities Act
and the regulations and pronouncements of the
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Commission has been included in the Prospectus. Neither the Company nor
any Subsidiary will incur material operating expenses or costs to
ensure that its information systems will be year 2000 compliant.
(ee) The deposit accounts and investment certificates of
the Subsidiaries are duly insured by the Federal Deposit Insurance
Corporation (the "FDIC") to the fullest extent permitted by law. No
charge, investigation or proceeding for the termination or revocation
of either the Company or any of its Subsidiaries' charter, good
standing or FDIC insurance is pending, or to the knowledge of the
Company, threatened.
(ff) Neither the Company nor any of its Subsidiaries are
subject to any order of the Federal Reserve Board (the "FRB"), the
FDIC, the Missouri Department of Finance or the Office of the
Comptroller of the Currency, nor are the Company or any of its
Subsidiaries subject to any agreement or consent with, or board
resolution adopted at the instigation of, any such regulatory
authorities. The Company and its Subsidiaries have conducted and are
conducting their businesses so as to comply in all material respects
with all applicable federal and state laws, rules, regulations,
decisions, directives and orders (including without limitation the
rules, regulations, decisions, directives and orders of the FRB, the
FDIC, the Missouri Department of Finance and the Office of the
Comptroller of the Currency). No charge, investigation or proceeding
with respect to the Company or its Subsidiaries is pending or, to the
best of the Company's knowledge, threatened, by or before any
regulatory, administrative or governmental agency, body or authority.
(gg) The Company and each of its Subsidiaries are in
compliance with all applicable capital requirements. The Company and
each of its Subsidiaries are "well capitalized" as defined in FDIC
regulations and will be "well capitalized" after the payment of any
special assessment levied by the FDIC, and neither the Company nor any
Subsidiary is, to the Company's knowledge, threatened with or being
considered for receivership or any special supervision by the FRB, the
FDIC, the Missouri Department of Finance or the Office of the
Comptroller of the Currency.
(hh) The Company is a "bank holding company" within the
meaning of the Bank Holding Company Act of 1956, as amended.
(ii) The Company has not offered, or caused the
Underwriters to offer, Shares to any person with the specific intent to
unlawfully influence (i) a customer or supplier of the Company to alter
the customer's or supplier's level or type of business with the Company
or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its business.
5. REPRESENTATIONS AND WARRANTIES OF PREMIER BANCSHARES, INC. AND
PREMIER BANK. Bancshares and PB hereby represent and warrant to each Underwriter
as follows:
(a) This Agreement and the Merger Agreement have been
duly and validly authorized, executed and delivered by Bancshares and
constitute legal, valid and binding obligations of Bancshares and PB,
enforceable against Bancshares and PB in accordance
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with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
(b) The financial statements of Bancshares and PB
(including all notes and schedules thereto) included in the
Registration Statement and Prospectus present fairly the financial
condition, the results of operations, the statements of cash flows and
the statements of shareholders' equity and the other information
purported to be shown therein of Bancshares and PB at the respective
dates and for the respective periods to which they apply; and such
financial statements and related schedules and notes have been prepared
in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of the results for such
periods have been made. The summary and selected financial data
included in the Prospectus present fairly the information shown therein
as at the respective dates and for the respective periods specified and
the summary and selected financial data have been presented on a basis
consistent with the consolidated financial statements so set forth in
the Prospectus and other financial information.
(c) KPMG LLP, whose reports are filed with the Commission
as a part of the Registration Statement, are, and during the periods
covered by their reports were, independent public accountants as
required by the Securities Act and the Rules.
(d) Bancshares is a corporation duly organized, validly
existing and in good standing under the laws of the State of Missouri.
PB is a corporation duly organized, validly existing and in good
standing under the laws of the State of Missouri. Each of Bancshares
and Premier is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction in which the nature of the
business conducted by it or location of the assets or properties owned,
leased or licensed by it requires such qualification, except for such
jurisdictions where the failure to so qualify individually or in the
aggregate would not have a Material Adverse Effect. Neither Bancshares
nor PB owns, leases or licenses any asset or property or conducts any
business outside the United States of America. Each of Bancshares and
PB has all requisite corporate power and authority, and all Permits to
own, lease and license its assets and properties and conduct its
business, all of which are valid and in full force and effect, as
described in the Registration Statement and the Prospectus, except
where the lack of such Permits individually or in the aggregate would
not have a Material Adverse Effect. Each of Bancshares and PB has
fulfilled and performed in all material respects all of their
obligations with respect to such Permits and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of Bancshares or PB thereunder.
(e) Each of Bancshares and PB owns or possesses adequate
and enforceable rights to use all Intangibles described in the
Prospectus as being owned by it necessary for the conduct of its
business. Neither Bancshares nor PB has received any notice of, or is
aware of, any infringement of or conflict with asserted rights of
others with respect to any Intangibles.
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(f) Each of Bancshares and PB has good and marketable
title in fee simple to all items of real property and good and
marketable title to all personal property described in the Prospectus
as being owned by it. Any real property and buildings described in the
Prospectus as being held under lease by either Bancshares or PB is held
by it under valid, existing and enforceable leases, free and clear of
all liens, encumbrances, claims, security interests and defects, except
such as are described in the Registration Statement and the Prospectus
or would not individually or in the aggregate have a Material Adverse
Effect.
(g) There is no litigation or governmental proceeding to
which either Bancshares or PB is subject or which is pending or, to the
knowledge of Bancshares or PB, threatened, against either Bancshares or
PB, which individually or in the aggregate might have a Material
Adverse Effect or affect the consummation of the transactions
contemplated by this Agreement or the Merger Agreement or which is
required to be disclosed in the Registration Statement and the
Prospectus that is not so disclosed.
(h) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as described therein: (A) there has not been any material
adverse change with regard to the assets or properties, business,
results of operations or financial condition of either Bancshares or
PB; (B) neither Bancshares nor PB has sustained any loss or
interference with its assets, businesses or properties (whether owned
or leased) from fire, explosion, earthquake, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or any
court or legislative or other governmental action, order or decree
which would have a Material Adverse Effect; and (C) since the date of
the latest balance sheet included in the Registration Statement and the
Prospectus, except as reflected therein, neither Bancshares nor PB has
(i) issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money, except such liabilities or
obligations incurred in the ordinary course of business, (ii) entered
into any transaction not in the ordinary course of business or (iii)
declared or paid any dividend or made any distribution on any shares of
its stock or redeemed, purchased or otherwise acquired or agreed to
redeem, purchase or otherwise acquire any shares of its stock.
