EXHIBIT 1.2
1,800,000 Convertible Preferred Securities
IFC Capital Trust III
[____]% Cumulative Convertible Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
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[________], 2000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
as Representative of the Several Underwriters
named in Schedule I hereto
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ Financial Corporation, an Indiana corporation (the "Company") and its
financing subsidiary, IFC Capital Trust III, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the "Offerors"), propose
that the Trust issue and sell to the several underwriters listed on Schedule I
hereto (the "Underwriters"), pursuant to the terms of this Agreement, 1,800,000
of the Trust's [___]% Cumulative Convertible Trust Preferred Securities, with a
liquidation amount of $25.00 per preferred security (the "Preferred
Securities"), to be issued under the Trust Agreement (as hereinafter defined),
the terms of which are more fully described in the Prospectus (as hereinafter
defined). The aforementioned 1,800,000 Preferred Securities to be sold to the
Underwriters are herein called the "Firm Preferred Securities." Solely for the
purpose of covering over-allotments in the sale of the Firm Preferred
Securities, the Offerors further propose that the Trust issue and sell to the
Underwriters, at their option, up to an additional 270,000 Preferred Securities
(the "Option Preferred Securities") upon exercise of the over-allotment option
granted in Section 1 hereof. The Firm Preferred Securities and any Option
Preferred Securities are herein collectively referred to as the "Designated
Preferred Securities." You are acting as representative of the Underwriters and
in such capacity are sometimes herein referred to as the "Representative."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. Sale, Purchase and Delivery of Designated Preferred Securities,
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Description of Designated Preferred Securities.
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(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25.00 per Preferred
Security (the "Purchase Price"), the respective number of Firm Preferred
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
Because the proceeds from the sale of the Firm Preferred Securities will be used
to purchase from the Company its Debentures (as hereinafter defined and as
described in the Prospectus), the Company shall pay to each Underwriter a
commission of [$______] per Firm Preferred Security purchased (the "Firm
Preferred Securities Commission"). In accordance with Section 9 hereof, the
Representative may by notice to the Company amend Schedule I to add, eliminate
or substitute names set forth therein (other than to eliminate the name of the
Representative) and to amend the number of firm Preferred Securities to be
purchased by any firm or corporation listed thereon, provided that the total
number of Firm Preferred Securities listed on Schedule I shall equal 1,800,000.
In addition, on the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Trust hereby grants to the Underwriters, severally and not jointly, an option to
purchase all or any portion of the 270,000 Option Preferred Securities, and upon
the exercise of such option in accordance with this Section 1, the Offerors
hereby agree that the Trust shall issue and sell to the Underwriters, severally
and not jointly, all or any portion of the Option Preferred Securities at the
same Purchase Price per share paid for the Firm Preferred Securities. If any
Option Preferred Securities are to be purchased, each Underwriter, severally and
not jointly, agrees to purchase from the Trust that proportion (subject to
adjustment as you may determine to avoid fractional shares) of the number of
Option Preferred Securities to be purchased that the number of Firm Preferred
Securities set forth opposite the name of such Underwriter in Schedule I hereto
(or such number increased as set forth in Section 9 hereof) bears to 1,800,000.
Because the proceeds from the sale of the Option Preferred Securities will be
used to purchase from the Company its Debentures, the Company shall pay to the
Underwriters a commission of [$______] per Option Preferred Security for each
Option Preferred Security purchased (the "Option Preferred Securities
Commission"). The option hereby granted (the "Option") shall expire 30 days
after the date upon which the Registration Statement (as hereinafter defined)
becomes effective and may be exercised only for the purpose of covering over-
allotments which may be made in connection with the offering and distribution of
the Firm Preferred Securities. The Option may be exercised in whole or in part
at any time (but not more than once) by you giving notice (confirmed in writing)
to the Trust setting forth the number of Option Preferred Securities as to which
the Underwriters are exercising the Option and the time, date and place for
payment and delivery of the Global Securities (as hereafter defined) for such
Option Preferred Securities. Such time and date of payment and delivery for the
Option Preferred Securities (the "Option Closing Date") shall be determined by
you, but shall not be earlier than two nor later than five full business days
after the exercise of such Option, nor in any event prior to the Closing Date
(as hereinafter defined). The Option Closing Date may be the same as the Closing
Date.
Payment of the Purchase Price and the Firm Preferred Securities Commission
and delivery of the Global Securities for the Firm Preferred Securities shall be
made at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as shall be
agreed to by you and the Offerors, at 10:00 a.m., St. Louis time, on
[__________], 2000, or at such other time not more than five full business days
thereafter as the Offerors and you shall determine (the "Closing Date"). The
Trust shall deliver or cause to be delivered to you for the account of the
Underwriters against payment to or upon the order of the Trust of the Purchase
Price in federal or other immediately available funds, the
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Firm Preferred Securities in the form of one or more permanent global securities
in definitive form (the "Global Securities") deposited with the Property Trustee
(as identified below) as custodian for the Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission and delivery of the Global Securities for such Option Preferred
Securities shall be made on the Option Closing Date at the Underwriters'
offices, or at such other place as the Offerors and you shall determine. Upon
delivery, the Option Preferred Securities shall be in the form of one or more
Global Securities registered in the name of Cede & Co., as nominee of DTC. Such
payments shall be made to an account designated by the Trust by wire transfer or
certified or bank cashier's check, in same day funds, in the amount of the
Purchase Price therefor, against delivery by or on behalf of the Trust to you
for the respective accounts of the several Underwriters of one or more Global
Certificates for the Designated Preferred Securities to be purchased by the
Underwriters.
The Agreement contained herein with respect to the timing of the Closing
Date and Option Closing Date is intended to, and does, constitute an express
agreement, as described in Rule 15c6-1(c) and (d) promulgated under the 1934 Act
(as defined herein), for a settlement date other than [three] business days
after the date of the contract.
Time shall be of the essence, and delivery of the Global Securities for the
Designated Preferred Securities at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Property Trustee and Delaware Trustee, the
Administrative Trustees named therein (collectively, the "Trustees"), and the
Company, in substantially the form heretofore delivered to the Underwriters,
said Agreement being hereinafter referred to as the "Trust Agreement." In
connection with the issuance of the Designated Preferred Securities, the Company
proposes (i) to issue its [_____]% Convertible Junior Subordinated Debentures
due 2030 (the "Debentures") pursuant to an Indenture, to be dated as of
[__________], 2000, between the Company and Wilmington Trust Company, as Trustee
(the "Indenture") and (ii) to guarantee certain payments on the Designated
Preferred Securities pursuant to a Convertible Preferred Securities Guarantee
Agreement between the Company and Wilmington Trust Company, as guarantee trustee
(the "Guarantee"), to the extent described therein.
2. Representations and Warranties.
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The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities Exchange
Act of 1934, as amended (the "1934 Act") and the rules and regulations
thereunder (the "1934 Act Regulations") at the time they were filed with
the Commission, complied as to form in all
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material respects with the requirements of the 1934 Act and the 1934 Act
Regulations and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they
were made, not misleading.
