NCBE CAPITAL TRUST I
(A DELAWARE BUSINESS TRUST)
___% CUMULATIVE TRUST PREFERRED SECURITIES
UNDERWRITING AGREEMENT
DATED: MARCH ___, 1998
NCBE CAPITAL TRUST I
___% CUMULATIVE TRUST PREFERRED SECURITIES
UNDERWRITING AGREEMENT
March ___, 1998
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, INC.
NATCITY INVESTMENTS, INC.
▇/▇ ▇.▇.▇. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
NCBE Capital Trust I (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12 of the Delaware Business Code, 12 Del. C. Section 3801 et
seq.), and National City Bancshares, Inc., an Indiana corporation (the
"Company", and together with the Trust, the "Offerors"), as depositor of the
Trust and as guarantor, propose, upon the terms and subject to the conditions
set forth herein, to issue and sell 1,200,000 of the Trust's ___% Cumulative
Trust Preferred Securities (with a liquidation amount equal to $25 per Preferred
Security) to J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. and NatCity Investments, Inc.
(collectively, the "Underwriters"), severally and not jointly, in the respective
amounts set forth on Schedule A hereto (the "Firm Preferred Securities") and, at
the election of the Underwriters, up to an additional 180,000 shares of such
securities (the "Option Preferred Securities") solely to cover over-allotments,
if any. The Firm Preferred Securities and the Option Preferred Securities are
herein collectively referred to as the "Preferred Securities."
The Preferred Securities and the Common Securities (as defined herein)
are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement, to be dated as of March ___, 1998 (the "Trust Agreement"), among
the Company, as depositor, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇., as administrative trustees (the "Administrative Trustees"),
Wilmington Trust Company (the "Trust Company"), as property trustee (the
"Property Trustee"), and Wilmington Trust Company, as Delaware trustee (the
"Delaware Trustee" and, together with the Property Trustee and the
Administrative Trustees, the "Trustees"), and the holders from time to time
of undivided beneficial interests in the assets of the Trust. The Preferred
Securities will be guaranteed by the Company on a subordinated basis and
subject to certain limitations with respect to distributions and payments
upon liquidation, redemption or otherwise (the "Guarantee") pursuant to a
Guarantee Agreement, to be dated as of March ___, 1998 (the
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"Guarantee Agreement"), between the Company and the Trust Company, as
trustee (the "Guarantee Trustee"). The assets of the Trust will consist of ___%
Subordinated Debentures, due March 31, 2028 (the "Subordinated Debentures"), of
the Company which will be issued under an Indenture, to be dated as of March __,
1998 (the "Indenture"), between the Company and the Trust Company, as indenture
trustee (the "Indenture Trustee"). Under certain circumstances, the
Subordinated Debentures will be distributable to the holders of undivided
beneficial interests in the assets of the Trust.
Section 1. REPRESENTATIONS AND WARRANTIES OF THE OFFERORS. The Offerors
jointly and severally represent and warrant to and agree with each of the
Underwriters that:
(a) The Company and the Trust have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Nos. 333-_____ and 333-_____-01) and a related preliminary prospectus for
the registration of (i) the Preferred Securities, (ii) the Guarantee, and
(iii) the Subordinated Debentures under the Securities Act of 1933, as
amended (the "1933 Act"), and the applicable rules and regulations
thereunder (the "1933 Act Regulations"). The Company and the Trust have
prepared and filed such amendments thereto, if any, and such amended
preliminary prospectuses, if any, as may have been required to the date
hereof, and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. The registration statement has
been declared effective under the 1933 Act by the Commission, and no stop
order suspending the effectiveness of the registration statement has been
issued and no proceeding for that purpose has been instituted or, to the
knowledge of the Offerors, threatened by the Commission. The term
"Registration Statement" as used in this Agreement shall mean such
registration statement at the time such registration statement became
effective (the "Effective Time") including any prospectus included with
such Registration Statement, each document incorporated therein by
reference and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Time (as hereinafter defined), shall also
mean such registration statement as so amended; provided, however, that
such term shall also include all Rule 430A Information deemed to be
included in such registration statement at the time such registration
statement becomes effective as provided by Rule 430A of the 1933 Act
Regulations. The term "Preliminary Prospectus" shall mean any preliminary
prospectus included in the Registration Statement at the Effective Time and
each document incorporated therein by reference. The term "Prospectus" as
used in this Agreement shall mean the final prospectus relating to the
Preferred Securities in the form in which it is filed with the Commission
after the date hereof
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pursuant to Rule 424(b) of the 1933 Act Regulations and each document
incorporated therein by reference. The term "Rule 430A Information"
means information with respect to the Preferred Securities and the
offering thereof permitted pursuant to Rule 430A of the 1933 Act
Regulations to be omitted from the Registration Statement when it became
effective.
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and no proceedings for that
purpose have been instituted or threatened by the Commission or the state
securities or blue sky authority of any jurisdiction, and each Preliminary
Prospectus and any amendment or supplement thereto, at the time of filing
thereof, conformed in all material respects to the requirements of the 1933
Act and the 1933 Act Regulations, and did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Offerors by an Underwriter
expressly for use in the Registration Statement.
(c) When the Prospectus is first filed pursuant to Rule 424(b) of the
1933 Act Regulations, when any amendment to the Registration Statement
becomes effective, when any amendment or supplement to the Prospectus is
filed with the Commission and at the Closing Time and Date of Delivery (as
hereinafter defined), (i) the Registration Statement, the Prospectus and
any amendments thereof and supplements thereto will conform in all material
respects with the applicable requirements of the 1933 Act and the 1933 Act
Regulations, and (ii) neither the Registration Statement, the Prospectus
nor any amendment or supplement thereto will contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to (A) that part of the Registration Statement that constitutes
the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "1939 Act") of the Property Trustee,
the Indenture Trustee and the Guarantee Trustee, and (B) any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Offerors by an Underwriter expressly
authorizing its use in the Registration Statement.
(d) Each document incorporated by reference in the Registration
Statement (an "Incorporated Document"), as of the
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date such Incorporated Document was filed with the Commission, conformed
in all material respects to the requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission thereunder, and when read together with
the other information in the Preliminary Prospectus or Prospectus (as
applicable), as of the date hereof and at the Closing Time, did not and
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act
and the rules and regulations thereunder and when read together with the
other information in the Prospectus, as of the date hereof and at the
Closing Time, did not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(e) The conditions for the use by the Company and the Trust of a
registration statement on Form S-3 set forth in the General Instructions to
Form S-3 have been satisfied and the Company and the Trust are entitled to
use such form for the transactions contemplated herein.
(f) The Company has been duly incorporated and is validly existing as
a corporation under the laws of the state of Indiana with all requisite
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus. The Company is qualified to transact business as a foreign
corporation and is in good standing in each of the jurisdictions in which
the ownership or leasing of its properties or the nature or conduct of its
business requires such qualification, except where the failure to do so
would not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the
Company and its subsidiaries taken as a whole. The Company is duly
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended.