(i) There is no document, contract or other agreement of
a character required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required by the Securities Act or
the Rules. Each description of a contract, document or other agreement
that relates to either Bancshares or PB in the Registration Statement
and the Prospectus accurately reflects in all respects the terms of the
underlying document, contract or agreement. Each agreement that relates
to either Bancshares or PB described in the Registration Statement and
Prospectus or listed in the Exhibits to the Registration Statement is
in full force and effect and is valid and enforceable by and against
Bancshares or PB, as the case may be, in accordance with its terms.
Neither Bancshares nor PB, nor to Bancshares' or PB's knowledge, any
other party, is in default in the observance or performance of any term
or obligation to be performed by it under any such agreement, and no
event has occurred which with notice or lapse of time or both would
constitute such a default, in any such case which default or event
individually or in the aggregate would have a Material
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Adverse Effect. No default exists, and no event has occurred which with
notice or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition, by
Bancshares or PB of any other agreement or instrument to which either
Bancshares or PB is a party or by which it or its properties or
business may be bound or affected which default or event individually
or in the aggregate would have a Material Adverse Effect.
(j) Neither Bancshares nor PB is in violation of any term
or provision of its charter or by-laws or of any franchise, license,
permit, judgment, decree, order, statute, rule or regulation, where the
consequences of such violation individually or in the aggregate would
have a Material Adverse Effect.
(k) Neither the execution, delivery and performance of
this Agreement or the Merger Agreement by Bancshares and PB nor the
consummation of any of the transactions contemplated hereby or thereby
(including the issuance and sale by the Company of the Shares) will
give rise to a right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the breach of any term
or provision of, or constitute a default (or an event which with notice
or lapse of time or both would constitute a default) under, or require
any consent or waiver under, or result in the execution or imposition
of any lien, charge or encumbrance upon any properties or assets of
Bancshares or PB pursuant to the terms of, any indenture, mortgage,
deed of trust or other agreement or instrument to which Bancshares or
PB is a party or by which either Bancshares or PB or any of their
properties or businesses is bound, or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation applicable to
Bancshares or PB or violate any provision of the charter or by-laws of
Bancshares or PB, except for such consents or waivers which have
already been obtained and are in full force and effect.
(l) All necessary corporate action has been duly and
validly taken by Bancshares and PB to authorize the execution, delivery
and performance of this Agreement and the Merger Agreement.
(m) Neither Bancshares nor PB is involved in any labor
dispute nor, to the knowledge of Bancshares or PB, is any such dispute
threatened, which dispute individually or in the aggregate would have a
Material Adverse Effect. Neither Bancshares nor PB is aware of any
existing or imminent labor disturbance by the employees of any of its
principal suppliers or contractors which individually or in the
aggregate would have a Material Adverse Effect. Neither Bancshares nor
PB is aware of any threatened or pending litigation between either
Bancshares or PB and any of PB's or the Company's executive officers
which individually or in the aggregate, if adversely determined, could
have a Material Adverse Effect and has no reason to believe that such
officers will not remain in the employment of PB.
(n) Each of Bancshares and PB has filed all Federal,
state, local and foreign tax returns which are required to be filed
through the date hereof, or have received extensions thereof, and have
paid all taxes shown on such returns and all assessments received by
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15
them to the extent that the same are material and have become due.
There are no tax audits or investigations pending which if adversely
determined would have a Material Adverse Effect; nor are there any
material proposed additional tax assessments against either Bancshares
or PB.
(o) Each of Bancshares and PB has complied with all of
the requirements and filed the required forms as specified in Florida
Statutes Section 517.075.
(p) The books, records and accounts of Bancshares and PB
accurately and fairly reflect, in reasonable detail, the transactions
in, and dispositions of, the assets of, and the results of operations
of, each of Bancshares and PB. Each of Bancshares and PB maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only
in accordance with management's general or specific authorization and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(q) Each of Bancshares and PB are insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are customary in the businesses in which they are
engaged. Neither Bancshares nor PB has any reason to believe that it
will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect. Neither Bancshares nor PB has
been denied any insurance coverage which it has sought or for which it
has applied.
(r) Each approval, consent, order, authorization,
designation, declaration or filing of, by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by Bancshares and PB of this Agreement and
the Merger Agreement and the consummation of the transactions
contemplated herein and therein that are required to be obtained or
performed by each of Bancshares and PB have been obtained or made and
are in full force and effect.
(s) No officer, director or 5% or greater shareholder of
Bancshares or PB has any affiliation with any NASD member firm.
(t) (i) Each of Bancshares and PB is in compliance in all
material respects with all Environmental Laws which are applicable to
its business; (ii) none of Bancshares or PB has received any notice
from any governmental authority or third party of an asserted claim
under Environmental Laws; (iii) each of Bancshares and PB has received
all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and is in
compliance with all terms and conditions of any such permit, license or
approval; (iv) to the knowledge of Bancshares and PB, no facts
currently exist that will
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require Bancshares or PB to make future material capital expenditures
to comply with Environmental Laws; and (v) no property which is or has
been owned, leased or occupied by Bancshares or PB has been designated
as a Superfund site pursuant to the CERCLA or otherwise designated as a
contaminated site under applicable state or local law.
(u) Neither Bancshares nor PB, after giving effect to the
offering and sale of the Shares and the application of proceeds thereof
as described in the Prospectus, will be an "investment company" or an
entity controlled by an "investment company" within the meaning of the
Investment Company Act.
(v) Neither Bancshares nor PB nor any other person
associated with or acting on behalf of Bancshares or PB, including any
director, officer, agent or employee of Bancshares or PB, has, directly
or indirectly, while acting on behalf of Bancshares or PB (i) used any
corporate funds for unlawful contributions, gifts, entertainment or
other unlawful expenses relating to political activity; (ii) made any
unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended; or (iv) made any other unlawful
payment.