(ii) The Offerors have prepared and filed with the Commission
a registration statement on Form S-3 (File Numbers 333-44458, ▇▇▇-▇▇▇▇▇-▇▇
and 333-44458-02) for the registration of the Designated Preferred
Securities, the shares (the "Shares") of common stock, no par value, of the
Company (the "Common Stock") issuable by the Company upon conversion of the
Capital Securities, the Guarantee and up to $51,750,000 aggregate principal
amount of Debentures under the Securities Act of 1933, as amended (the
"1933 Act"), including the related prospectus subject to completion, and
one or more amendments to such registration statement may have been so
filed, in each case in conformity in all material respects with the
requirements of the 1933 Act, the rules and regulations promulgated
thereunder (the "1933 Act Regulations") and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and regulations
thereunder. Copies of such registration statement, including any amendments
thereto and any documents incorporated by reference therein, each
Preliminary Prospectus (as defined herein) contained therein and the
exhibits, financial statements and schedules to such registration
statement, as finally amended and revised, have heretofore been delivered
by the Offerors to the Representative. After the execution of this
Agreement, the Offerors will file with the Commission (A) if such
registration statement, as it may have been amended, has been declared by
the Commission to be effective under the 1933 Act, a prospectus in the form
most recently included in an amendment to such registration statement (or,
if no such amendment shall have been filed, in such registration
statement), with such changes or insertions as are required by Rule 430A of
the 1933 Act Regulations ("Rule 430A") or permitted by Rule 424(b) of the
1933 Act Regulations ("Rule 424(b)") and as have been provided to and not
objected to by the Representative prior to (or as are agreed to by the
Representative subsequent to) the execution of this Agreement, or (B) if
such registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the 1933 Act, an amendment
to such registration statement, including a form of final prospectus,
necessary to permit such registration statement to become effective, a copy
of which amendment has been furnished to and not objected to by the
Representative prior to (or is agreed to by the Representative subsequent
to) the execution of this Agreement. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended at
the time when it was or is declared effective under the 1933 Act, including
(1) all financial schedules and exhibits thereto, (2) all documents (or
portions thereof) incorporated by reference therein filed under the 1934
Act, and (3) any information omitted therefrom pursuant to Rule 430A and
included in the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion filed with such
registration statement or any amendment thereto, including all documents
(or portions thereof) incorporated by reference therein under the 1934 Act
(including the prospectus subject to completion, if any, included in the
Registration Statement and each prospectus filed pursuant to Rule 424(a)
under the 1933 Act); and the term "Prospectus" means the prospectus first
filed with the Commission pursuant to Rule 424(b)(1) or (4) or, if no
prospectus is required to be filed pursuant to Rule 424(b)(1) or (4), the
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prospectus included in the Registration Statement, in each case including
the financial schedules and all documents (or portions thereof)
incorporated by reference therein under the 1934 Act. The date on which the
Registration Statement becomes effective is hereinafter referred to as the
"Effective Date."
(iii) The documents incorporated by reference in the
Preliminary Prospectus or Prospectus or from which information is so
incorporated by reference, when they became effective or were filed with
the Commission, as the case may be, complied in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations, and when
read together and with the other information in the Preliminary Prospectus
or Prospectus, as the case may be, at the time the Registration Statement
became or becomes effective and at the Closing Date and any Option Closing
Date, did not or will not, as the case may be, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) No order preventing or suspending the use of any
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) has been issued by the Commission, nor has the Commission, to
the knowledge of the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary Prospectus, at
the time of filing thereof, (A) complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and (B) did not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
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warranty does not apply to statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Offerors by
any of the Underwriters expressly for inclusion in the Prospectus beneath
the heading "Underwriting" (such information referred to herein as the
"Underwriters' Information").
(v) At the Effective Date and at all times subsequent
thereto, up to and including the Closing Date and, if applicable, the
Option Closing Date, the Registration Statement and any post-effective
amendment thereto (A) complied and will comply in all material respects
with the requirements of the 1933 Act, the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder) and (B) did
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, not misleading; provided, however, that this
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representation and warranty does not apply to Underwriters' Information. At
the Effective Date and at all times when the Prospectus is required to be
delivered in connection with offers and sales of Designated Preferred
Securities, including, without limitation, the Closing Date and, if
applicable, the Option Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act (and the rules and regulations thereunder) and (B) did not
contain and will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; provided,
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however, that this representation and warranty does not apply to
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Underwriters' Information.
(vi) (A) The Company is duly organized and validly existing
under the laws of the State of Indiana, with full corporate and other power
and authority to own, lease and operate its properties and conduct its
business as described in and contemplated by the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted and is duly
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the Delaware
Business Trust Act with the power and authority (trust and other) to own
its property and conduct its business as described in the Registration
Statement and Prospectus, to issue and sell its common securities (the
"Common Securities") to the Company pursuant to the Trust Agreement, to
issue and sell the Designated Preferred Securities, to enter into and
perform its obligations under this Agreement and to consummate the
transactions herein contemplated; the Trust has no subsidiaries and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or the ownership of its property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Trust; the Trust has conducted and will conduct no business other
than the transactions contemplated by this Agreement and described in the
Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement and the
agreements and instruments contemplated by the Trust Agreement and
described in the Prospectus; the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the Prospectus; the
Trust is not a party to or subject to any action, suit or proceeding of any
nature; the Trust is not, and at the Closing Date or any Option Closing
Date will not be, to the knowledge of the Offerors, classified as an
association taxable as a corporation for United States federal income tax
purposes; and the Trust is, and as of the Closing Date or any Option
Closing Date will be, treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(vii) The Company currently has 26 direct and indirect
subsidiaries. They are listed on Exhibit A attached hereto and incorporated
herein (the "Subsidiaries"). Except for investments of ▇▇▇▇▇ Ventures
Incorporated or ▇▇▇▇▇ Ventures Incorporated - SBIC as described in the
Prospectus, the Company does not own or control, directly or indirectly,
more than 5% of any class of equity security of any corporation,
association or other entity other than the Subsidiaries. Each Subsidiary is
a corporation or bank duly organized or incorporated, as the case may be,
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation; provided, however, that the foregoing
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representation and warranty as it relates only to the "good standing" of a
Subsidiary does not apply to any Subsidiary which is incorporated in
Indiana or any other jurisdiction that does not provide good standing
certificates. Each such Subsidiary has full corporate and other power and
authority to own, lease and operate its properties and
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to conduct its business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and as currently being
conducted. The deposit accounts of ▇▇▇▇▇ Union Bank and Trust (the "Bank")
are insured by the Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation (the "FDIC") up to the maximum amount provided by
law; and no proceedings for the modification, termination or revocation of
any such insurance are pending or, to the knowledge of the Offerors,
threatened.
(viii) The Company and each of the Subsidiaries is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property or
conducts its business so as to require such qualification and in which the
failure to so qualify would, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. All of the issued and outstanding
shares of capital stock of the Subsidiaries (A) have been duly authorized
and are validly issued, (B) are fully paid and nonassessable except to the
extent such shares may be deemed assessable under 12 U.S.C. Section 55 or
12 U.S.C. Section 1831o, and (C) except for ▇▇▇▇▇ Home Equity Corporation
("IHE") which is at least 90% owned by the Company and Onset Capital
Corporation ("OCC") which is at least 78% owned by the Company, are owned
directly or indirectly by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, restriction upon voting or
transfer, preemptive rights, claim or equity and except for the provisions
of those certain shareholder agreements relating to IHE and OCC. Except as
disclosed in the Prospectus or issuable pursuant to compensatory plans or
programs disclosed in the Prospectus, and except for the provisions of
those certain shareholder agreements relating to IHE and OCC, there are no
outstanding rights, warrants or options to acquire or instruments
convertible into or exchangeable for any capital stock or equity securities
of the Offerors or the Subsidiaries.
(ix) The capital stock of the Company, including the Shares,
and the equity securities of the Trust conform to the description thereof
contained in the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus). The outstanding shares of capital stock and equity
securities of each Offeror have been duly authorized and validly issued and
are fully paid and nonassessable and no such shares were issued in
violation of the preemptive or similar rights of any security holder of an
Offeror. No person has any preemptive or similar right to purchase from the
Offerors any shares of capital stock of the Company or equity securities of
the Trust. Except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the Preliminary Prospectus), there are no restrictions
upon the voting or transfer of any capital stock of the Company or equity
securities of the Trust pursuant to the Trust Agreement or any agreement or
other instrument to which an Offeror is a party or by which an Offeror is
bound. The Shares initially issuable upon conversion of the Preferred
Securities have been duly authorized and validly reserved for issuance upon
conversion of the Preferred Securities and are free of statutory and
contractual preemptive rights and are sufficient in number to meet current
conversion requirements, and such Shares, when so issued upon conversion in
accordance with the terms of the Indenture and Trust Agreement, will be
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duly and validly issued and fully paid and nonassessable, with no personal
liability attaching to the ownership thereof.
(x) (A) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in accordance
with and upon the terms and conditions set forth in this Agreement, the
Trust Agreement, the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus). All corporate
and trust action required to be taken by the Offerors for the
authorization, issuance, sale and delivery of the Designated Preferred
Securities in accordance with such terms and conditions has been validly
and sufficiently taken. The Designated Preferred Securities, when delivered
in accordance with this Agreement, will represent valid fully paid and
nonassessable undivided beneficial interests in the assets of the Trust,
will be entitled to the benefits of the Trust Agreement, will not be issued
in violation of or subject to any preemptive or similar rights, and will
conform to the description thereof in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) and the Trust Agreement. None of the Designated Preferred
Securities, immediately prior to delivery, will be subject to any security
interest, lien, mortgage, pledge, encumbrance, restriction upon voting or
transfer, preemptive rights, claim, equity or other defect.
(B) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and issued as
provided in the Indenture and delivered to the Trust pursuant to the Trust
Agreement, will constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and will conform to the description
thereof contained in the Prospectus.