(g) The subsidiaries of the Company that are engaged in the banking
business, savings and loan business or trust business are listed on
Schedule B hereto (the "Principal Subsidiaries"). Each of the Principal
Subsidiaries is duly organized and validly existing and, where applicable,
in good standing under the laws of the jurisdiction of its organization
with all requisite power and authority to own,
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lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus. Each of the
Principal Subsidiaries is authorized to transact business in each of the
jurisdictions in which the ownership or leasing of its properties or the
nature of or conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the condition (financial or other), business, properties, net
worth or results of operations of the Company and its subsidiaries taken
as a whole. All of the issued and outstanding shares of capital stock
of each Principal Subsidiary have been duly authorized and validly
issued, and are fully paid and non-assessable and are owned by the
Company free and clear of any security interest, pledge, lien or other
encumbrance.
(h) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized by the Company and, upon execution and delivery
thereof by the Company, and assuming due authorization, execution and
delivery thereof by the Indenture Trustee, the Indenture will, as of the
Closing Time, be a valid and binding agreement of the Company, enforceable
in accordance with its terms, except to the extent that enforceability may
be limited by bankruptcy, insolvency, moratorium, reorganization or other
laws of general applicability relating to or affecting creditors' rights,
or by general principles of equity whether considered at law or in equity
(the "Permitted Exceptions").
(i) The Trust Agreement has been duly qualified under the 1939 Act
and has been duly authorized by the Company and, upon execution and
delivery thereof by the Company and the Administrative Trustees, and
assuming due authorization, execution and delivery thereof by the Property
Trustee and the Delaware Trustee, the Trust Agreement will, as of the
Closing Time, be a valid and binding agreement of the Company and the
Administrative Trustees, enforceable in accordance with its terms, except
to the extent that enforceability may be limited by the Permitted
Exceptions.
(j) The Guarantee has been duly qualified under the 1939 Act and has
been duly authorized by the Company and, upon execution and delivery
thereof by the Company, the Guarantee will, as of the Closing Time, be a
valid and binding agreement of the Company, enforceable in accordance with
its terms, except to the extent that enforceability may be limited by the
Permitted Exceptions.
(k) The Subordinated Debentures have been duly authorized and, when
executed by the Company, authenticated by the Indenture Trustee, issued in
accordance with the Indenture and delivered to the Trust against payment
therefor as
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described in the Registration Statement and the Prospectus, will
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms, except to the extent that enforceability
may be limited by the Permitted Exceptions.
(l) The Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered in accordance with the terms of
this Agreement and the Trust Agreement, will be validly issued undivided
beneficial interests in the assets of the Trust, and the issuance of such
Preferred Securities will not be subject to any preemptive or similar
rights. The Common Securities to be issued to the Company have been
authorized by the Trust Agreement and, when executed in accordance with the
terms of the Trust Agreement and delivered to the Company against payment
therefor as described in the Registration Statement and the Prospectus,
will represent validly issued undivided beneficial interests in the assets
of the Trust.
(m) This Agreement has been duly authorized, executed and delivered
by each of the Offerors and constitutes a valid and binding agreement of
each of them, enforceable in accordance with its terms, except to the
extent that enforceability may be limited by the Permitted Exceptions and
except to the extent enforcement of the indemnification or contribution
provisions set forth in Section 6 of this Agreement may be limited by
federal or state securities laws or the public policy underlying such laws.
(n) No authorization, approval, consent or order of, or any filing or
declaration with, any court or governmental authority or agency is
necessary in connection with the issuance and sale of the Common Securities
or the offering of the Preferred Securities, the Subordinated Debentures or
the Guarantee hereunder or the consummation of the transactions
contemplated hereby, except as may have been obtained under the 1933 Act
and the 1933 Act Regulations, the 1939 Act and the rules and regulations
thereunder, such as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the purchase and
distribution by the Underwriters of the Preferred Securities, such as may
be required from the Nasdaq National Market relating to the listing of the
Preferred Securities and such as may be required under state securities
laws.
(o) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, there has been no material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of the Trust
or the Company
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and its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business.
(p) The Company's obligations under the Guarantee Agreement are
subordinate and junior in right of payment to the extent set forth therein.
(q) The Subordinated Debentures are subordinated and junior in right
of payment as and to the extent set forth in the Indenture.
(r) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and compliance by the
Company with its obligations hereunder will not conflict with or constitute
a breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of the Principal Subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of the Principal Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any of the Principal Subsidiaries is subject (except for
conflicts, breaches and defaults which would not, individually or in the
aggregate, be materially adverse to the Company and its subsidiaries taken
as a whole or materially adverse to the transactions contemplated by this
Agreement), nor will such action result in any material violation of the
provisions of the articles of incorporation or by-laws of the Company or
any Principal Subsidiary, or any applicable law, administrative regulation
or administrative or court decree.
(s) Except as disclosed in the Prospectus, there is no action, suit
or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the best knowledge of the
Offerors, threatened, against or affecting the Company, any Principal
Subsidiary or the Trust that is required to be disclosed in the Prospectus,
other than actions, suits or proceedings that are not reasonably expected,
individually or in the aggregate, to have a material adverse effect on the
condition, financial or otherwise, or in the earnings or business affairs
of the Trust or the Company and its subsidiaries, taken as a whole, whether
or not arising in the ordinary course of business.
(t) The Trust possesses adequate certificates, authorities or permits
issued by the appropriate state, federal or local regulatory agencies or
bodies to conduct the business now operated by it, and the Trust has not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit
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which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding would materially and adversely affect the
condition, financial or otherwise, or the earnings or business affairs
of the Trust.
(u) The execution, delivery and performance of this Agreement, the
issuance and sale of the Preferred Securities and the Common Securities,
and the consummation of the transactions contemplated herein and compliance
by the Trust with its obligations hereunder have been duly authorized by
all necessary action on the part of the Trust and do not and will not
result in any violation of the Trust Agreement or Certificate of Trust and
do not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Trust under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the Trust
is a party or by which it may be bound or to which any of its properties
may be subject or (B) any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental instrumentality
or court, domestic or foreign, or any regulatory body or administrative
agency or other governmental body having jurisdiction over the Trust, or
any of its properties (except for conflicts, breaches, violations or
defaults which would not, individually or in the aggregate, be materially
adverse to the Trust, or materially adverse to the transactions
contemplated by this Agreement).
(v) The Company's authorized, issued and outstanding capital stock is
as disclosed in the Prospectus. All of the issued shares of capital stock
of the Company have been duly authorized and validly issued, are fully paid
and nonassessable and conform to the description of the Company's capital
stock contained in the Prospectus.
(w) The financial statements of the Company and its consolidated
subsidiaries included or incorporated in the Registration Statement and
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
operations and cash flows for the Company and its consolidated subsidiaries
for the periods specified, all in conformity with generally accepted
accounting principles applied on a consistent basis. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, and except as otherwise stated in the Registration
Statement and the Prospectus, there has not been (i) any material change in
the capital stock, long-term debt, obligations under capital lease, or
short-term borrowings of the Company or the Principal Subsidiaries, or (ii)
any
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material adverse change, or any development which could reasonably be
seen as involving a prospective material adverse change, in or affecting
the business, prospects, properties, assets, results of operations or
condition (financial or other) of the Company and its subsidiaries taken as
a whole, other than developments, if any, generally affecting the banking
business in the United States.