(w) All material disclosure regarding year 2000
compliance that is required to be described under the Securities Act
and the regulations and pronouncements of the Commission has been
included in the Prospectus. Neither Bancshares nor PB will incur
material operating expenses or costs to ensure that its information
systems will be year 2000 compliant.
(x) The deposit accounts and investment certificates of
PB are duly insured by the FDIC to the fullest extent permitted by law.
No charge, investigation or proceeding for the termination or
revocation of either Bancshares or PB or of their charter, good
standing or FDIC insurance is pending, or to the knowledge of the
either Bancshares or PB, threatened.
(y) Neither Bancshares nor PB is subject to any order of
the FRB, the FDIC, the Missouri Department of Finance or the Office of
the Comptroller of the Currency, nor is Bancshares or PB subject to any
agreement or consent with, or board resolution adopted at the
instigation of, any such regulatory authorities. Bancshares and PB have
conducted and are conducting their businesses so as to comply in all
material respects with all applicable federal and state laws, rules,
regulations, decisions, directives and orders (including without
limitation the rules, regulations, decisions, directives and orders of
the FRB, the FDIC, the Missouri Department of Finance and the Office of
the Comptroller of the Currency). No charge, investigation or
proceeding with respect to Bancshares or PB is pending or, to the best
knowledge of Bancshares or PB, is threatened, by or before any
regulatory, administrative or governmental agency, body or authority.
(z) Each of Bancshares and PB is in compliance with all
applicable capital requirements. Each of Bancshares and PB is "well
capitalized" as defined in FDIC regulations and will be "well
capitalized" after the payment of any special assessment
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levied by the FDIC, and neither Bancshares nor PB is, to the knowledge
of Bancshares or PB, threatened with or being considered for
receivership or any special supervision by the FRB, the FDIC, the
Missouri Department of Finance or the Office of the Comptroller of the
Currency.
(aa) Bancshares is a "bank holding company" within the
meaning of the Bank Holding Company Act of 1956, as amended.
(bb) Neither Bancshares nor PB has offered, or caused the
Underwriters to offer, Shares to any person with the specific intent to
unlawfully influence (i) a customer or supplier of the Company,
Bancshares or PB to alter the customer's or supplier's level or type of
business with the Company, Bancshares or PB or (ii) a trade journalist
or publication to write or publish favorable information about the
Company, Bancshares or PB or its business.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters under this Agreement are several and not joint. The
respective obligations of the Underwriters to purchase the Shares are subject to
each of the following terms and conditions:
(a) Notification that the Registration Statement has
become effective shall have been received by the Representatives and
the Prospectus shall have been timely filed with the Commission in
accordance with Section 7(a)(i) of this Agreement.
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus shall have been or shall be in
effect and no order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission, and any requests for
additional information on the part of the Commission (to be included in
the Registration Statement or the Prospectus or otherwise) shall have
been complied with to the satisfaction of the Commission and the
Representatives.
(c) The representations and warranties of the Company,
Bancshares and PB contained in this Agreement and in the certificates
delivered pursuant to Sections 6(d), 6(e) and 6(f) shall be true and
correct when made and on and as of each Closing Date as if made on such
date. The Company, Bancshares and PB shall have performed all covenants
and agreements and satisfied all the conditions contained in this
Agreement required to be performed or satisfied by them at or before
such Closing Date.
(d) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives and dated
such Closing Date, of the chief executive officer and the chief
financial officer of the Company, to the effect that (i) they have
carefully examined the Registration Statement, the Prospectus and this
Agreement and that the representations and warranties of the Company in
this Agreement are true and correct on and as of such Closing Date with
the same effect as if made on such Closing Date and the Company has
performed all covenants and agreements and satisfied all conditions
contained in this Agreement required to be performed or satisfied by it
at or
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prior to such Closing Date, and (ii) no stop order suspending the
effectiveness of the Registration Statement has been issued and to the
best of their knowledge, no proceedings for that purpose have been
instituted or are pending under the Securities Act.
(e) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives and dated
such Closing Date, of Bancshares and PB, to the effect that they have
carefully examined the Registration Statement, the Prospectus and this
Agreement and that the representations and warranties of each of
Bancshares and PB in this Agreement are true and correct on and as of
such Closing Date with the same effect as if made on such Closing Date.
(f) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives and dated
such Closing Date, of Bancshares and PB, to the effect that the
representations and warranties of Bancshares and PB in this Agreement
are true and correct on and as of such Closing Date with the same
effect as if made on such Closing Date and each of Bancshares and PB
has performed all covenants and agreements and satisfied all conditions
contained in this Agreement required to be performed or satisfied by it
at or prior to such Closing Date.
(g) The Representatives shall have received at the time
this Agreement is executed and on each Closing Date a signed letter
from KPMG LLP addressed to the Representatives and dated, respectively,
the date of this Agreement and each such Closing Date, in form and
substance reasonably satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the
Securities Act and the Rules, that the response to Item 10 of the
Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included in the
Registration Statement and the Prospectus and reported on by
them comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and
the Rules;
(ii) on the basis of a reading of the amounts
included in the Registration Statement and the Prospectus
under the headings "Prospectus Summary--Summary Consolidated
Financial Data" and "Selected Consolidated Financial Data,"
carrying out certain procedures (but not an examination in
accordance with Generally Accepted Auditing Standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter, a reading of
the minutes of the meetings of the shareholders and directors
of the Company, Bancshares and PB, and inquiries of certain
officials of the Company, Bancshares and PB who have
responsibility for financial and accounting matters of the
Company, Bancshares and PB as to transactions and events
subsequent to the date of the latest audited financial
statements, except as disclosed in the Registration Statement
and the Prospectus, nothing came to their attention which
caused them to believe that:
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(A) the amounts in "Prospectus
Summary--Summary Consolidated Financial Data" and
"Selected Consolidated Financial Data" included in
the Registration Statement and the Prospectus do not
agree with the corresponding amounts in the audited
and unaudited financial statements from which such
amounts were derived; or
(B) with respect to the Company,
Bancshares and PB, there were, at a specified date
not more than five business days prior to the date of
the letter, any increases in the current liabilities
and long-term liabilities of the Company, Bancshares
and PB or any decreases in net income or in working
capital or the shareholders' equity in the Company,
Bancshares and PB, as compared with the amounts shown
on the Company's, Bancshares and PB audited balance
sheet for the fiscal year ended December 31, 1998 and
the three months ended March 31, 1999 included in the
Registration Statement;
(iii) they have performed certain other procedures
as may be permitted under Generally Acceptable Auditing
Standards as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company, Bancshares and PB) set forth in the Registration
Statement and the Prospectus and reasonably specified by the
Representatives agrees with the accounting records of the
Company, Bancshares and PB; and
(iv) based upon the procedures set forth in
clauses (ii) and (iii) above and a reading of the amounts
included in the Registration Statement under the headings
"Prospectus Summary--Summary Consolidated Financial Data" and
"Selected Consolidated Financial Data" included in the
Registration Statement and Prospectus and a reading of the
financial statements from which certain of such data were
derived, nothing has come to their attention that gives them
reason to believe that the "Prospectus Summary--Summary
Consolidated Financial Data" and "Selected Consolidated
Financial Data" included in the Registration Statement and
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Securities
Act and the Rules or that the information set forth therein is
not fairly stated in relation to the financial statements
included in the Registration Statement or Prospectus from
which certain of such data were derived and are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included in the Registration
Statement and Prospectus.