(C) The Guarantee has been duly and validly authorized,
and, when duly and validly executed and delivered to the guarantee trustee for
the benefit of the Trust, will constitute a valid and legally binding obligation
of the Company and will conform to the description thereof contained in the
Prospectus.
(D) The Agreement as to Expenses and Liabilities
between the Company and the Trust (the "Expense Agreement") has been duly and
validly authorized, and, when duly and validly executed and delivered by the
Company, will constitute a valid and legally binding obligation of the Company
and will conform to the description thereof contained in the Prospectus.
(xi) The Offerors and the Subsidiaries have complied in all
material respects with all federal, state and local statutes, regulations,
ordinances and rules as now in effect and applicable to the ownership and
operation of their properties or the conduct of their businesses as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) and as currently being conducted, except in each case for any
such noncompliance which would not have a material adverse effect on the
condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
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(xii) The Offerors and the Subsidiaries have all material
permits, easements, consents, licenses, franchises and other governmental
and regulatory authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own and lease
their properties and conduct their businesses in the manner described in
and contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the Preliminary Prospectus) and as
currently being conducted in all material respects, except where the
failure to obtain or possess any Permit would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), business, prospects or results of operations of the Company and
the Subsidiaries on a consolidated basis. All such Permits are in full
force and effect and each of the Offerors and the Subsidiaries are in all
material respects complying therewith, and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or
termination thereof or will result in any other material impairment of the
rights of the holder of any such Permit, subject in each case to such
qualification as may be adequately disclosed in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus) except where
such revocation, termination or impairment would not, individually or in
the aggregate, have a material adverse effect on the condition (financial
or otherwise), business, prospects, or results of operations of the Company
and the Subsidiaries on a consolidated basis. Such Permits contain no
restrictions that would materially impair the ability of the Company or the
Subsidiaries to conduct their businesses in the manner consistent with
their past practices. Neither the Offerors nor any of the Subsidiaries have
received notice or otherwise has knowledge of any proceeding or action
relating to the revocation or modification of any such Permit except where
such revocation, termination or impairment would not, individually or in
the aggregate, have a material adverse effect on the condition (financial
or otherwise), business, prospects, or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(xiii) Neither of the Offerors nor any of the Subsidiaries are
in breach or violation of their corporate charter, by-laws or other
governing documents (including without limitation, the Trust Agreement) in
any material respect. Neither of the Offerors nor any of the Subsidiaries
is, and to the knowledge of the Offerors no other party is, in violation,
breach or default (with or without notice or lapse of time or both) in the
performance or observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license, Permit or any other agreement or instrument to which it
is a party or by which it or any of its properties may be bound, which such
breach, violation or default could have a material adverse effect on the
condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis, and
to the knowledge of the Offerors, no other party has asserted that the
Offerors or any of the Subsidiaries is in such violation, breach or default
(provided that the foregoing shall not apply to defaults by borrowers from
the Bank), or (B) except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus), any order,
decree, judgment, rule or regulation of any court, arbitrator, government,
or governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties the breach, violation or default of which
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could have a material adverse effect on the condition (financial or
otherwise), business, prospects, or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Guarantee, the Indenture, the
Registration Statement and the Prospectus (or, if the Prospectus in not in
existence, the most recent Preliminary Prospectus) do not and will not
conflict with, result in the creation or imposition of any material lien,
claim, charge, encumbrance or restriction upon any property or assets of
the Offerors or the Subsidiaries or the Designated Preferred Securities
pursuant to, constitute a breach or violation of, or constitute a default
under, with or without notice or lapse of time or both, any of the terms,
provisions or conditions of the charter or by-laws of the Company or the
Subsidiaries, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which the Offerors or the Subsidiaries is a
party or by which any of them or any of their respective properties may be
bound or any order, decree, judgment, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality, domestic
or foreign, having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties which conflict, creation, imposition,
breach, violation or default would have either singly or in the aggregate a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. No authorization, approval, consent
or order of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or authority)
is required in connection with the transactions contemplated by this
Agreement, the Trust Agreement, the Indenture, the Guarantee, the
Registration Statement and the Prospectus (or such Preliminary Prospectus),
except such as have been obtained under the 1933 Act and the Trust
Indenture Act and from the Nasdaq Stock Market relating to the listing of
the Designated Preferred Securities, and such as may be required under
state securities laws or Interpretations or Rules of the National
Association of Securities Dealers, Inc. ("NASD") in connection with the
purchase and distribution of the Designated Preferred Securities by the
Underwriters.
(xv) The Offerors have all requisite corporate power and
authority to enter into this Agreement and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors and constitutes
the legal, valid and binding agreement of the Offerors, enforceable against
the Offerors in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and by bankruptcy or
other laws relating to or affecting creditors' rights generally and except
as any indemnification or contribution provisions thereof may be limited
under applicable securities laws. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly authorized
by the Company, and, when executed and delivered by the Company on the
Closing Date, each of said agreements will constitute a valid and legally
binding obligation of the Company and will be enforceable against the
Company in accordance with its terms, except as the enforcement thereof may
be limited by general principles of equity and by bankruptcy or other laws
relating to or affecting creditors' rights generally and except as any
indemnification or contribution provisions
10
thereof may be limited under applicable securities laws. Each of the
Indenture, the Trust Agreement and the Guarantee has been duly qualified
under the Trust Indenture Act and will conform to the description thereof
contained in the Prospectus.
(xvi) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to all
personal property owned by them and material to their business, in each
case free and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except such
as are referred to in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or such as do not
materially affect the value of such property in the aggregate and do not
materially interfere with the use made or proposed to be made of such
property; and all of the leases under which the Company or the Subsidiaries
hold real or personal property are valid, existing and enforceable leases
and in full force and effect with such exceptions as are not material and
do not materially interfere with the use made or proposed to be made of
such real or personal property, and neither the Company nor any of the
Subsidiaries is in default in any material respect of any of the terms or
provisions of any leases, except, in each case where the failure to so
possess or the existence of such default would not individually or on the
aggregate, have a material adverse effect on the condition (financial or
otherwise), business, prospects, or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(xvii) PricewaterhouseCoopers LLP, who have certified certain
of the consolidated financial statements of the Company and the
Subsidiaries including the notes thereto, included by incorporation by
reference in the Registration Statement and Prospectus, are independent
public accountants with respect to the Company and the Subsidiaries, as
required by the 1933 Act and the 1933 Act Regulations.
(xviii) The consolidated financial statements including the
notes thereto, included by incorporation by reference in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) with respect to the Company and the
Subsidiaries comply in all material respects with the 1933 Act and the 1933
Act Regulations and present fairly the consolidated financial position of
the Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations, cash flows and shareholders' equity of
the Company and the Subsidiaries for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis. The selected consolidated financial data
concerning the Company and the Subsidiaries included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) comply in all
material respects with the 1933 Act and the 1933 Act Regulations, present
fairly the information set forth therein, and have been compiled on a basis
consistent with that of the consolidated financial statements of the
Company and the Subsidiaries in the Registration Statement and the
Prospectus (or such Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) comply in all
material respects with the 1933 Act and the 1933 Act Regulations, present
fairly the information shown therein, and to the extent applicable have
been compiled on a basis consistent with the consolidated
11
financial statements of the Company and the Subsidiaries included in the
Registration Statement and the Prospectus (or such Preliminary Prospectus).
(xix) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
except as otherwise stated therein:
(A) neither of the Offerors nor any of the Subsidiaries
has sustained any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which is material to
the condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis;
(B) there has not been any material adverse change in,
or any development which is reasonably likely to have a material adverse effect
on, the condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis, whether
or not arising in the ordinary course of business;
(C) neither of the Offerors nor any of the Subsidiaries
has incurred any liabilities or obligations, direct or contingent, or entered
into any material transactions, other than in the ordinary course of business,
which is material to the condition (financial or otherwise), business, prospects
or results of operations of the Company and the Subsidiaries on a consolidated
basis;
(D) neither of the Offerors has declared or paid any
dividend other than the Company's regular dividends on its common stock, and
neither of the Offerors nor any of the Subsidiaries has become delinquent in the
payment of principal or interest on any outstanding borrowings; and
(E) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital leases or, other
than in the ordinary course of business, short-term borrowings of the Offerors
or the Subsidiaries.