(x) McGladrey & ▇▇▇▇▇▇, LLP, who have examined and are reporting upon
the audited financial statements and schedules incorporated by reference in
the Registration Statement, are, and were during the periods covered by
their reports incorporated by reference in the Registration Statement and
the Prospectus, independent public accountants with respect to the Company
within the meaning of the 1933 Act and the 1933 Act Regulations.
(y) There are no contracts, agreements or other documents required to
be filed as exhibits to the Registration Statement by the 1933 Act, the
1933 Act Regulations or the 1939 Act (or any rules or regulations
thereunder) which have not been filed as exhibits to, or incorporated by
reference in, the Registration Statement as required.
(z) Each of the Company's and the Principal Subsidiaries' respective
systems of internal accounting controls taken as a whole is sufficient to
meet the broad objectives of internal accounting control insofar as those
objectives pertain to the prevention or detection of errors or
irregularities in amounts that would be material in relation to the
Company's or the Principal Subsidiaries' financial statements; and none of
the Company, the Principal Subsidiaries, or any employee or agent thereof,
has made any payment of funds of the Company or the Principal Subsidiaries,
or received or retained any funds and no funds of the Company or the
Principal Subsidiaries have been set aside to be used for any payment, in
each case in violation of any law, rule or regulation.
(aa) Neither of the Offerors is, and upon the issuance and sale of the
Preferred Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus neither will be, an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
Section 2. SALE AND DELIVERY OF THE PREFERRED SECURITIES TO THE
UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions
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herein set forth, the Trust agrees to issue and sell to each of the
Underwriters the Firm Preferred Securities, and each Underwriter agrees,
severally and not jointly, to purchase from the Trust the number of Firm
Preferred Securities set forth opposite the name of such Underwriter in
Schedule A, at a price per Preferred Security of $25. In the event and
to the extent that the Underwriters shall exercise the election to
purchase Option Preferred Securities as provided below, the Trust agrees
to issue and sell to the Underwriters, and the Underwriters agree to
purchase from the Trust, at the same purchase price per Preferred
Security set forth in the first sentence of this Section 2, the number
of Option Preferred Securities as to which such election shall have been
exercised. If the option is exercised as to all or any portion of the
Option Preferred Securities, the Option Preferred Securities as to which
the option is exercised shall be purchased by the Underwriters,
severally and not jointly, in proportion to their purchases of the Firm
Preferred Securities.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Preferred
Securities will be used by the Trust to purchase the Subordinated
Debentures of the Company, the Company hereby agrees to pay at the Closing
Time and the Date of Delivery, if applicable, to J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, Inc., for the accounts of the several Underwriters, an amount equal
to $0.875 per Preferred Security for the Preferred Securities to be
delivered at the Closing Time and on the Date of Delivery, respectively.
(b) In addition, on the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth,
the Trust hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional 180,000 Option Preferred
Securities at the same purchase price as shall be applicable to the Firm
Preferred Securities. The option hereby granted will expire if not
exercised within the thirty (30) day period after the date of the
Prospectus by giving written notice to the Trust. The option granted
hereby may be exercised in whole or in part (but not more than once), only
for the purpose of covering over-allotments that may be made in connection
with the offering and distribution of the Firm Preferred Securities. The
notice of exercise shall set forth the number of Option Preferred
Securities as to which the several Underwriters are exercising the option,
and the time and date of payment and delivery thereof. Such time and date
of delivery (the "Date of Delivery") shall be determined by you but shall
not be later than three full business days after the exercise of such
option, nor in any event prior to the Closing Time. If the option is
exercised as to all or any portion of the Option
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Preferred Securities, the Option Preferred Securities as to which the
option is exercised shall be purchased by the Underwriters, severally
and not jointly, in proportion to their purchases of the Firm Preferred
Securities.
(c) Payment of the purchase price for and delivery of certificates in
definitive form representing the Firm Preferred Securities shall be made at
the offices of J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon
by the Company, the Trust and you, at 10:00 a.m., either (i) on the third
full business day after the execution of this Agreement, or (ii) at such
other time not more than ten full business days thereafter as you, the
Company and the Trust shall determine (unless, in either case, postponed
pursuant to the terms hereof) (such date and time of payment and delivery
being herein called the "Closing Time"). In addition, in the event that
any or all of the Option Preferred Securities are purchased by the
Underwriters, payment of the purchase price for and delivery of
certificates in definitive form representing the Option Preferred
Securities shall be made at the offices of J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇,
Inc. in the manner set forth above, or at such other place as the Company,
the Trust and you shall determine, on the Date of Delivery as specified in
the notice from you to the Trust. Payment for the Firm Preferred
Securities and the Option Preferred Securities shall be made to the Trust
by wire transfer in same-day funds to the accounts designated to the
Underwriters in writing by the Trust against delivery to you for the
respective accounts of the Underwriters of the Preferred Securities to be
purchased by them.
At the Closing Time and the Date of Delivery, if applicable, the
Company will pay, or cause to be paid, the commission payable at such
time to the Underwriters under this Section 2 hereof by wire transfer in
same-day funds to the account or accounts designated to the Company in
writing by J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc., on behalf of the several
Underwriters.
(d) The Preferred Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global Preferred
Securities in book entry form which will be deposited by or on behalf of
the Trust with The Depository Trust Company ("DTC") or its designated
custodian. The Trust will deliver the Preferred Securities to J.J.B.
▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. for the account of each Underwriter, against
payment to the Trust as provided in paragraph (c) of this Section 2.
(e) You intend to offer the Preferred Securities to the public as set
forth in the Prospectus, but after the initial
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public offering of such Preferred Securities you may in your discretion
vary the public offering price.
Section 3. CERTAIN COVENANTS OF THE COMPANY AND THE TRUST. The Company
and the Trust covenant and agree with each Underwriter as follows:
(a) The Trust and the Company will prepare the Prospectus in a form
approved by the Underwriters, will comply with the requirements of Rule
430A and will file such Prospectus with the Commission pursuant to Rule
424(b) not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement. The
Trust and the Company will notify the Underwriters immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall have become effective and of the filing of the
Prospectus pursuant to Rule 424(b), (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Preferred Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for
such purpose. The Trust and the Company will make every reasonable effort
to prevent the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification and, if any such order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) The Trust and the Company will deliver to the Underwriters one
manually executed copy of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by reference
into the Prospectus), such number of conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including
documents incorporated by reference into the Prospectus but without
exhibits) as such Underwriters may reasonably request and copies of each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus.
(c) The Trust and the Company will furnish to the Underwriters, from
time to time during the period when the Prospectus is required to be
delivered under the 1933 Act, such additional number of copies of the
Prospectus (as amended
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or supplemented, if applicable) as they may reasonably request for the
purposes contemplated by the 1933 Act or the 1933 Act Regulations.
(d) The Trust and the Company will deliver to the Underwriters notice
of their intention to prepare or file any amendment to the Registration
Statement (including any Post-effective amendment) or any amendment or
supplement to the Prospectus which the Trust and the Company propose for
use by the Underwriters in connection with the offering of the Preferred
Securities and which differs from the prospectus on file at the Commission
at the time the Registration Statement became effective, whether or not
such revised prospectus is required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations, will furnish the Underwriters and counsel for the
Underwriters with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file any such amendment or supplement or use any such
prospectus to which the Underwriters or counsel for the Underwriters shall
reasonably object.