References to the Registration Statement and the Prospectus in
this paragraph (g) are to such documents as amended and supplemented at
the date of the letter.
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(h) The Representatives shall have received on each
Closing Date from ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, LLP, counsel for the
Company, an opinion, addressed to the Representatives and dated such
Closing Date, and stating in effect that:
(i) Each of the Company and its Subsidiaries has
been duly organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware. Each
of the Company and its Subsidiaries is duly qualified and in
good standing as a foreign corporation in each jurisdiction in
which the character or location of its assets or properties
(owned, leased or licensed) or the nature of its businesses
makes such qualification necessary, except for such
jurisdictions where the failure to so qualify individually or
in the aggregate would not have a Material Adverse Effect.
(ii) Each of the Company and its Subsidiaries has
all requisite corporate power and authority to own, lease and
license its assets and properties and conduct its business as
now being conducted and as described in the Registration
Statement and the Prospectus and, with respect to the Company,
to enter into, deliver and perform this Agreement and the
Merger Agreement and to issue and sell the Shares.
(iii) The Company has an authorized and issued
capital structure as set forth in the Registration Statement
and the Prospectus under the caption "Capitalization"; the
certificates evidencing the Shares are in due and proper legal
form and have been duly authorized for issuance by the
Company; all outstanding shares of Common Stock of the Company
have been duly and validly authorized and issued and are fully
paid and nonassessable and none of them was issued in
violation of any preemptive or other similar right. The
Shares, when issued and sold pursuant to this Agreement will
be duly and validly issued, outstanding, fully paid and
nonassessable and none of them will have been issued in
violation of any preemptive or other similar right. There are
no preemptive rights or any restrictions upon the voting or
transfer of any securities of the Company pursuant to the
Company's Certificate of Incorporation or by-laws or other
governing documents or any other instrument to which the
Company is a party or by which it may be bound. There is no
outstanding option, warrant or other right calling for the
issuance of any shares of Common Stock (other than the Shares)
or any security convertible into, exercisable for, or
exchangeable for Common Stock. The capital stock of the
Company conforms in all material respects to the descriptions
thereof contained in the Registration Statement and the
Prospectus.
(iv) The issued and outstanding shares of capital
stock of each of the Company's Subsidiaries have been duly
authorized and validly issued, are fully paid and
nonassessable and are owned directly by the Company, free and
clear of any perfected security interest or any other security
interests, liens, encumbrances, equities or claims, other than
those contained in the Registration Statement and the
Prospectus.
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(v) All necessary corporate action has been duly
and validly taken by the Company to authorize the execution,
delivery and performance of this Agreement, the Merger
Agreement and the issuance and sale of the Shares. This
Agreement and the Merger Agreement have been duly and validly
authorized, executed and delivered by the Company.
(vi) Neither the execution, delivery and
performance of this Agreement or the Merger Agreement by the
Company nor the consummation of any of the transactions
contemplated hereby or thereby (including the issuance and
sale by the Company of the Shares) will give rise to a right
to terminate or accelerate the due date of any payment due
under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or any event which with
notice or lapse of time, or both, would constitute a default)
under, or require consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance
upon any properties or assets of the Company or the
Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, note or other agreement or instrument of which
such counsel is aware and to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their properties or businesses is
bound, or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation of which such counsel is
aware or violate any provision of the charter or by-laws of
the Company or any Subsidiary.
(vii) No default exists, and no event has occurred
which with notice or lapse of time, or both, would constitute
a default in the due performance and observance of any term,
covenant or condition by the Company or the Subsidiaries of
any indenture, mortgage, deed of trust, note or any other
agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of their assets,
properties or businesses may be bound or affected, where the
consequences of such default individually or in the aggregate
would have a Material Adverse Effect.
(viii) The Company and its Subsidiaries are not in
violation of any (A) term or provision of their charter or
by-laws or (B) any franchise, license, permit, judgment,
decree, order, statute, rule or regulation (except for the
consequences of the violation of this subsection (B),
individually or in the aggregate, which would not have a
Material Adverse Effect).
(ix) No consent, approval, authorization or order
of any court or governmental agency or regulatory body is
required for the execution, delivery or performance of this
Agreement or the Merger Agreement by the Company or the
consummation of the transactions contemplated hereby, except
such as have been obtained under the Securities Act and such
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by
the several Underwriters.
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(x) There is no litigation or governmental or
other proceeding or investigation, before any court or before
or by any public body or board pending or threatened against,
or involving the assets, properties or businesses of, the
Company or its Subsidiaries which individually or in the
aggregate could have a Material Adverse Effect.