(xx) Except as set forth in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Offerors, threatened,
against or affecting the Offerors or the Subsidiaries or any of their
respective properties before or by any court or any regulatory,
administrative or governmental official, commission, board, agency or other
authority or body, or any arbitrator, wherein an unfavorable decision,
ruling or finding could reasonably be expected to have a material adverse
effect on the consummation of this Agreement or the transactions
contemplated herein or the condition (financial or otherwise), business,
prospects or results of operations of the Offerors and the Subsidiaries on
a consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus (or such Preliminary Prospectus)
and is not so disclosed.
12
(xxi) There are no contracts or other documents required to
be filed as exhibits to the Registration Statement by the 1933 Act or the
1933 Act Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as exhibits or
incorporated by reference to the Registration Statement, or that are
required to be summarized in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) that are not so
summarized.
(xxii) Neither of the Offerors has taken, directly or
indirectly, any action designed to result in or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Offerors to facilitate the
sale or resale of the Designated Preferred Securities in violation of the
Commissioner's rules and regulations, including, but not limited to,
Regulation M, and neither of the Offerors is aware of any such action taken
or to be taken by any affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service marks,
trade names and other rights necessary to conduct the businesses now
conducted by them in all material respects or as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and neither the Company nor the Subsidiaries have
received any notice of infringement or conflict with asserted rights of
others with respect to any patents, copyrights, trademarks, service marks,
trade names or other rights which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis, and the Offerors do not know of any
basis for any such infringement or conflict.
(xxiv) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus), no labor
dispute involving the Company or the Subsidiaries exists or, to the
knowledge of the Offerors, is imminent which might be expected to have a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis or which is required to be disclosed
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus). Neither the Company nor any of the
Subsidiaries have received notice of any existing or threatened labor
dispute by the employees of any of its principal suppliers, customers or
contractors which might be expected to have a material adverse effect on
the condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
(xxv) The Offerors and the Subsidiaries have timely and
properly prepared and filed all necessary federal, state, local and foreign
tax returns which are required to be filed and have paid all taxes shown as
due thereon and have paid all other taxes and assessments to the extent
that the same shall have become due, except such as are being contested in
good faith or where the failure to so timely and properly prepare and file
would not have a material adverse effect on the condition (financial or
13
otherwise), business, prospects or results of operations of the Company and
the Subsidiaries on a consolidated basis. The Offerors have no knowledge of
any tax deficiency which has been or might be assessed against the Offerors
or the Subsidiaries which, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the condition
(financial or otherwise), business, prospects or results of operations of
the Company and the Subsidiaries on a consolidated basis.
(xxvi) Each of the material contracts, agreements and
instruments listed, described, or attached as an exhibit to the Company's
Annual Report on Form 10-K for the year ended December 31, 1999, or its
Quarterly Reports on Form 10-Q for the quarters ended March 31 and June 30,
2000, as filed with the Commission is in full force and effect and is the
legal, valid and binding agreement of the Offerors or the Subsidiaries,
enforceable in accordance with its terms, except as the enforcement thereof
may be limited by general principles of equity and by bankruptcy or other
laws relating to or affecting creditors' rights generally, except where the
cancellation, termination or unenforceability does not constitute a
material change in the affairs of the Company and the Subsidiaries on a
consolidated basis. Except as disclosed in the Prospectus (or such
Preliminary Prospectus), to the knowledge of the Offerors, no other party
to any such agreement is (with or without notice or lapse of time or both)
in breach or default in any material respect thereunder, except where the
default or breach does not constitute a material change in the affairs of
the Company and the Subsidiaries on a consolidated basis.
(xxvii) No relationship, direct or indirect, exists between
or among the Company or the Subsidiaries, on the one hand, and the
directors, officers, trustees, shareholders, customers or suppliers of the
Company or the Subsidiaries, on the other hand, which is required to be
described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
which is not adequately described therein.
(xxviii) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering and
sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Designated
Preferred Securities except as adequately disclosed in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(xxix) The Designated Preferred Securities have been
approved for quotation on the Nasdaq Stock Market subject to official
notice of issuance.
(xxx) Except as described in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus), there are no
contractual encumbrances or restrictions or material legal restrictions
required to be described therein, on the ability of the Subsidiaries (A) to
pay dividends or make any other distributions on its capital stock or to
pay any indebtedness owed to the Company, (B) to make any loans or advances
to, or investments in, the Company or (C) to transfer any of its property
or assets to the Company.
14
(xxxi) Neither of the Offerors is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxxii) The Offerors have not distributed and will not
distribute prior to the Closing Date any prospectus in connection with the
Offering, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933 Act
and the 1933 Act Regulations and reviewed by or on behalf of the
Representative.
3. Offering by the Underwriters.
----------------------------
After the Registration Statement becomes effective or, if the Registration
Statement is already effective, after this Agreement becomes effective, the
Underwriters propose to offer the Firm Preferred Securities for sale to the
public upon the terms and conditions set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering price
and change the other selling terms, provided the proceeds to the Trust shall not
be reduced as a result of such reduction or change. Because the NASD is expected
to view the Preferred Securities as interests in a direct participation program,
the offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's Conduct rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by them (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. Certain Covenants of the Offerors.
---------------------------------
The Offerors jointly and severally covenant with the Underwriters as
follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then, the
Offerors will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted and will provide evidence satisfactory to the
Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such
notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus
has been filed;
15
(ii) of the receipt of any comments or requests from the
Commission;
(iii) of any request of the Commission to amend or supplement
the Registration Statement, any Preliminary Prospectus or the Prospectus or
for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities for offering or
sale in any jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offerors shall use their best
efforts to prevent the issuance of any such stop order or of any other such
order and if any such order is issued, to cause such order to be withdrawn
or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to
time without charge, as soon as available, as many copies as the Underwriters
may reasonably request of (i) the registration statement as originally filed and
of all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) the Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply to the best of their ability with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Designated
Preferred Securities as contemplated herein and in the Trust Agreement and the
Prospectus. The Offerors shall not file any amendment to the registration
statement as originally filed or to the Registration Statement and shall not
file any amendment thereto or make any amendment or supplement to the
Preliminary Prospectus or to the Prospectus of which you shall not previously
have been advised in writing and provided a copy a reasonable time prior to the
proposed filings thereof or to which you or counsel for the Underwriters shall
reasonably object. If it is necessary, in the Company's reasonable opinion or in
the reasonable opinion of the Company's counsel to amend or supplement the
Registration Statement or the Prospectus in connection with the distribution of
the Designated Preferred Securities and the Shares, the Offerors shall forthwith
amend or supplement the Registration Statement or the Prospectus, as the case
may be, by preparing and filing with the Commission (provided the Underwriters
or counsel for the Underwriters does not reasonably object), and furnishing to
you such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Registration Statement or
the Prospectus, as the case may be (in form and substance reasonably
satisfactory to you and counsel for the Underwriters). If any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus to
correct an untrue statement of a material fact or to include a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or if for any reason it is necessary at
any time to amend or supplement the Prospectus to comply with the 1933 Act and
the 1933 Act Regulations, the Offerors shall, subject to the second sentence of
this subsection (d), forthwith amend or
16
supplement the Prospectus by preparing and filing with the Commission, and
furnishing to you, such number of copies as you may reasonably request of an
amendment or amendments of, or a supplement or supplements to, the Prospectus
(in form and substance satisfactory to you and counsel for the Underwriters) so
that, as so amended or supplemented, the Prospectus shall not contain an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Preferred Securities and the
Shares for offering and sale under the securities or blue sky laws of such
jurisdictions as you may reasonably request and shall continue such
qualifications in effect so long as may be advisable for distribution of the
Designated Preferred Securities and the Shares; provided, however, that the
-------- -------
Offerors shall not be required to qualify to do business as a foreign
corporation or file a general consent to service of process in any jurisdiction
in connection with the foregoing. The Offerors shall file such statements and
reports as may be required by the laws of each jurisdiction in which the
Designated Preferred Securities and the Shares have been qualified as above. The
Offerors will notify you immediately of, and confirm in writing, the suspension
of qualification of the Designated Preferred Securities and the Shares or threat
thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors
conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the net proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall
furnish to the Representative copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities and the Shares as a class, copies of all reports
and financial statements filed with or furnished to the Commission (other than
portions for which confidential treatment has been obtained from the Commission)
or with any national securities exchange or the Nasdaq Stock Market or other
self-regulatory organization and such other documents, reports and information
concerning the business and financial conditions of the Offerors as the
Representative may reasonably request, other than such documents, reports and
information for which the Offerors have the legal obligation not to reveal to
the Representative.