(e) If any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus (as then amended or supplemented) in
order to ensure that the Prospectus does not contain an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or it is necessary to amend or supplement the
Prospectus to comply with the 1933 Act or any other law, the Company and
the Trust will forthwith prepare and furnish, at the Company's expense, to
the Underwriters, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances under which they were made, be
misleading or so that the Prospectus will comply with the 1933 Act or such
other law, as the case may be.
(f) The Trust and the Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13,
14, or 15 of the Exchange Act.
(g) The Company and the Trust will use their respective best efforts
to qualify the Preferred Securities for offer and sale under the securities
or blue sky laws of such jurisdictions as any Underwriter shall reasonably
request and to pay all reasonable expenses (including reasonable fees and
disbursements of counsel) in connection with such qualification and the
printing of any memoranda concerning the
-13-
aforesaid qualification; provided however, that neither Offeror shall
be required to qualify to do business in any jurisdiction where it is
not now qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where they
are not now subject.
(h) During the period beginning on the date hereof and continuing to
and including the Date of Delivery, the Company and the Trust will not
offer, sell, contract to sell or otherwise dispose of (other than in an
offering made exclusively outside the United States) any securities of the
Company or the Trust substantially similar to the Preferred Securities or
any securities convertible into or exchangeable for the Preferred
Securities without the prior written consent of the Underwriters.
(i) During the period when the Preferred Securities are outstanding,
the Company will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the 1940 Act.
(j) Neither the Company nor the Trust shall enter into any
contractual agreement with respect to the distribution of the Preferred
Securities except for the arrangements with the Underwriters.
(k) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later
than 90 days after the close of the period covered thereby, an "earnings
statement" (which need not be audited) complying with the provisions of
Rule 158 of the 1933 Act Regulations and covering a period of at least 12
consecutive months beginning on the first day of the Company's first full
fiscal quarter after the effective date (as defined in Rule 158) of the
Registration Statement.
(l) The Company and the Trust will use proceeds received from the
sale of the Preferred Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(m) For a period of five years after the Closing Time the Company
will furnish to the Underwriters copies of all reports and communications
delivered to the Company's shareholders or to holders of the Preferred
Securities and will also furnish copies of all reports (excluding exhibits)
filed with the Commission on Forms 8-K, 10-Q and 10-K and all other reports
and information furnished to its shareholders generally, not later than the
time such reports are first furnished to its shareholders generally.
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Section 4. PAYMENT OF EXPENSES. The Company will pay and bear all costs,
fees and expenses incident to the performance of the Offerors obligations under
this Agreement (excluding fees and expenses of counsel for the Underwriters,
except as specifically set forth below), including (a) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits), as originally filed and as amended, the Preliminary Prospectuses, the
Prospectus and any amendments or supplements thereto, and the cost of furnishing
copies thereof to the Underwriters, (b) the preparation, printing and
distribution of this Agreement, the Indenture, the Guarantee Agreement, the
Trust Agreement, the certificates representing the Preferred Securities, the
Blue Sky Memoranda and any instruments or documents relating to any of the
foregoing, (c) the issuance and delivery of the Preferred Securities to the
Underwriters, including any transfer taxes payable upon the sale of the
Preferred Securities to the Underwriters (other than transfer taxes on resales
by the Underwriters), (d) the fees and disbursements of the Company's and the
Trust's counsel and accountants, (e) the qualification of the Preferred
Securities, the Subordinated Debentures and the Guarantee under the applicable
securities laws in accordance with the terms of this Agreement, including filing
fees and fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the Blue Sky Memoranda, (f) all costs, fees and
expenses in connection with the listing of the Preferred Securities on the
Nasdaq Stock Market, (g) filing fees relating to review of the offering by the
NASD, (h) the transfer agent's and registrar's fees and all miscellaneous
expenses referred to in Part II of the Registration Statement, (i) costs related
to travel and lodging incurred by the Company and its representatives relating
to meetings with and presentations to prospective purchasers of the Preferred
Securities reasonably determined by the Underwriters to be necessary or
desirable to effect the sale of the Preferred Securities to the public, (j) the
fees and expenses of the Indenture Trustee, the Guarantee Trustee and the
Trustees, including the fees and disbursements of counsel for any such Trustees,
(k) any fees payable in connection with the ratings, if any, of the Preferred
Securities and Subordinated Debentures, and (1) all other costs and expenses
incident to the performance of the Company's or the Trust's obligations
hereunder (including costs incurred in closing the purchase of the Option
Preferred Securities, if any) that are not otherwise specifically provided for
in this section. The Company, upon your request, will provide funds in advance
for filing fees in connection with "blue sky" qualifications.
If the sale of the Preferred Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied, because of any termination pursuant
to Section 8 hereof or because of any refusal, inability or failure on the part
of the Company or the Trust to perform any agreement herein or comply with any
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provision hereof other than by reason of default by any of the Underwriters, the
Company will reimburse the Underwriters severally on demand for all reasonable
out-of-pocket expenses, including fees and disbursements of Underwriters'
counsel, reasonably incurred by the Underwriters in reviewing the Registration
Statement and the Prospectus, and in investigating and making preparations for
the marketing of the Preferred Securities, in each case following presentation
of reasonably detailed invoices therefor.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for (i) the Firm Preferred Securities that
they have respectively agreed to purchase pursuant to this Agreement (and any
Option Preferred Securities as to which the option granted in Section 2 has been
exercised and the Date of Delivery determined by you is the same as the Closing
Time) at the Closing Time and (ii) the Option Preferred Securities at the Date
of Delivery, are subject to the accuracy of the representations and warranties
of the Offerors contained herein as of the Closing Time or the Date of Delivery,
as the case may be, and to the accuracy of the representations and warranties of
the Offerors contained in certificates of any officer of the Company or trustees
of the Trust delivered pursuant to the provisions hereof, to the performance by
the Offerors of their obligations hereunder, and to the following further
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings
for that purpose shall have been instituted or shall be pending or, to
your knowledge or the knowledge of the Offerors, shall be contemplated
by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the satisfaction
of counsel for the Underwriters. If the Company and the Trust have
elected to rely upon Rule 430A, a Prospectus containing the Rule 430A
Information have been filed with the Commission in accordance with Rule
424(b) (or it post-effective amendment providing such information shall
have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) At the Closing Time, you shall have received an opinion of ▇▇▇▇▇
& ▇▇▇▇▇▇▇, counsel for the Company and the Trust, dated as of the Closing
Time, in form and substance satisfactory to counsel for the Underwriters,
to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation under the laws of the state of Indiana with the
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is
-16-
duly registered as a banking holding company under the Bank
Holding Company Act of 1956, as amended. The Company is
qualified to transact business as a foreign corporation and is
in good standing in each of the jurisdictions in which the
ownership or leasing of the Company's properties or the nature
or conduct of its business requires such qualification, except
where the failure to do so would not have a material adverse
effect on the condition (financial or other), business.
properties, net worth or results of operations of the Company
and its subsidiaries taken as a whole.