(xi) The statements in the Prospectus under the
captions "Risk Factors" "Management's Discussion and Analysis
of Financial Condition and Results of Operations,"
"Supervision and Regulation," "Management--Employment
Agreements," "Management--Stock Option Plan," "Certain
Transactions," "Description of Capital Stock," "Shares
Eligible for Future Sale" and Item 14 of the Registration
Statement, insofar as such statements constitute a summary of
documents referred to therein or matters of law, are fair
summaries in all material respects and accurately present the
information called for with respect to such documents and
matters. Accurate copies of all contracts and other documents
required to be filed as exhibits to, or described in, the
Registration Statement have been so filed with the Commission
or are fairly described in the Registration Statement, as the
case may be.
(xii) The Registration Statement, all preliminary
prospectuses and the Prospectus and each amendment or
supplement thereto (except for the financial statements and
schedules and other financial and statistical data included
therein, as to which such counsel expresses no opinion) comply
as to form in all material respects with the requirements of
the Securities Act and the Rules.
(xiii) The Registration Statement is effective
under the Securities Act, and no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or,
to such counsel's knowledge, are threatened, pending or
contemplated. Any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time
period required by such Rule 424(b).
(xiv) The Company is not an "investment company"
or an entity controlled by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as
amended.
To the extent deemed advisable by such counsel, they may rely
as to matters of fact on certificates of responsible officers of the
Company. Copies of such certificates and other opinions shall be
furnished to the Representatives and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, Bancshares, PB, representatives of the Representatives and
representatives of the independent certified public accountants of the
Company, at which conferences the contents of the Registration
Statement and the Prospectus and related matters were discussed and,
although such
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counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus (except as specified in
the foregoing opinion), on the basis of the foregoing, no facts have
come to the attention of such counsel which lead such counsel to
believe that the Registration Statement at the time it became effective
(except with respect to the financial statements and schedules and
other financial data, as to which such counsel need express no belief)
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements and
schedules and other financial data, as to which such counsel need make
no statement) on the date thereof contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(i) The Representatives shall have received on each
Closing Date from Suelthaus & ▇▇▇▇▇, P.C., counsel for Bancshares and
PB, an opinion, addressed to the Representatives and dated such Closing
Date, and stating in effect that:
(i) Each of Bancshares and PB has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Missouri. Each of
Bancshares and PB is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the
character or location of its assets or properties (owned,
leased or licensed) or the nature of its businesses makes such
qualification necessary, except for such jurisdictions where
the failure to so qualify individually or in the aggregate
would not have a Material Adverse Effect.
(ii) Each of Bancshares and PB has all requisite
corporate power and authority to own, lease and license its
assets and properties and conduct its business as now being
conducted and as described in the Registration Statement and
the Prospectus and to enter into, deliver and perform the
Merger Agreement and this Agreement.
(iii) All of the outstanding shares of capital
stock of Bancshares and PB have been duly and validly
authorized and issued and are fully paid and nonassessable and
none of them was issued in violation of any preemptive or
other similar right. There are no preemptive rights or any
restrictions upon the voting or transfer of any securities of
Bancshares or PB pursuant to Bancshare's or PB's Articles of
Incorporation or by-laws or other governing documents or any
other instrument to which either Bancshares or PB is a party
or by which it may be bound. There is no outstanding option,
warrant or other right calling for the issuance of any shares
of capital stock of Bancshares or PB.
(iv) All necessary corporate action has been duly
and validly taken by each of Bancshares and PB to authorize
the execution, delivery and performance of this Agreement and
the Merger Agreement. This Agreement and the Merger Agreement
has been duly and validly authorized, executed and delivered
by Bancshares and PB.
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(v) Neither the execution, delivery and
performance of this Agreement or the Merger Agreement by
either of Bancshares or PB nor the consummation of any of the
transactions contemplated hereby or thereby will give rise to
a right to terminate or accelerate the due date of any payment
due under, or conflict with or result in the breach of any
term or provision of, or constitute a default (or any event
which with notice or lapse of time, or both, would constitute
a default) under, or require consent or waiver under, or
result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of Bancshares or PB
pursuant to the terms of any indenture, mortgage, deed of
trust, note or other agreement or instrument of which such
counsel is aware and to which Bancshares or PB is a party or
by which Bancshares or PB or any of their properties or
businesses is bound, or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation of which
such counsel is aware or violate any provision of the charter
or by-laws of Bancshares or PB.
(vi) No default exists, and no event has occurred
which with notice or lapse of time, or both, would constitute
a default in the due performance and observance of any term,
covenant or condition by Bancshares or PB of any indenture,
mortgage, deed of trust, note or any other agreement or
instrument to which Bancshares or PB is a party or by which
any of their assets, properties or businesses may be bound or
affected, where the consequences of such default individually
or in the aggregate would have a Material Adverse Effect.
(vii) Neither Bancshares nor PB are in violation
of any (A) term or provision of their charter or by-laws or
(B) any franchise, license, permit, judgment, decree, order,
statute, rule or regulation (except for the consequences of
the violation of this subsection (B), individually or in the
aggregate, which would not have a Material Adverse Effect).
(viii) No consent, approval, authorization or order
of any court or governmental agency or regulatory body is
required for the execution, delivery or performance of this
Agreement by Bancshares or PB or the consummation of the
transactions contemplated hereby, except such as have been
obtained under the Securities Act and such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the several
Underwriters.
(ix) There is no litigation or governmental or
other proceeding or investigation, before any court or before
or by any public body or board pending or threatened against,
or involving the assets, properties or businesses of,
Bancshares or PB which individually or in the aggregate could
have a Material Adverse Effect.
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(x) The statements in the Prospectus under the
captions "Risk Factors" and "Supervision and Regulation"
insofar as such statements constitute a summary of documents
referred to therein or matters of law, are fair summaries in
all material respects and accurately present the information
called for with respect to such documents and matters.
(xi) Neither Bancshares nor PB is an "investment
company" or an entity controlled by an "investment company" as
such terms are defined in the Investment Company Act of 1940,
as amended.