(i) (i) For a period of 90 days from the Effective Date, the
Offerors shall not, directly or indirectly, offer for sale, sell or agree to
sell or otherwise dispose of any Designated Preferred Securities, any other
beneficial interests in the assets of the Trust or any securities of the Trust
or the Company that are substantially similar to the Designated Preferred
Securities, including any guarantee of such beneficial interests or
substantially similar securities, or securities convertible into or exchangeable
for or that represent the right to receive any such
17
beneficial interest or substantially similar securities, other than securities
relating to IFC Capital Trust II covered by the Registration Statement, and (ii)
for a period of 90 days from the Effective Date, the Offerors shall not, without
the prior written consent of the Representative, directly or indirectly, offer
for sale, sell or agree to sell or otherwise dispose of any shares of Common
Stock or securities convertible into or exchangeable for Common Stock or
warrants or other rights to purchase Common Stock or permit the registration
under the 1933 Act of any shares of Common Stock, except for (1) the
registration of the Designated Preferred Securities and the Shares and the sales
to the Underwriters pursuant to this Agreement, (2) issuances of Common Stock
upon the exercise of outstanding options, warrants and debentures or upon the
conversion of shares of preferred stock outstanding as of the date hereof, (3)
grants of options or other rights to purchase Common Stock and issuances of
shares of Common Stock under employee benefit plans and other compensatory
programs in existence on the date hereof and registrations thereof on Form S-8,
(4) issuances of Preferred Stock pursuant to the ▇▇▇▇▇ Union Bank Business
Development Board Program as described in the Prospectus and possible issuances
of Common Stock upon the conversion thereof, [and (4) __________.]
(j) The Offerors shall use their best efforts to cause the
Designated Preferred Securities and the Shares to become quoted on the Nasdaq
Stock Market, or in lieu thereof a national securities exchange, and to remain
so quoted for at least five years from the Effective Date or for such shorter
period as may be specified in a written consent of the Representative, provided
this shall not prevent the Company from redeeming the Designated Preferred
Securities pursuant to the terms of the Trust Agreement. If the Designated
Preferred Securities are exchanged for Debentures, the Company shall use its
best efforts to have the Debentures promptly listed on the Nasdaq Stock Market
or other organization on which the Designated Preferred Securities are then
listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, or take or refrain from taking any
action which will cause or result in any material adverse change in the
financial position, capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the Offerors and
the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Representative, purchase,
redeem or call for redemption, or prepay or give notice of prepayment (or
announce any redemption or call for redemption, or any repayment or notice of
prepayment) of the Offerors' securities, except for any purchases of shares of
Common Stock pursuant to a publicly announced stock buy-back program.
(m) The Offerors shall not take, directly or indirectly, any action
designed to result in or which constitutes or which might reasonably be expected
to (i) cause or result in
18
stabilization or manipulation of the price of any security of the Offerors to
facilitate the sale or resale of the Designated Preferred Securities or the
Shares or (ii) otherwise violate the Commission's Regulation M and the Offerors
are not aware of any such action taken or to be taken by any affiliate of the
Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Offerors will not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities or the Shares (the "Offering") which you shall not previously have
been provided a copy a reasonable time prior to the release thereof or provided
reasonable notice thereof and you shall not have reasonably objected thereto.
(o) The Offerors shall use best efforts to comply with all
applicable registration, filing and reporting requirements of the 1934 Act for
so long as the Preferred Securities or the Debentures shall remain outstanding.
(p) At any time that the number of authorized but unissued shares
of Common Stock (or shares of Common Stock held in treasury and available for
such purpose) shall be less than the aggregate number of shares of Common Stock
into which the Preferred Securities then outstanding shall be convertible, the
Company shall take such action as is necessary to increase the number of shares
of Common Stock which the Company is authorized to issue so that the Company
will have a sufficient number of shares of Common Stock available for conversion
of the Capital Securities then outstanding.
5. Payment of Expenses.
-------------------
Whether or not this Agreement is terminated or the sale of the Designated
Preferred Securities to the Underwriters is consummated, the Company covenants
and agrees that it will pay or cause to be paid (directly or by reimbursement)
all costs and expenses incident to the performance of the obligations of the
Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements);
(b) all fees, expenses and disbursements of the Offerors' counsel
and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith, not to exceed $3,000;
(d) all fees and expenses incurred in connection with filings made
with the NASD and DTC;
19
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the Nasdaq Stock Market;
(f) the cost of furnishing to you copies of the initial
registration statements, any Preliminary Prospectus, the Registration Statement
and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and
the fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes)
incurred in connection with the printing, issuance and delivery of the
Designated Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and
delivery of the Trust Agreement, the Indenture, the Guarantee and the Expense
Agreement; and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, reasonable fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
20
6. Conditions of the Underwriters' Obligations.
-------------------------------------------
The obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise of the option granted by the
Offerors in Section 1 of this Agreement, the Option Preferred Securities, are
subject, in your sole discretion, to the accuracy of and compliance with the
representations and warranties and agreements of the Offerors herein as of the
date hereof and as of the Closing Date (or in the case of the Option Preferred
Securities, if any, as of the Option Closing Date), to the accuracy of the
written statements of the Offerors made pursuant to the provisions hereof, to
the performance by the Offerors of their covenants and obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Representative, shall be contemplated by
the Commission or any state authority. Any request on the part of the Commission
or any state authority for additional information (to be included in the
Registration Statement or Prospectus or otherwise) shall have been disclosed to
you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of a fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Trust Agreement, and
the Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and the
Offerors and the Subsidiaries shall have furnished to such counsel all documents
and information relating thereto that they may reasonably request to enable them
to pass upon such matters.
(d) ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Offerors, shall have furnished to you their signed opinion, dated the Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
21
(i) The Company has been duly organized and is existing
under the laws of the State of Indiana, and is duly registered as a bank
holding company under the BHC Act. Each of the Subsidiaries is duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation (other than Subsidiaries incorporated in
Indiana for which no opinion as to good standing shall be required). Each
of the Company and the Subsidiaries has full corporate power and authority
to own or lease its properties and to conduct its business as such business
is described in the Prospectus and is currently conducted in all material
respects. All outstanding shares of capital stock of the Subsidiaries have
been duly authorized and validly issued and are fully paid and
nonassessable except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 1831 and, to the best of such counsel's knowledge,
except as disclosed in the Prospectus, there are no outstanding rights,
options or warrants to purchase any such shares or securities convertible
into or exchangeable for any such shares other than pursuant to the terms
of certain shareholder agreements relating to IHE and OCC.
(ii) The capital stock of the Company, the Debentures and
Guarantee of the Company and the equity securities of the Trust conform to
the description thereof contained in the Prospectus in all material
respects. To the best of such counsel's knowledge, the capital stock of the
Company authorized and issued as of June 30, 2000 is as set forth under the
caption "Capitalization" in the Prospectus, has been duly authorized and
validly issued, and is fully paid and nonassesable. To the best of such
counsel's knowledge, there are no outstanding rights, options or warrants
to purchase, no other outstanding securities convertible into or
exchangeable for, and no commitments, plans or arrangements to issue, any
shares of capital stock of the Company or equity securities of the Trust,
except (1) as described in the Prospectus, (2) the registration of the
Designated Preferred Securities and the Shares and the sales to the
Underwriters pursuant to this Agreement, (3) issuances of Common Stock upon
the exercise of outstanding options, warrants and debentures or upon the
conversion of shares of preferred stock outstanding as of the date hereof,
(4) grants of options or other rights to purchase Common Stock and
issuances of shares of Common Stock under employee benefit plans and other
compensatory programs in existence on the date hereof and registrations
thereof on Form S-8, (5) issuances of Preferred Stock pursuant to the ▇▇▇▇▇
Union Bank Business Development Board Program as described in the
Prospectus and possible issuances of Common Stock upon the conversion
thereof, [and (5) __________.]