(ii) Each of the Principal Subsidiaries is organized and validly
existing and, where applicable, in good standing under the laws
of the jurisdiction of its organization. Each such entity has
all requisite power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement and the Prospectus. Each such entity is
duly qualified to do business and is in good standing in each
other jurisdiction in which the ownership or leasing of its
properties or the nature or conduct of its business requires such
qualification, except where the failure to do so would not have a
material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the
Company and its consolidated subsidiaries taken as a whole.
(iii) The authorized capitalization of the Company is as set forth
in the Prospectus under the caption "Capitalization."
(iv) All of the issued and outstanding shares of capital stock of each
Principal Subsidiary has been duly authorized and validly issued,
and is fully paid and non-assessable, except to the extent that
the shares of The National City Bank of Evansville, The Peoples
National Bank of Grayville, The First National Bank of ▇▇▇▇▇ City
and First National Bank of Bridgeport are assessable to the
extent of impairment of capital pursuant to the National Bank
Act, 12 U.S.C. Section 55, and the Company, or a wholly-owned
subsidiary of the Company, is the sole record owner of the
outstanding capital stock of each of the Principal Subsidiaries.
(v) This Agreement has been duly authorized, executed and delivered
by the Company.
-17-
(vi) No authorization, approval, consent or order of, or filing or
declaration with, any court or governmental agency or body is
necessary for the valid authorization, issuance, sale and
delivery of the Preferred Securities, the execution, delivery and
performance of this Agreement and the consummation by the Company
of the transactions contemplated hereby, except such as have been
obtained under the 1933 Act and the 1933 Act Regulations, the
1939 Act and the rules and regulations thereunder, such as may be
required by the Nasdaq Stock Market in connection with the
listing of the Preferred Securities thereon, and such as may be
necessary under state securities laws or required by the NASD in
connection with the purchase and distribution of the Preferred
Securities by the Underwriters, as to which such counsel need
express no opinion.
(vii) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will
not conflict with or result in a breach or violation of any of
the terms and provisions of, or (with or without the giving
notice or the passage of time or both) constitute a default
under, the articles of incorporation or by-laws of the
Company, or under any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to
which the Company is a party or to which the Company or any of
its properties or other assets is subject; or, to such
counsel's knowledge, any applicable statute, judgment, decree,
order, rule or regulation of any court or governmental agency
or body; or to such counsel's knowledge, result in the
creation or imposition of any lien, charge, claim or
encumbrance upon any property or asset of the Company.
(viii) The statements set forth in the Registration Statement and the
Prospectus under the captions "Description of the Preferred
Securities," "Description of the Subordinated Debentures,"
"Description of the Guarantee" and "Relationship among the
Preferred Securities, the Subordinated Debentures and the
Guarantee," insofar as they purport to describe the provisions
of the laws and documents referred to therein, fairly
summarize the matters described therein in all material
respects.
(ix) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and
-18-
delivered by the Company and, assuming the due authorization,
execution and delivery thereof by the Indenture Trustee, is a
valid and binding agreement of the Company, enforceable in
accordance with its terms, except to the extent that
enforceability may be limited by the Permitted Exceptions.
(x) The Trust Agreement has been duly qualified under the 1939 Act
and has been duly authorized, executed and delivered by the
Company and the Administrative Trustees, and assuming due
authorization, execution and delivery thereof by the Property
Trustee and the Delaware Trustee, the Trust Agreement is a valid
and binding agreement of the Company and the Administrative
Trustees enforceable in accordance with its terms, except to the
extent that enforceability may be limited by the Permitted
Exceptions.
(xi) The Guarantee has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in
accordance with its terms, except to the extent that
enforceability may be limited by the Permitted Exceptions.
(xii) The Subordinated Debentures have been duly authorized and
executed by the Company and, when authenticated by the
Indenture Trustee, in accordance with the Indenture and
delivered to the Trust against payment therefor as described
in the Registration Statement and the Prospectus, will
constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, except to the
extent that enforceability may be limited by the Permitted
Exceptions.
(xiii) To such counsel's knowledge, there is no pending or
threatened action, suit, proceeding, inquiry or investigation
against the Company, the Principal Subsidiaries or any of
their respective officers and directors or to which the
properties, assets or rights of any such entity are subject,
before or brought by any court or governmental agency or body
or board of arbitrators, that is required to be described in
the Registration Statement or the Prospectus but is not
described as required.
(xiv) The Registration Statement has become effective under the
1933 Act and, to the knowledge of such
-19-
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for
that purpose has been instituted or is pending or contemplated
under the 1933 Act. Other than financial statements and other
financial and operating data and schedules contained therein,
as to which counsel need express no opinion, the Registration
Statement, all Preliminary Prospectuses, the Prospectus and
any amendment or supplement thereto, if any, comply as to form
in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules
and regulations thereunder.
(xv) The statements of law or legal conclusions and opinions set forth
in the Registration Statement under the caption "Certain United
States Federal Income Tax Consequences," subject to the
assumptions and conditions described therein, constitute such
counsel's opinion.
(xvi) The Trust is not an "investment company," or a company
"controlled" by an "investment company," within the meaning of
the 1940 Act.
(xvii) The descriptions in the Prospectus of statutes, regulations,
legal or governmental proceedings, insofar as such
descriptions constitute a summary of legal or regulatory
matters or proceedings, are accurate descriptions of the
matters in all material respects and present fairly a summary
of the information required to be shown under the 1933 Act and
the 1933 Act Regulations.
Such counsel shall also confirm that, in connection with the preparation of
the Registration Statement and the Prospectus, such counsel has participated in
conferences with officers and representatives of the Offerors and with their
independent public accountants and with the Underwriters and their counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed the contents of the Registration Statement and the
Prospectus and the documents incorporated therein by reference (without taking
further action to verify independently the statements made in the Registration
Statement and the Prospectus, and without assuming responsibility for the
accuracy or completeness of such statements, except to the extent expressly
provided above) and that they have no reason to believe that the Registration
Statement, or any further amendment thereto made prior to the Closing Time or
the Date of Delivery, as the case may be, on its effective date and as of the
Closing Time or the Date of Delivery, as the case may be, contained or
contains any untrue statement of a material fact or omitted or omits to
-20-
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus, or any
amendment or supplement thereto made prior to the Closing Time or the Date of
Delivery, as the case may be, as of its issue date and as of the Closing Time
or the Date of Delivery, as the case may be, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided that such
counsel need express no belief regarding the financial statements and related
schedules and other financial data contained in the Registration Statement,
any amendment thereto, or the Prospectus, or any amendment or supplement
thereto).
In rendering the opinions set forth in Section 5(b), such counsel may rely
on the following:
(A) as to matters involving the application of laws other than the
laws of the United States and jurisdictions in which they are
admitted, to the extent such counsel deems proper and to the
extent specified in such opinion, upon an opinion or opinions (in
form and substance reasonably satisfactory to Underwriters'
counsel) of other counsel familiar with the applicable laws, and
(B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and
certificates or other written statements of officers or
departments of various jurisdictions, having custody of documents
respecting the existence or good standing of the Company provided
that copies of all such opinions, statements or certificates
shall be delivered to Underwriters' counsel. The opinion of
counsel for the Company shall state that the opinion of any other
counsel, or certificate or written statement, on which such
counsel is relying is in form satisfactory to such counsel and
that you and they are justified in relying thereon.