To the extent deemed advisable by such counsel, they may rely
as to matters of fact on certificates of responsible officers of
Bancshares or PB. Copies of such certificates and other opinions shall
be furnished to the Representatives and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, Bancshares, PB, representatives of the Representatives and
representatives of the independent certified public accountants of the
Company, at which conferences the contents of the Registration
Statement and the Prospectus and related matters were discussed and,
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
(except as specified in the foregoing opinion), on the basis of the
foregoing, no facts have come to the attention of such counsel which
lead such counsel to believe that the Registration Statement at the
time it became effective (except with respect to the financial
statements and schedules and other financial data, as to which such
counsel need express no belief) contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
that the Prospectus as amended or supplemented (except with respect to
the financial statements and schedules and other financial data, as to
which such counsel need make no statement) on the date thereof
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(j) All proceedings taken in connection with the sale of
the Firm Shares and the Option Shares as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives
and their counsel and the Underwriters shall have received from ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP a favorable opinion, addressed to the
Representatives and dated such Closing Date, with respect to the
Shares, the Registration Statement and the Prospectus, and such other
related matters, as the Representatives may reasonably request, and the
Company shall have furnished to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters.
(k) If the Shares have been qualified for sale in
Florida, the Representatives shall have received on each Closing Date
certificates, addressed to the Representatives,
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and dated such Closing Date, of an executive officer of the Company, to
the effect that the signer of such certificate has reviewed and
understands the provisions of Section 517.075 of the Florida Statutes,
and represents that the Company has complied, and at all times will
comply, with all provisions of Section 517.075 and further, that as of
such Closing Date, neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba.
(l) The transactions contemplated by the Merger Agreement
shall have been consummated.
(m) The Representatives shall have received copies of the
Lock-Up Agreements executed by each entity or person described in
Section 4(o).
(n) The Company shall have furnished or caused to be
furnished to the Representatives such further certificates or documents
as the Representatives shall have reasonably requested.
(o) The Shares shall have been duly approved for
quotation on the Nasdaq National Market.
7. COVENANTS OF THE COMPANY.
(a) The Company covenants and agrees with each
Underwriter as follows:
(i) The Company shall prepare the Prospectus in
a form approved by the Representatives and file such
Prospectus pursuant to Rule 424(b) under the Securities Act
not later than the Commission's close of business on the
second business day following the execution and delivery of
this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Securities Act.
(ii) The Company shall promptly advise the
Representatives in writing (A) when any amendment to the
Registration Statement shall have become effective, (B) of any
request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional
information, (C) of the prevention or suspension of the use of
any preliminary prospectus or the Prospectus or of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose and (D) of
the receipt by the Company of any notification with respect to
the suspension of the qualification of the Shares for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company shall not file any
amendment of the Registration Statement or supplement to the
Prospectus unless the Company has furnished the
Representatives a copy for its review prior to filing and
shall not file any such proposed amendment or supplement to
which the Representatives reasonably
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object. The Company shall use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(iii) If, at any time when a prospectus relating
to the Shares is required to be delivered under the Securities
Act and the Rules, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the
light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement
the Prospectus to comply with the Securities Act or the Rules,
the Company promptly shall prepare and file with the
Commission, subject to the second sentence of paragraph (ii)
of this Section 7(a), an amendment or supplement which shall
correct such statement or omission or an amendment which shall
effect such compliance.
(iv) The Company shall make generally available
to its security holders and to the Representatives as soon as
practicable, but not later than 45 days after the end of the
12-month period beginning at the end of the fiscal quarter of
the Company during which the Effective Date occurs (or 90 days
if such 12-month period coincides with the Company's fiscal
year), an earnings statement (which need not be audited) of
the Company, covering such 12-month period, which shall
satisfy the provisions of Section 11(a) of the Securities Act
or Rule 158 of the Rules.
(v) The Company shall furnish to the
Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement (including
all exhibits thereto and amendments thereof) and to each other
Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof and, so long as
delivery of a prospectus by an Underwriter or dealer may be
required by the Securities Act or the Rules, as many copies of
any preliminary prospectus and the Prospectus and any
amendments thereof and supplements thereto as the
Representatives may reasonably request.
(vi) The Company shall cooperate with the
Representatives and their counsel in endeavoring to qualify
the Shares for offer and sale in connection with the offering
under the laws of such jurisdictions as the Representatives
may designate and shall maintain such qualifications in effect
so long as required for the distribution of the Shares;
provided, however, that the Company shall not be required in
connection therewith, as a condition thereof, to qualify as a
foreign corporation or to execute a general consent to service
of process in any jurisdiction or subject itself to taxation
as doing business in any jurisdiction.
(vii) Without the prior written consent of CIBC
World Markets Corp., for a period of 180 days after the date
of this Agreement, the Company shall not (A) issue, register
with the Commission (other than on Form S-8 or on any
successor form), offer, pledge, sell, contract to sell, sell
any option or contract to
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purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock or (B) enter into any swap or
other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the
Common Stock, whether any such transaction described in clause
(A) or (B) above is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to the issuance of the Shares
pursuant to the Registration Statement and the issuance of
shares pursuant to the Company's stock option plan as
described in the Registration Statement and the Prospectus. In
the event that during this period, (1) any shares are issued
pursuant to the Company's stock option plan or any other
compensation plan that are exercisable during such 180 day
period or (2) any registration is effected on Form S-8 or on
any successor form relating to shares that are exercisable
during such 180 day period, the Company shall cause each such
grantee or purchaser or holder of such registered securities
to enter into a Lock-Up Agreement in the form set forth on
Schedule III hereto.
(viii) On or before completion of this offering,
the Company shall make all filings required under applicable
securities laws and by the Nasdaq National Market (including
any required registration under the Exchange Act).
(ix) The Company shall file timely and accurate
reports in accordance with the provisions of Florida Statutes
Section 517.075, or any successor provision, and any
regulation promulgated thereunder, if at any time after the
Effective Date, the Company or any of its affiliates commences
engaging in business with the government of Cuba or any person
or affiliate located in Cuba.