(iii) The issuance, sale and delivery of the Shares and
Debentures in accordance with the terms and conditions of this Agreement
and the Indenture have been duly authorized by all necessary actions of the
Offerors. The Designated Preferred Securities conform to the description
thereof in the Registration Statement, the Prospectus and the Trust
Agreement. The Designated Preferred Securities have been approved for
quotation on the Nasdaq Stock Market subject to official notice of
issuance. There are no preemptive or other rights to subscribe for or to
purchase, and other than as disclosed in the Prospectus no restrictions
upon the voting or transfer of, any equity securities of the Offerors or
the Subsidiaries pursuant to the corporate charter, by-laws or other
governing documents (including without limitation, the Trust Agreement) of
the Offerors or the Subsidiaries, or, to the best of such counsel's
knowledge, any agreement
22
or other instrument to which either Offeror or any of the Subsidiaries is a
party or by which either Offeror or any of the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and trust
power to enter into and perform their obligations under this Agreement, and
this Agreement has been duly and validly authorized, executed and delivered
by the Offerors and constitutes the legal, valid and binding obligations of
the Offerors enforceable in accordance with its terms, except as the
enforcement hereof or thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting creditors'
rights generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain remedies
may not be available in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act, has been
duly authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity.
(vi) The Debentures have been duly authorized, executed, and
delivered by the Company, and, when authenticated by the Indenture Trustee,
will be legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to the effect
of bankruptcy, insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors generally and of
general principles of equity. The holders of the Debentures are entitled to
the benefits of the Indenture.
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its terms, subject
to the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
(viii) The Shares initially issuable upon conversion of the
Preferred Securities and the Debentures have been duly authorized and
validly reserved for issuance upon conversion of the Preferred Securities
and the Debentures and are free of statutory and, to the best of such
counsel's knowledge, contractual preemptive rights and are sufficient in
number to meet current conversion requirements, and such Shares, when so
issued upon such conversion in accordance with the terms of the Trust
Agreement and the Indenture, will be duly and validly issued and fully paid
and nonassessable, with no personal liability attaching to the ownership
thereof.
(ix) To the best of such counsel's knowledge, neither of the
Offerors nor any of the Subsidiaries is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, by-laws or governing document (including without
limitation, the Trust Agreement), except for such violation, breach or
23
default which will not have a material adverse effect on the Company and
the Subsidiaries taken as a whole. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated by
this Agreement, and the Trust Agreement do not and will not conflict with,
result in the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or
the Subsidiaries or the Designated Preferred Securities pursuant to, or
constitute a material breach or violation of, or constitute a material
default under, with or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws or governing
document (including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or to the best of such counsel's knowledge,
any material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license or any other agreement or
instrument to which either Offeror or the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or any
order, decree, judgment, franchise, license, Permit, rule or regulation of
any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties which, in each case, is material to the Offerors and
the Subsidiaries on a consolidated basis.
(x) To the best of such counsel's knowledge, holders of
securities of the Offerors do not have any right that, if exercised, would
require the Offerors to cause such securities to be included in the
Registration Statement or have waived such right. To the best of such
counsel's knowledge, neither the Company nor any of the Subsidiaries is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Offerors.
(xi) Except as set forth in the Registration Statement and
the Prospectus, to the best of such counsel's knowledge, (i) no action,
suit or proceeding at law or in equity is pending or threatened in writing
to which the Offerors or the Subsidiaries is or is threatened to be made a
party, and (ii) no action, suit or proceeding is pending or threatened in
writing against or affecting the Offerors or the Subsidiaries or any of
their properties, before or by any court or governmental official,
commission, board or other administrative agency, authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or finding could
reasonably be expected to have a material adverse effect on the
consummation of this Agreement or the issuance and sale of the Designated
Preferred Securities as contemplated herein or the condition (financial or
otherwise), business, or results of operations of the Offerors and the
Subsidiaries on a consolidated basis or which is required to be disclosed
in the Registration Statement or the Prospectus and is not so disclosed.
(xii) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act and the Trust Indenture Act, and
except such as may be required under state securities laws or
24
Interpretations or Rules of the NASD in connection with the purchase and
distribution of the Designated Preferred Securities by the Underwriters.
(xiii) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial statements or
other financial data included therein or omitted therefrom and
Underwriters' Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations as of their respective dates
of effectiveness or issuance. The documents incorporated by reference in
the Registration Statement and the Prospectus and any amendments or
supplements thereto (other than the financial statements or other financial
data included therein or omitted therefrom, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations as of their
respective dates of effectiveness.
(xiv) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required to
be described in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed.
(xv) The statements under the captions "The Preferred
Securities of IFC Capital Trust III -- Description of the Trust," "The
Preferred Securities of IFC Capital Trust III -- Description of the
Convertible Preferred Securities," "The Preferred Securities of IFC Capital
Trust III -- Description of the Convertible Debentures," "Description of
the Guarantees," "Relationship Among the Preferred Securities and the
Debentures, the Convertible Preferred Securities and the Convertible
Debentures and the Guarantees," "Description of Capital Stock, " "Federal
Income Tax Consequences," and "ERISA Considerations" in the Prospectus, and
the statements under the captions "Supervision and Regulation" included in
Item 1 (Business) in the Company's Annual Report on Form 10-K for the year
ended December 31, 1999, insofar as such statements constitute a
description of legal and regulatory matters, documents or instruments
referred to therein, are accurate descriptions of the matters purported to
be summarized therein in all material respects and fairly present the
information called for with respect to such legal matters, documents and
instruments, other than financial and statistical data as to which said
counsel expresses no opinion or belief.
(xvi) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made within the time period required by Rule 424(b); to the best of
such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop order
are pending or threatened by the Commission.
(xvii) Except as disclosed in the Prospectus, to the best of
such counsel's knowledge, there are no contractual encumbrances or
restrictions, or material legal restrictions required to be disclosed on
the ability of the Subsidiaries (A) to pay dividends or make any other
distributions on its capital stock or to pay indebtedness owed to the
25
Offerors, (B) to make any loans or advances to, or investments in, the
Offerors or (C) to transfer any of its property or assets to the Offerors.
(xviii) To the best of such counsel's knowledge, (A) the
business and operations of the Offerors and the Subsidiaries comply in all
material respects with all statutes, ordinances, laws, rules and
regulations applicable thereto and which are material to the Offerors and
the Subsidiaries on a consolidated basis, except in those instances where
non-compliance would not materially impair the ability of the Offerors and
the Subsidiaries to conduct their business; and (B) the Offerors and the
Subsidiaries possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all Permits,
consents, licenses, franchises and governmental and regulatory
authorizations ("Authorizations") and required to conduct their businesses
as described in the Prospectus and which are material to the Offerors and
the Subsidiaries on a consolidated basis, except in those instances where
the loss thereof or non-compliance therewith would not have a material
adverse effect on the condition (financial or otherwise), business,
prospects or results of operations of the Offerors and the Subsidiaries on
a consolidated basis; to the best of such counsel's knowledge, all such
Authorizations are valid and in full force and effect, and, to the best of
such counsel's knowledge, no action, suit or proceeding is pending or
threatened which may lead to the revocation, termination, suspension or
non-renewal of any such Authorization, except in those instances where the
loss thereof or non-compliance therewith would not materially impair the
ability of the Offerors or the Subsidiaries to conduct their businesses.
(xix) Neither the Company nor the Trust is and, after
giving effect to the offering and sale of the Designated Preferred
Securities and the application of the proceeds thereof as described in the
Prospectus, neither the Company nor the Trust will be, an "investment
company" as defined in the Investment Company Act of 1940, as amended.
In giving the above opinion, such counsel may state that, insofar as such
opinion involves factual matters, they have relied upon certificates of officers
of the Offerors including, without limitation, certificates as to the identity
of any and all material contracts, indentures, mortgages, deeds of trust, loans
or credit agreements, notes, leases, franchises, licenses or other agreements or
instruments, and all material permits, easements, consents, licenses, franchises
and government regulatory authorizations, for purposes of paragraphs (ix), (xiv)
and (xviii) hereof, and certificates of public officials. In addition, it is
contemplated that such counsel in giving the above opinion shall, with respect
to matters addressed in the opinions described in clauses (i) and (ii) below,
rely on (i) the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel
to the Offerors as to certain matters relating to the Trust and the Designated
Preferred Securities which are governed by Delaware law, and (ii) the opinion of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President - Legal of the Company, as to certain matters
regarding the Company and the Subsidiaries, and such counsel shall state in its
opinion the amount of reliance it is placing on the opinion of such Company
counsel and that such reliance is, in the view of such counsel, reasonable under
the circumstances.