(c) At the Closing Time, you shall have received an opinion from
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated as of the Closing
Time, with respect to the issuance and sale of the Preferred Securities,
the Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have furnished
to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass on such matters.
(d) At the Closing Time, you shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware
-21-
counsel to the Offerors, dated as of the Closing Time, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act; all filings
required under the laws of the State of Delaware with respect to
the formation and valid existence of the Trust as a business
trust have been made.
(ii) Under the Delaware Act and the Trust Agreement, the Trust has all
the trust power and authority to own property and to conduct its
business, all as described in the Registration Statement and the
Prospectus, and to enter into and perform its obligations under
this Agreement, the Preferred Securities and the Common
Securities.
(iii) Assuming due authorization, execution and delivery by the
Company and the Trustees, the Trust Agreement constitutes a
valid and binding obligation of the Company, and is
enforceable against the Company in accordance with its
terms, except as enforceability thereof may be limited by
(A) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (B) principles
of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (C) the effect of
applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(iv) The Common Securities have been duly authorized by the Trust
Agreement and are validly issued and represent undivided
beneficial interests in the assets of the Trust.
(v) The Preferred Securities have been duly authorized by the Trust
Agreement and are validly issued and, subject to the terms of the
Trust Agreement, when delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued,
fully paid and non-assessable undivided beneficial interests in
the assets of the Trust; the holders of the Preferred Securities
will be entitled to the same limitation of personal liability
under Delaware law as is extended to stockholders of
-22-
private corporations for profit; such counsel may note that the
holders of the Preferred Securities may be obligated, pursuant to
the Trust Agreement, (A) to provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities certificates
and the issuance of replacement Preferred Securities
certificates, and (B) to provide security or indemnity in
connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement and
under the Delaware Act and the Trust Agreement the issuance of
the Preferred Securities is not subject to preemptive or other
similar rights.
(vi) Under the Delaware Act and the Trust Agreement, this Agreement
has been duly authorized by the Trust.
(vii) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the execution,
delivery and performance by the Trust of this Agreement, the
consummation by the Trust of the transactions contemplated
hereby and the compliance by the Trust with its obligations
hereunder will not violate (A) any of the provisions of the
Certificate of Trust or the Trust Agreement or (B) any
applicable Delaware law or administrative regulation.
(e) At the Closing Time, you shall have received an opinion, dated as
of the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel for the
Trust Company, as Indenture Trustee under the Indenture, as Guarantee
Trustee under the Guarantee, as Property Trustee under the Trust Agreement,
and as Delaware Trustee under the Trust Agreement, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust Company is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the
laws of the state of Delaware with all necessary corporate power
and authority to execute and deliver, and to carry out and
perform its obligations under the terms of the Trust Agreement,
the Indenture and the Guarantee.
(ii) The execution, delivery and performance by the Trust Company of
the Indenture, the Trust Agreement, and the Guarantee have been
duly authorized by all necessary corporate action on the
-23-
part of the Trust Company. The Indenture, the Trust Agreement
and the Guarantee have been duly executed and delivered by the
Trust Company, and constitute the legal, valid and binding
obligations of the Trust Company, enforceable against the Trust
Company in accordance with their respective terms, except as
enforceability thereof may be limited by the Permitted
Exceptions.
(iii) The execution, delivery and performance of the Indenture,
the Trust Agreement and the Guarantee by the Trust Company
does not conflict with or constitute a breach of the
Certificate of Incorporation or bylaws of the Trust Company.
(iv) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required
for the execution, delivery or performance by the Trust Company
of the Indenture, the Trust Agreement or the Guarantee.
(f) At the Closing Time, (i) the Registration Statement, and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and
the 1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations; the Company
shall have complied in all material respects with Rule 430A (if it shall
have elected to rely thereon) and neither the Registration Statement nor
the Prospectus, as they may then be amended or supplemented, shall contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) there shall not have been, since the respective dates
as of which information is given in the Registration Statement, any
material adverse change in the business, prospects, properties, assets,
results of operations or condition (financial or otherwise) of the Trust or
the Company and its subsidiaries, taken as a whole, whether or not arising
in the ordinary course of business, (iii) no action, suit or proceeding at
law or in equity shall be pending or, to the best of Offerors' knowledge,
threatened against the Company or the Trust that would be required to be
set forth in the Prospectus other than as set forth therein and no
proceedings shall be pending or, to the best knowledge of the Offerors,
threatened against the Company or the Trust before or by any federal, state
or other commission, board or administrative agency wherein an unfavorable
decision, ruling or finding could materially adversely affect the business,
prospects, assets, results of operations or condition (financial or
otherwise) of the Trust or the Company and its
-24-
subsidiaries, taken as a whole, other than as set forth in the
Prospectus, (iv) the Company and the Trust shall have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Time, and (v) the representations
and warranties of the Offerors set forth in Section I shall be accurate
as though expressly made at and as of the Closing Time. At the Closing
Time, you shall have received a certificate executed by the President
and Chief Financial Officer of the Company dated as of the Closing Time,
to such effect and with respect to the following additional matters: (A)
the Registration Statement has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration Statement
or preventing or suspending the use of the Prospectus has been issued,
and no proceedings for that purpose have been instituted or are pending
or, to the best of their knowledge, threatened under the 1933 Act; and
(B) they have reviewed the Registration Statement and the Prospectus,
when the Registration Statement became effective and at all times
subsequent thereto up to the delivery of such certificate, the
Registration Statement, and the Prospectus and any amendments or
supplements thereto contained all statements and information required to
be included therein or necessary to make the statements therein not
misleading and neither the Registration Statement, nor the Prospectus
nor any amendment or supplement thereto included any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an amended or
supplemented Prospectus that has not been so set forth.
(g) You shall have received from McGladrey & ▇▇▇▇▇▇, LLP letters
dated, respectively, the date hereof (but delivered prior to the execution
of this Agreement) and the Closing Time and the Date of Delivery, in form
heretofore agreed, with such variations as may be reasonably acceptable to
you.
(h) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
request for the purpose of enabling them to pass upon the issuance and sale
of the Preferred Securities as contemplated in this Agreement and the
matters referred to in Section 5(c) and in order to evidence the accuracy
and completeness of any of the representations, warranties or statements of
the Company and the Trust, the performance of any of the covenants of the
Company and the Trust, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company and the Trust at or
prior to the Closing Time in connection with the authorization, issuance
and sale of the Preferred Securities as contemplated in this Agreement
shall be reasonably
-25-
satisfactory in form and substance to you and to counsel for the
Underwriters. The Company and the Trust will furnish you with such
number of conformed copies of such opinions, certificates, letters and
documents as you shall reasonably request.
(i) The NASD, upon review of the terms of the public offering of the
Preferred Securities, shall not have objected to such offering, such terms
or the Underwriters' participation in the same.