(b) The Company agrees to pay, or reimburse if paid by
the Representatives, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated, all costs and
expenses incident to the public offering of the Shares and the
performance of the obligations of the Company under this Agreement
including those relating to: (i) the preparation, printing, filing and
distribution of the Registration Statement including all exhibits
thereto, each preliminary prospectus, the Prospectus, all amendments
and supplements to the Registration Statement and the Prospectus, and
the printing, filing and distribution of this Agreement; (ii) the
preparation and delivery of certificates for the Shares to the
Underwriters; (iii) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the various
jurisdictions referred to in Section 7(a)(vi), including the reasonable
fees and disbursements of counsel for the Underwriters in connection
with such registration and qualification and the preparation, printing,
distribution and shipment of preliminary and supplementary Blue Sky
memoranda; (iv) the furnishing (including costs of shipping and
mailing) to the Representatives and to the Underwriters of copies of
each preliminary prospectus, the Prospectus and all amendments or
supplements to the Prospectus, and of the several documents required by
this Section to be so furnished, as may be reasonably requested for
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use in connection with the offering and sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold; (v) the filing
fees of the NASD in connection with its review of the terms of the
public offering and reasonable fees and disbursements of counsel for
the Underwriters in connection with such review; (vi) inclusion of the
Shares for quotation on the Nasdaq National Market; and (vii) all
transfer taxes, if any, with respect to the sale and delivery of the
Shares by the Company to the Underwriters. Subject to the provisions of
Section 7(d) and Section 10, the Underwriters agree to pay, whether or
not the transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses incident to the
performance of the obligations of the Underwriters under this Agreement
not payable by the Company pursuant to the preceding sentence,
including the fees and disbursements of counsel for the Underwriters.
8. INDEMNIFICATION.
(a) The Company, Bancshares and PB agree, jointly and
severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages and liabilities, joint or
several (including any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to which
they, or any of them, may become subject under the Securities Act, the
Exchange Act or other Federal or state law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment thereof
or supplement thereto, or arise out of or are based upon any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that such indemnity shall not inure to
the benefit of any Underwriter (or any person controlling such
Underwriter) on account of any losses, claims, damages or liabilities
arising from the sale of the Shares to any person by such Underwriter
if such untrue statement or omission or alleged untrue statement or
omission was made in such preliminary prospectus, the Registration
Statement or the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with information furnished in writing
to the Company, Bancshares or PB by the Representatives on behalf of
any Underwriter specifically for use therein.
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, Bancshares and PB and each
person, if any, who controls the Company, Bancshares or PB within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each director of the Company, and each officer of the
Company who signs the Registration Statement, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only
insofar as such losses, claims, damages or liabilities arise out of or
are based upon any untrue statement or omission or alleged untrue
statement or omission with respect to such Underwriter which was made
in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment thereof or supplement thereto, contained
in the following paragraphs
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appearing under the caption "Underwriting" in the Prospectus: (i) the
fourth full paragraph, concerning the terms of the offering; and (ii)
the eleventh full paragraph, including the text set forth in the bullet
points, concerning stabilization and syndicate covering transactions.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against an indemnifying party or
parties under this Section, notify each such indemnifying party of the
commencement of such action, suit or proceeding, enclosing a copy of
all papers served. No indemnification provided for in Section 8(a) or
8(b) shall be available to any party who shall fail to give notice as
provided in this Section 8(c) if the party to whom notice was not given
was unaware of the proceeding to which such notice would have related
and was prejudiced by the failure to give such notice, but the omission
so to notify such indemnifying party of any such action, suit or
proceeding shall not relieve it from any liability that it may have to
any indemnified party for contribution or otherwise than under this
Section. In case any such action, suit or proceeding shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and
the approval by the indemnified party of such counsel, the indemnifying
party shall not be liable to such indemnified party for any legal or
other expenses, except as provided below and except for the reasonable
costs of investigation subsequently incurred by such indemnified party
in connection with the defense thereof. The indemnified party shall
have the right to employ its counsel in any such action, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such
indemnified party has been authorized in writing by the indemnifying
parties, (ii) the indemnified party shall have been advised by counsel
that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying
party (in which case the indemnifying parties shall not have the right
to direct the defense of such action on behalf of the indemnified
party) or (iii) the indemnifying parties shall not have employed
counsel to assume the defense of such action within a reasonable time
after notice of the commencement thereof, in each of which cases the
fees and expenses of counsel shall be at the expense of the
indemnifying parties. An indemnifying party shall not be liable for any
settlement of any action, suit, proceeding or claim effected without
its written consent.
9. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 8(a) or 8(b) for any reason is held to be unavailable to or insufficient
to hold harmless an indemnified party under Section 8(a) or 8(b), then each
indemnifying party shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting any contribution
received by any person entitled hereunder to
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contribution from any person who may be liable for contribution) to which the
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares or, if such allocation
is not permitted by applicable law or indemnification is not available as a
result of the indemnifying party not having received notice as provided in
Section 8 hereof, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of underwriting discounts but before deducting expenses) received by the
Company, as set forth in the table on the cover page of the Prospectus, bear to
(y) the underwriting discounts received by the Underwriters, as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company or
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact related to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 9, (i) in no case shall any Underwriter (except
as may be provided in the Agreement Among Underwriters) be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder; and (ii) the Company shall be liable
and responsible for any amount in excess of such underwriting discount;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person, if any, who controls the Company within
the meaning of the Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) in the
immediately preceding sentence of this Section 9. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section,
notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be sought
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
Section. No party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written consent. The Underwriter's
obligations to contribute pursuant to this Section 9 are several in proportion
to their respective underwriting commitments and not joint.
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10. TERMINATION. This Agreement may be terminated with respect to
the Shares to be purchased on a Closing Date by the Representatives by notifying
the Company at any time:
(a) in the absolute discretion of the Representatives at
or before any Closing Date: (i) if on or prior to such date, any
domestic or international event or act or occurrence has materially
disrupted, or in the opinion of the Representatives will in the future
materially disrupt, the securities markets; (ii) if there has occurred
any new outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the
Representatives, inadvisable to proceed with the offering; (iii) if
there shall be such a material adverse change in general financial,
political or economic conditions or the effect of international
conditions on the financial markets in the United States is such as to
make it, in the judgment of the Representatives, inadvisable or
impracticable to market the Shares; (iv) if trading in the Shares has
been suspended by the Commission or trading generally on the New York
Stock Exchange, Inc., on the American Stock Exchange, Inc. or the
Nasdaq National Market has been suspended or limited, or minimum or
maximum ranges for prices for securities shall have been fixed, or
maximum ranges for prices for securities have been required, by said
exchanges or by order of the Commission, the NASD or any other
governmental or regulatory authority; (v) if a banking moratorium has
been declared by any state or Federal authority; or (vi) if, in the
judgment of the Representatives, there has occurred a Material Adverse
Effect; or
(b) at or before any Closing Date, that any of the
conditions specified in Section 6 shall not have been fulfilled when
and as required by this Agreement.