Such counsel shall also confirm that, in connection with the preparation of
the Registration Statement and Prospectus, such counsel has participated in
conferences with officers
26
and representatives of the Offerors and with their independent public
accountants and with you and your counsel, at which conferences such counsel
made inquiries of such officers, representatives and accountants and discussed
in detail the contents of the Registration Statement and Prospectus and the
documents incorporated therein by reference and such counsel has no reason to
believe (A) that the Registration Statement or any amendment thereto (except for
the financial statements and related schedules and statistical data included
therein or omitted therefrom or Underwriters' Information, as to which such
counsel need express no opinion), at the time the Registration Statement or any
such amendment became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (B) that the Prospectus or any
amendment or supplement thereto and the documents incorporated therein by
reference (except for the financial statements and related schedules and
statistical data included therein or omitted therefrom or Underwriters'
Information, as to which such counsel need express no opinion), at the time the
Registration Statement became effective (or, if the term "Prospectus" refers to
the prospectus first filed pursuant to Rule 424(b) of the 1933 Act Regulations,
at the time the Prospectus was issued), at the time any such amended or
supplemented Prospectus was issued, at the Closing Date and, if applicable, the
Option Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (C) that there is
any amendment to the Registration Statement required to be filed that has not
already been filed.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust Act
and, under the Trust Agreement and the Delaware Business Trust Act, has the
trust power and authority to conduct its business as described in the
Prospectus.
(ii) The Trust Agreement is a legal, valid and binding
agreement of the Trust and the Trustees, and is enforceable against the
Trust and the Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business
Trust Act, the execution and delivery of the Underwriting Agreement by the
Trust, and the performance by the Trust of its obligations thereunder, have
been authorized by all requisite trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been duly
authorized by the Trust Agreement, and when issued and sold in accordance
with the Trust Agreement, the Designated Preferred Securities will be,
subject to the qualifications set forth in paragraph (v) below, fully paid
and nonassessable beneficial interest in the assets of the Trust and
entitled to the benefits of the Trust Agreement. The form of certificates
to
27
evidence the Designated Preferred Securities has been approved by the Trust
and is in due and proper form and complies with all applicable
requirements.
(v) Holders of Designated Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same limitation of
personal liability extended to shareholders of private, for-profit
corporations organized under the General Corporation Law of the State of
Delaware. Such opinion may note that the holders of Designated Preferred
Securities may be obligated to make payments as set forth in the Trust
Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is not
subject to preemptive rights.
(vii) The issuance and sale by the Trust of the Designated
Preferred Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate (a) the Trust
Agreement, or (b) any applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(f) ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇., counsel for the Underwriters,
shall have furnished you their signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, with respect to the sufficiency of all
corporate procedures and other legal matters relating to this Agreement, the
validity of the Designated Preferred Securities, the Registration Statement, the
Prospectus and such other related matters as you may reasonably request and
there shall have been furnished to such counsel such documents and other
information as they may request to enable them to pass on such matters. In
giving such opinion, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇. may rely as to matters of fact
upon statements and certifications of officers of the Offerors and of other
appropriate persons and may rely as to matters of law, other than law of the
United States and the State of Missouri, upon the opinions of ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President - Legal of the Company, and
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representative shall have received
from PricewaterhouseCoopers LLP a letter, dated the date of this Agreement and
the Closing Date (and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Representative, confirming that they are
independent public accountants with respect to Company, within the meaning of
the 1933 Act and the 1933 Act Regulations, and stating in effect that:
28
(i) In their opinion, the consolidated financial statements of
the Company audited by them and included or incorporated by reference in
the Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act, the 1934 Act, the
1933 Act Regulations and the 1934 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to their attention that caused them to believe
that, if applicable, the unaudited interim consolidated financial
statements of the Company included or incorporated by reference in the
Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act, the 1934 Act,
the 1933 Act Regulations and the 1934 Act Regulations or are not in
conformity with U.S. generally accepted accounting principles applied on a
basis substantially consistent, except as noted in the Registration
Statement, with the basis for the audited consolidated financial statements
of the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements of the Company included or incorporated by
reference in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
(A) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the consolidated
capital stock of the Company, any increase in the consolidated debt of the
Company or any decrease in the consolidated shareholders equity of the Company,
in each case as compared with amounts shown in the latest unaudited interim
consolidated statement of financial condition of the Company included or
incorporated by reference in the Registration Statement except in each case for
changes, increases or decreases which the Registration Statement specifically
discloses, have occurred or may occur or which are described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements included or incorporated by reference
in the Registration Statement to the specified date referred to in Clause
(iii)(A), there were any decreases in the consolidated net income of the Company
or in the per share amount of net income of the Company as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Underwriters, except in each case for
increases
29
or decreases which the Registration Statement discloses have occurred or may
occur, or which are described in such letter.
(iv) In addition to the audit referred to in their report
included or incorporated by reference in the Registration Statement and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (ii) and (iii) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with U.S. generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Underwriters which are derived from the general accounting records and
consolidated financial statements of the Company which appear in the
Registration Statement specified by the Underwriters in the Registration
Statement, and have compared such amounts, percentages and financial
information with the accounting records and the material derived from such
records and consolidated financial statements of the Company have found
them to be in agreement.
In the event that the letter to be delivered on the date hereof, on the
Closing Date (and, if applicable, any Option Closing Date) referred to above set
forth any such changes, decreases or increases as specified in Clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in Clause
(iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representative shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts shown in the latest unaudited
consolidated statement of financial condition of the Company included or
incorporated by reference in the Registration Statement, (y) reflect a material
adverse change in the items specified in Clause (iii)(B) above as compared with
the corresponding periods of the prior year or other period specified by the
Representative, or (z) reflect a material adverse change in items specified in
Clause (iv) above from the amounts shown in the Preliminary Prospectus
distributed by the Underwriters in connection with the offering contemplated
hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the chief executive officer and the
chief financial and accounting officer of the Company, which certificates shall
be deemed to be made on behalf of the Company dated as of the Closing Date and,
if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2(a) hereof are accurate as of
the Closing Date and, if applicable, the Option Closing Date, and that the
Offerors have complied with all agreements and satisfied all conditions on their
part to be performed or satisfied at or prior to such Closing Date; (ii) since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material adverse change in
the condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis; (iii)
since such dates there has not been any material transaction entered into by the
Offerors or the Subsidiaries other than transactions in the ordinary course of
business; and (iv) they have carefully examined the Registration Statement and
the Prospectus as amended or supplemented and nothing has come to their
attention that would lead them to believe that either
30
the Registration Statement or the Prospectus, or any amendment or supplement
thereto as of their respective effective or issue dates, contained, and the
Prospectus as amended or supplemented at such Closing Date (and, if applicable,
the Option Closing Date), contains any untrue statement of a material fact, or
omits to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and (v) covering such other matters as you
may reasonably request. The officers' certificate of the Company shall further
state that no stop order affecting the Registration Statement is in effect or,
to their knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received a certificate of an authorized representative of the
Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date, and since
the most recent date as of which information is given in the Prospectus, except
as contemplated by the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise) of the Trust.
(j) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(k) On the Closing Date, you shall have received signed letters,
dated the date of this Agreement, from certain of the directors and officers of
the Company and stockholders of the Company designated by the Representative in
consultation with the Company to the effect that, except as otherwise agreed
with the Representative as provided therein, such persons shall not sell,
contract to sell, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or warrants or other rights to purchase
Common Stock for a period of 90 days after the date of the Prospectus without
the prior written consent of the Representative.
(l) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities and the Shares, shall not have objected to the
Underwriters' participation in such offering.
(m) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
31
If any of the conditions referred to in this Section 6 shall not have been
fulfilled when and as required by this Agreement, this Agreement and all of the
Underwriters' obligations hereunder may be terminated by you on notice to the
Company at, or at any time before, the Closing Date or the Option Closing Date,
as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. Indemnification and Contribution.