(j) Subsequent to the date hereof, there shall not have occurred any
of the following: (i) if there has occurred or accelerated any outbreak of
hostilities or other national or international calamity or crisis or change
in economic or political conditions the effect of which on the financial
markets of the United States is such as to make it, in your judgment,
impracticable to market the Preferred Securities or enforce contracts for
the sale of the Preferred Securities, or (ii) if trading in any securities
of the Company has been suspended by the Commission or by the Nasdaq Stock
Market, or if trading generally on the New York Stock Exchange or in the
over-the-counter market has been suspended, or limitations on prices for
trading (other than limitations on hours or numbers of days of trading)
have been fixed, or maximum ranges for prices for securities have been
required, by the NASD or by order of the Commission or any other
governmental authority, or (iii) if a banking moratorium has been declared
by federal or New York, Kentucky or Indiana authorities, or (iv) any
federal or state statute, regulation, rule or order of any court or other
governmental authority has been enacted, published, decreed or otherwise
promulgated which in your reasonable opinion materially adversely affects
or will materially adversely affect the business or operations of the
Company or the Trust, or (v) any action has been taken by any federal,
state or local government or agency in response of its monetary or fiscal
affairs which in your reasonable opinion has a material adverse effect on
the securities markets in the United States.
If any of the conditions specified in this Section 5 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this Agreement
may be terminated by you on notice to the Company and the Trust at any time at
or prior to the Closing Time, and such termination shall be without liability of
any party to any other party, except as provided in Section 4. Notwithstanding
any such termination, the provisions of Section 6 shall remain in effect.
The several obligations of the Underwriters to purchase Option Preferred
Securities hereunder are subject to the satisfaction on and as of any Date of
Delivery for Option Preferred Securities of
-26-
the conditions set forth in this Section 5, except that, if any Date of
Delivery for Option Preferred Securities is other than the Closing Time, the
certificates, opinions and letters referred to in paragraphs (b), (c), (d),
(e) and (f) shall be revised to reflect the sale of Option Preferred
Securities.
Section 6. INDEMNIFICATION AND CONTRIBUTION
(a) Each of the Company and the Trust, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject under the 1933 Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (i) arise
out of or are based upon any breach of any warranty or covenant of the
Company or the Trust herein contained, (ii) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in (A) any Preliminary Prospectus, the Registration Statement, or
the Prospectus, or any amendment or supplement thereto, or (B) any
application or other document, or any amendment or supplement thereto,
executed by the Company or the Trust or based upon written information
furnished by or on behalf of the Company or the Trust filed in any
jurisdiction in order to qualify the Preferred Securities under the
securities or blue sky laws thereof or filed with the Commission or any
securities association or securities exchange (each an "Application"), or
(iii) arise out of or are based upon the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any Application a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Trust
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, the Registration Statement, or the
Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company or the Trust
by any Underwriter expressly for use therein. In addition to its other
obligations under this Section 6(a), the Company and the Trust agrees that
as an interim measure during the pendency of any such claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in
this Section 6(a), it will reimburse the Underwriters on a quarterly basis
for all reasonable legal and other expenses
-27-
incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and
enforceability of the Company's and the Trust's obligation to reimburse
the Underwriters for such expenses and the possibility that such
payments might later be held to have been improper by a court of
competent jurisdiction. Any such interim reimbursement payments that
are not made to an Underwriter within 30 days of a request for
reimbursement shall bear interest at the prime rate (or reference rate
or other commercial lending rate for borrowers of the highest credit
standing) published from time to time by The Wall Street Journal (the
"Prime Rate") from the date of such request. This indemnity agreement
shall be in addition to any liabilities that the Company and the Trust
may otherwise have. Each of the Company and the Trust will not, without
the prior written consent of each Underwriter, settle or compromise or
consent to the entry of any judgment in any pending or threatened action
or claim or related cause of action or portion of such cause of action
in respect of which indemnification may be sought hereunder (whether or
not such Underwriter is a party to such action or claim), unless such
settlement, compromise or consent includes an unconditional release of
such Underwriter from all liability arising out of such action or claim
(or related cause of action or portion thereof).
The indemnity agreement in this Section 6(a) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each
person, if any, who controls any Underwriter within the meaning of the 1933
Act to the same extent as such agreement applies to the Underwriters.
(b) Each Underwriter, severally but not jointly, will indemnify and
hold harmless the Company and the Trust against any losses, claims, damages
or liabilities to which the Company and the Trust may become subject, under
the 1933 Act, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any breach of any warranty or covenant by such Underwriter herein contained
or any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, any
462(b) Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement thereto in
-28-
reliance upon and in conformity with written information furnished to
the Company or the Trust by such Underwriter expressly for use therein;
and will reimburse the Company or the Trust for any legal or other
expenses reasonably incurred by the Company or the Trust in connection
with investigating or defending any such loss, claim damage, liability
or action. In addition to its other obligations under this Section
6(b), the Underwriters agree that, as an interim measure during the
pendency of any such claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or
any alleged statement or omission, described in this Section 6(b), they
will reimburse the Company and the Trust on a monthly basis for all
reasonable legal and other expenses incurred in connection with
investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of their obligation
to reimburse the Company and the Trust for such expenses and the
possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. Any such interim reimbursement
payments that are not made to the Company or the Trust, as the case may
be, within 30 days of a request for reimbursement shall bear interest at
the Prime Rate from the date of such request. This indemnity agreement
shall be in addition to any liabilities that the Underwriters may
otherwise have. No Underwriter will, without the prior written consent
of the Company and the Trust, settle or compromise or consent to the
entry of judgment in any pending or threatened action or claim or
related cause of action or portion of such cause of action in respect of
which indemnification may be sought hereunder (whether or not the
Company or the Trust is a party to such action or claim), unless such
settlement, compromise or consent includes an unconditional release of
the Company and the Trust from all liability arising out of such action
or claim (or related cause of action or portion thereof).
The indemnity agreement in this Section 6(b) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each
officer and director of the Company and the Trust and each person, if any,
who controls the Company and the Trust within the meaning of the 1933 Act
to the same extent as such agreement applies to the Company and the Trust.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; no
indemnification provided for in subsection (a) or (b) shall be available to
any party who shall fail to give notice as provided in this
-29-
subsection (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 the indemnifying party will not relieve the indemnifying party
from any liability that it may have to any indemnified party otherwise
than under Section 6. In case any such action 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 therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, except that if the indemnified party
has been advised by counsel in writing that there are one or more
defenses available to the indemnified party which are different from or
additional to those available to the indemnifying party, then the
indemnified party shall have the right to employ separate counsel and in
that event the reasonable fees and expenses of such separate counsel for
the indemnified party shall be paid by the indemnifying party; provided,
however, that if the indemnifying party is the Company or the Trust, the
Company or the Trust shall only be obligated to pay the reasonable fees
and expenses of a single law firm (and any reasonably necessary local
counsel) employed by all of the indemnified parties. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in this Section 6 is
for any reason judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the right of appeal) to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company and the Trust, on the one hand and the Underwriters on the other
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity incurred by the
Company and the Trust, and one or
-30-
more of the Underwriters, as incurred, in such proportions that (a) the
Underwriters are responsible pro rata for that portion represented by
the percentage that the underwriting discount appearing on the cover
page of the Prospectus bears to the public offering price (before
deducting expenses) appearing thereon, and (b) the Company and the Trust
are responsible for the balance, provided, however, that no person
guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation; provided,
further, that if the allocation provided above is not permitted by
applicable law, the Company and the Trust, on the one hand, and the
Underwriters on the other shall contribute to the aggregate losses in
such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company
and the Trust, on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the Company or the Trust, on the one
hand or by the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Trust and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) 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 in this
Section 6(d). The amount paid or payable by a party as a result of the
losses, claims, damages or liabilities referred to above shall be deemed
to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending such action or
claim. Notwithstanding the provisions of this Section 6(d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Preferred Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Underwriters'
obligations in this Section 6(d) to contribute are several in proportion
to their respective underwriting obligations and not joint. For
purposes of this Section 6(d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the, 1933 Act shall have
the same rights to contribution as
-31-
such Underwriter, and each director of the Company, each officer of the
Company or each trustee of the Trust who signed the Registration
Statement, and each person, if any, who controls the Company or the
Trust within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as the Company and the Trust.