If this Agreement is terminated pursuant to any of its provisions,
neither the Company, Bancshares nor PB, shall be under any liability to any
Underwriter, and no Underwriter shall be under any liability to the Company,
Bancshares or PB, except that (y) if this Agreement is terminated by the
Representatives or the Underwriters because of any failure, refusal or inability
on the part of the Company, Bancshares or PB to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company, Bancshares or PB
will reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) incurred by them in
connection with the proposed purchase and sale of the Shares or in contemplation
of performing their obligations hereunder and (z) no Underwriter who shall have
failed or refused to purchase the Shares agreed to be purchased by it under this
Agreement, without some reason sufficient hereunder to justify cancellation or
termination of its obligations under this Agreement, shall be relieved of
liability to the Company, Bancshares or PB or to the other Underwriters for
damages occasioned by its failure or refusal.
11. SUBSTITUTION OF UNDERWRITERS. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 10) to purchase on
any Closing Date the Shares agreed to be purchased on such Closing Date by such
Underwriter or Underwriters, the Representatives may find one or more substitute
underwriters to purchase such Shares or make such other arrangements as the
Representatives may deem advisable or one or more of the remaining Underwriters
may agree to purchase such Shares in such proportions as may be approved by the
Representatives, in each
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case upon the terms set forth in this Agreement. If no such arrangements have
been made by the close of business on the business day following such Closing
Date,
(a) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall not exceed 10% of
the Shares that all the Underwriters are obligated to purchase on such
Closing Date, then each of the nondefaulting Underwriters shall be
obligated to purchase such Shares on the terms herein set forth in
proportion to their respective obligations hereunder; provided, that in
no event shall the maximum number of Shares that any Underwriter has
agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 11 by more than one-ninth of such number of Shares without the
written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall exceed 10% of the
Shares that all the Underwriters are obligated to purchase on such
Closing Date, then the Company shall be entitled to one additional
business day within which it may, but is not obligated to, find one or
more substitute underwriters reasonably satisfactory to the
Representatives to purchase such Shares upon the terms set forth in
this Agreement.
In any such case, either the Representatives or the Company shall have
the right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company and without liability
on the part of the Company, except in both cases as provided in Sections 7(b),
8, 9 and 10. The provisions of this Section shall not in any way affect the
liability of any defaulting Underwriter to the Company or the nondefaulting
Underwriters arising out of such default. A substitute underwriter hereunder
shall become an Underwriter for all purposes of this Agreement.
12. MISCELLANEOUS. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers,
Bancshares, PB and of the Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter, the Company, Bancshares, PB or any of
the officers, directors or controlling persons referred to in Sections 8 and 9
hereof, and shall survive delivery of and payment for the Shares. The provisions
of Sections 7(b), 8, 9 and 10 shall survive the termination or cancellation of
this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company, Bancshares and PB and their respective successors and
assigns, and, to the extent expressed herein, for the benefit of persons
controlling any of the Underwriters or the Company, and
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34
directors and officers of the Company, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser of Shares from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed
or delivered or by telephone or telegraph if subsequently confirmed in writing,
(a) if to the Underwriters, c/o CIBC World Markets Corp., CIBC ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and (b) if to the Company, to its
agent for service as such agent's address appears on the cover page of the
Registration Statement with a copy to ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, Suite
3100, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and (c) if to Bancshares or PB, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, with a copy to Suelthaus & ▇▇▇▇▇,
P.C., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflict of
laws.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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35
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
RIVA BANCSHARES, INC.
By:
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
PREMIER BANCSHARES, INC.
By:
-------------------------------------------
Name:
Title:
PREMIER BANK
By:
-------------------------------------------
Name:
Title:
Confirmed:
CIBC WORLD MARKETS CORP.
▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL & RESEARCH INCORPORATED
▇▇▇▇▇▇ INTERNATIONAL LIMITED
Acting severally on behalf of itself and as representative of the several
Underwriters named in Schedule I annexed hereto.
By CIBC WORLD MARKETS CORP.
By:
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
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36
SCHEDULE I
NUMBER OF FIRM
UNDERWRITER SHARES
---------------------------------------------------------- --------------
CIBC World Markets Corp....................................
▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital & Research Incorporated..............
▇▇▇▇▇▇ International Limited...............................
[Others]...................................................
[Others]...................................................
[Others]...................................................
Total.................................................. 3,000,000
=========
37
SCHEDULE II
SUBSIDIARIES OF THE COMPANY
38
SCHEDULE III
[FORM OF LOCK-UP AGREEMENT FOR OFFICERS, DIRECTORS
AND 1% SHAREHOLDERS]
, 1999
---------- --
CIBC World Markets Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital & Research Incorporated
▇▇▇▇▇▇ International Limited
c/o CIBC World Markets Corp.
CIBC ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned understands that CIBC World Markets Corp. ("CIBC")
▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital & Research Incorporated ("Pauli") and ▇▇▇▇▇▇ International
Limited ("▇▇▇▇▇▇") (collectively, the "Underwriters") propose to enter into an
Underwriting Agreement (the "Underwriting Agreement") with Riva Bancshares,
Inc., a Delaware corporation (the "Company"), Premier Bancshares, Inc., a
Missouri corporation, and Premier Bank, a Missouri corporation, providing for
the public offering (the "Public Offering") by the several Underwriters,
including CIBC, Pauli and ▇▇▇▇▇▇ (the "Underwriters"), of 3,000,000 shares (the
"Shares") of the Common Stock, $0.01 par value, of the Company (the "Common
Stock").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of CIBC on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the final prospectus relating
to the Public Offering, (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (2) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise.
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39
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-------------------------
(Name)
-------------------------
-------------------------
(Address)
III-2