--------------------------------
(a) The Offerors agree to jointly and severally indemnify and hold
harmless each Underwriter, each of its directors, officers and agents, and each
person, if any, who controls any Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable attorney fees and expenses),
joint or several, arising out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact made by the Company or the Trust
contained in Section 2 of this Agreement (or any certificate delivered by the
Company or the Trust pursuant to Sections 6(h), 6(i) and 6(m) hereto) or the
registration statement as originally filed or the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, (ii) any blue sky application or other document executed by the Company
or the Trust specifically for that purpose or based upon written information
furnished by the Company or the Trust filed in any state or other jurisdiction
in order to qualify any of the Designated Preferred Securities under the
securities laws thereof (any such application, document or information being
hereinafter referred to as a "Blue Sky Application"), (iii) any omission or
alleged omission to state a material fact in the registration statement as
originally filed or the Registration Statement, the Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application, required to be stated therein or necessary to make the statements
therein not misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorney fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading or (iv) the enforcement of this indemnification provision
or the contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable legal or other expenses as incurred, but in
no event less frequently than 30 days after each invoice is submitted, incurred
by them in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Offerors shall not be liable in any such
case to the extent, but only to the extent, that any such losses, claims,
damages, liabilities and expenses arise out of or are based upon any untrue
statement or omission or allegation thereof that has been made therein or
omitted therefrom in reliance upon and in conformity with the "Underwriter
Information" provided, that the indemnification contained in this paragraph with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or of any person controlling any Underwriter) to the extent any
such losses, claims, damages, liabilities or expenses directly results from the
fact that such Underwriter sold Designated Preferred Securities to a person to
whom there was not sent or given, at or prior to the written confirmation of
such
32
sale, a copy of the Prospectus (as amended or supplemented if any amendments or
supplements thereto shall have been furnished to you in sufficient time to
distribute same with or prior to the written confirmation of the sale involved),
if required by law, and if such loss, claim, damage, liability or expense would
not have arisen but for the failure to give or send such person such document.
The foregoing indemnity agreement is in addition to any liability the Company or
the Trust may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each Offeror, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls an
Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters Information or information related to any
Underwriter furnished in writing to an Offeror through such Underwriter by or on
its behalf expressly for use in a Blue Sky Application. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to any such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified party and controlling persons, which firm shall be designated
in writing by the indemnified party (and, if such indemnified parties are
Underwriters, by you, as Representative). Each indemnified party and each
controlling person, as a condition of such indemnity, shall use reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. The indemnifying party shall not be liable for any settlement
of any such action effected without its
33
written consent, but if there shall be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of each
indemnified party, settle, compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnity may be sought hereunder (whether or not such indemnified party or any
person who controls such indemnified party within the meaning of the 1933 Act is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes a release of each such indemnified party
reasonably satisfactory to each such indemnified party and each such controlling
person from all liability arising out of such claim, action, suit or proceeding
or unless the indemnifying party shall confirm in a written agreement with each
indemnified party, that notwithstanding any federal, state or common law, such
settlement, compromise or consent shall not alter the right of any indemnified
party or controlling person to indemnification or contribution as provided in
this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any
34
such action or claim. Notwithstanding the provisions of this paragraph (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Designated Preferred Securities
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriters has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this paragraph (d), each person who controls an Underwriter
within the meaning of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each person who controls an Offeror within the meaning of
the 1933 Act, each officer and trustee of an Offeror who shall have signed the
Registration Statement and each director of an Offeror shall have the same
rights to contribution as the Offerors subject in each case to the preceding
sentence. The obligations of the Offerors under this paragraph (d) shall be in
addition to any liability which the Offerors may otherwise have and the
obligations of the Underwriters under this paragraph (d) shall be in addition to
any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling an Underwriter or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror), (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. Termination.
-----------
You shall have the right to terminate this Agreement at any time at or
prior to the Closing Date or, with respect to the Underwriters' obligation to
purchase the Option Preferred Securities, at any time at or prior to the Option
Closing Date, without liability on the part of the Underwriters to the Offerors,
if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree which in the judgment of the
Representative materially impairs the investment quality of the Designated
Preferred Securities;
35
(c) There has been since the respective dates as of which information
is given in the Registration Statement or the Prospectus, any materially adverse
change in, or any development which in your judgment is reasonably likely to
have a material adverse effect on, the condition (financial or otherwise),
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, whether or not arising in the ordinary
course of business;
(d) There has occurred any outbreak or escalation of hostilities or
other calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Designated Preferred Securities or enforce
contracts for the sale of the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or The Nasdaq Stock Market's National Market shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority; or
(f) A banking moratorium shall have been declared by either federal
or Indiana authorities; or
(g) Any action shall have been taken by any government in respect of
its monetary affairs which, in your reasonable judgment, has a material adverse
effect on the United States securities markets so as to make it, in your
reasonable judgment, impracticable to market the Designated Preferred Securities
or enforce contracts for the sale of the Designated Preferred Securities.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. Default of Underwriters.
-----------------------
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that the non-defaulting Underwriters shall be under no
obligation to purchase such Designated Preferred Securities if the aggregate
number of Designated Preferred Securities to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments set
forth in Schedule I hereto, and provided further, that no non-defaulting
Underwriter shall be obligated to purchase Designated Preferred Securities to
the extent that the number of such Designated Preferred Securities is more than
110% of such Underwriter's underwriting commitment set forth in Schedule I
hereto.
In the event that the non-defaulting Underwriters are not obligated under
the above paragraph to purchase the Designated Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representative may in its discretion arrange for
36
one or more of the Underwriters or for another party or parties to purchase such
Designated Preferred Securities on the terms contained herein. If within one
business day after such default the Representative does not arrange for the
purchase of such Designated Preferred Securities, then the Company shall be
entitled to a further period of one business day within which to procure another
party or parties satisfactory to the Representative to purchase such Designated
Preferred Securities on such terms.
In the event that the Representative or the Company do not arrange for the
purchase of any Designated Preferred Securities to which a default relates as
provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
10. Effective Date of Agreement.
---------------------------
If the Registration Statement is not effective at the time of execution of
this Agreement, this Agreement shall become effective on the Effective Date at
the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of this
Agreement, this Agreement shall become effective at the earlier of 11:00 a.m.
St. Louis time, on the first full business day following the day on which this
Agreement is executed, or at such earlier time as the Representative shall
release the Designated Preferred Securities for initial public offering. The
Representative shall notify the Offerors immediately after it has taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may be
terminated by the Offerors, by notifying you or by you, as Representative of the
several Underwriters, by notifying either Offeror, except that the provisions of
Sections 5 and 7 shall at all times be effective.
11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
37
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters and shall survive delivery of and payment for the Designated
Preferred Securities.
12. Notices.
-------
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of telecommunication and
confirmed. Notices to Offerors shall be sent to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (with a copy to Vedder, Price,
▇▇▇▇▇▇▇ & Kammholz, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇) and notices to the Underwriters shall be sent to
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇, Esq.). In all dealings with the Company under this
Agreement, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated shall act as representative
of and on behalf of the several Underwriters, and the Company shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
the Underwriters, made or given by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated on
behalf of the Underwriters, as if the same shall have been made or given in
writing by the Underwriters.
13. Parties.
-------
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person controlling the Offerors or the
Underwriters, and their respective successors and assigns. No other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, in his status as such
purchaser, from the Underwriters of the Designated Preferred Securities.
38
14. Governing Law.
-------------
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. Counterparts.
------------
This Agreement may be executed in one or more counterparts, and when a
counterpart has been executed by each party hereto all such counterparts taken
together shall constitute one and the same Agreement.
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
▇▇▇▇▇ FINANCIAL CORPORATION
By: _______________________________
Name:______________________________
Title:_____________________________
ATTEST:
By:________________________________
Name:______________________________
Title:_____________________________
IFC CAPITAL TRUST III
By:________________________________
Name:______________________________
Title:_____________________________
CONFIRMED AND ACCEPTED,
as of [__________], 2000.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By:_____________________________
39
Name:___________________________
Title:__________________________
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
40
SCHEDULE I
----------
Underwriter Number of Shares
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
EXHIBIT A
---------
LIST OF SUBSIDIARIES
▇▇▇▇▇ Union Bank and Trust Company
▇▇▇▇▇ Union Collateral, Inc.
▇▇▇▇▇ Union Realty Corporation
▇▇▇▇▇ Union Insurance, Inc.
▇▇▇▇▇ Mortgage Corporation
White River Capital Corporation
▇▇▇▇▇ Union Credit Insurance Corporation
▇▇▇▇▇ Home Equity Corporation
IHE Funding Corp.
▇▇▇▇▇ Union Investor Services, Inc.
▇▇▇▇▇ Union Advisory Services, Inc.
▇▇▇▇▇ Union Securities, Inc.
IFC Capital Trust I
IFC Capital Trust II
IFC Capital Trust III
▇▇▇▇▇ Business Finance Corporation
IFC Mortgage Corporation
▇▇▇▇▇ Equipment Finance Corp.
▇▇▇▇▇ Ventures Incorporated
▇▇▇▇▇ Ventures Incorporated-SBIC
▇▇▇▇▇ Leasing Corporation
▇▇▇▇▇ Reinsurance Corporation
▇▇▇▇▇ Funding Corp.
▇▇▇▇▇ Funding Corp. II
▇▇▇▇▇ International Corporation
Onset Capital Corporation