Section 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other statements of
the Offerors or its officers set forth in or made pursuant to this Agreement
will remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Offerors, or any Underwriter or
controlling person, and with respect to an Underwriter or the Offerors will
survive delivery of and payment for the Preferred Securities or termination of
this Agreement.
Section 8. EFFECTIVE DATE OF AGREEMENT AND TERMINATION
(a) This Agreement shall become effective upon the later of (i) the
execution and delivery hereof by the parties hereto and (ii) release of
notification of effectiveness of the Registration Statement by the
Commission. By giving notice before the time this Agreement becomes
effective, you, or the Company, may prevent this Agreement from becoming
effective, without liability of any party to any other party, except that
the Company shall remain obligated to pay costs and expenses to the extent
provided in Section 4 hereof.
(b) You may terminate this Agreement, by notice to the Company and
the Trust, at any time at or prior to the Closing Time (i) in accordance
with the last paragraph of Section 5 of this Agreement, or (ii) if there
has been since the respective dates as of which information is given in the
Registration Statement, any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business, prospects, management, properties, assets, results of operations
or condition (financial or otherwise) of the Company, whether or not
arising in the ordinary course of business, or (iii) if there has occurred
or accelerated any outbreak of hostilities or other national or
international calamity or crisis or change in economic or political
conditions the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable to market the
Shares or enforce contracts for the sale of the Preferred Securities, or
(iv) if trading in any securities of the Company has been suspended by the
Commission or by the Nasdaq Stock Market or if trading generally on the New
York Stock Exchange or in the over-the-counter market has been suspended,
or limitations on prices for trading (other than limitations on hours or
numbers of days of trading) have been fixed, or maximum ranges for prices
-32-
for securities have been required, by the NASD or by order of the
Commission or any other governmental authority, or (v) if a banking
moratorium has been declared by federal or New York, Kentucky or Indiana
authorities, or (vi) any federal or state statute, regulation, rule or
order of any court or other governmental authority has been enacted,
published, decreed or otherwise promulgated which in your reasonable
opinion materially adversely affects or will materially adversely affect
the business or operations of the Company, or (vii) any action has been
taken by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your reasonable opinion has a material
adverse effect on the securities markets in the United States.
(c) If this Agreement is terminated pursuant to this Section 8, such
termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Section 6 shall remain in effect.
Section 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Preferred
Securities that it or they are obligated to purchase pursuant to this Agreement
(the "Defaulted Securities"), you shall have the right, within 36 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms set forth in this Agreement; if, however, you have not completed such
arrangements within such 36-hour period, then:
(a) if the aggregate number of Firm Preferred Securities which are
Defaulted Securities does not exceed 10% of the aggregate number of Firm
Preferred Securities to be purchased pursuant to this Agreement, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligation
proportions bear to the underwriting obligations of all non-defaulting
Underwriters, and
(b) If the aggregate number of Firm Preferred Securities which are
Defaulted Securities exceeds 10% of the aggregate number of Firm Preferred
Securities to be purchased pursuant to this Agreement, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Time for a period not exceeding
-33-
seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements, and the
Company agrees promptly to file any amendments to the Registration Statement
or supplements to the Prospectus that may thereby be made necessary. As used
in this Agreement, the term "Underwriter" includes any person substituted for
an Underwriter under this Section 9.
Section 10. DEFAULT BY THE COMPANY. If the Company or the Trust shall
fail at the Closing Time to sell and deliver the aggregate number of Firm
Preferred Securities that it is obligated to sell, then this Agreement shall
terminate without any liability on the part of any non-defaulting party, except
to the extent provided in Section 4 and except that the provisions of Section 6
shall remain in effect.
No action taken pursuant to this Section shall relieve the Company or the
Trust from liability, if any, in respect to such default.
Section 11. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed ▇/▇ ▇.▇.▇. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇,
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ (with a copy sent in the same manner to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: C. ▇▇▇▇▇
▇▇▇▇▇▇▇, Jr.); and notices to the Company shall be directed to it at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇,
President (with a copy sent in the same manner to ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇).
Section 12. PARTIES. This Agreement is made solely for the benefit of and
is binding upon the Underwriters, the Company and the Trust to the extent
provided in Section 6, any person controlling the Company, the Trust or any of
the Underwriters, the officers, directors; and trustees of the Company, and
their respective executors, administrators, successors and assigns and subject
to the provisions of Section 6, no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include any purchaser, as such purchaser, from any of the several
Underwriters of the Preferred Securities.
All of the obligations of the Underwriters hereunder are several and not
joint.
Section 13. GOVERNING LAW AND TIME. This Agreement shall be governed by
the laws of the Commonwealth of Kentucky. Specified
-34-
time of the day refers to United States Eastern Time. Time shall be of the
essence of this Agreement.
Section 14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
-35-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, and upon the acceptance
hereof by the Underwriters, this instrument will become a binding agreement
among the Company and the several Underwriters in accordance with its terms.
Very truly yours,
NATIONAL CITY BANCSHARES, INC.
By: ______________________________
Name: ________________________
Title:________________________
NCBE CAPITAL TRUST I
By: NATIONAL CITY BANCSHARES, INC.,
as Depositor
By: ______________________________
Name: ________________________
Title:________________________
The foregoing Agreement is hereby confirmed and accepted as of the date first
written above:
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, INC.
By: ______________________________
Name: ________________________
Title:________________________
NATCITY INVESTMENTS, INC.
By: ______________________________
Name: ________________________
Title:________________________
-36-
SCHEDULE A
NUMBER OF FIRM PREFERRED
UNDERWRITER SECURITIES TO BE PURCHASED
----------- --------------------------
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc.
NatCity Investments, Inc.
--------------------------
TOTAL 1,200,000
SCHEDULE B
The National City Bank of Evansville
The Peoples National Bank of Grayville
First Kentucky Bank
Lincolnland Bank
The Bank of ▇▇▇▇▇▇▇▇
▇▇▇▇ County Bank
Alliance Bank
White County Bank
The First National Bank of ▇▇▇▇▇ City
First Federal Savings Bank of Leitchfield
First National Bank of Bridgeport
First Bank of Huntingburg
Bank of Illinois in Mt. ▇▇▇▇▇▇