Exhibit 1
2,000,000 SHARES*
GOLD BANC CORPORATION, INC.
COMMON STOCK
(PAR VALUE $1.00 PER SHARE)
UNDERWRITING AGREEMENT
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____________, 1996
ADVEST, INC.
PRINCIPAL FINANCIAL SECURITIES, INC.
As Representatives of the Several Underwriters
C/O ADVEST, INC. One World Financial Center
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
Gold Banc Corporation, Inc., a Kansas corporation (the "Company"), hereby
confirms its agreement with you and the several underwriters, on whose behalf
you have been duly authorized to act as their representatives, as follows:
SECTION 1. Introduction. The Company, has authorized capital stock
consisting solely of 7,500,000 shares of preferred stock, $1.00 par value, and
7,500,000 shares of common stock, $1.00 par value (the "Common Stock"), of which
2,000,000 shares are issued and outstanding. Subject to the terms and conditions
contained in this Underwriting Agreement (this "Agreement"), the Company
proposes to issue and sell an aggregate of 2,000,000 shares of Common Stock
("Firm Shares"), to the several underwriters identified in Schedule A annexed
hereto (the "Underwriters") who are acting severally and not jointly. In
addition, the Company has agreed to grant the Underwriters an option to purchase
up to 300,000 additional shares of Common Stock (the "Optional Shares") as
provided in Section 5 hereof. The Firm Shares and, to the extent such option is
exercised, the Optional Shares, are hereinafter collectively called the
"Shares."
You, as the representatives of the several Underwriters (the
"Representatives"), have advised the Company that the Underwriters propose to
make an initial public offering of their respective portions of the Shares as
soon hereafter as in your judgment is advisable and that the initial public
offering price of the Shares will be $_____ per share.
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the several Underwriters as
follows:
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* Plus an option to acquire up to 300,000 additional shares from the Company
to cover over-allotments.
(a) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Kansas with full
power and authority (corporate and other) to own, lease, and operate its
properties and conduct its business as described in the Prospectus (as defined
in Section 2(e) of this Agreement); the Company is duly registered under the
Bank Holding Company Act of 1956, as amended (the "BHCA"); the Company has no
subsidiaries except those listed on Exhibit 21 (each a "Subsidiary" and
collectively the "Subsidiaries") to the Registration Statement (as defined in
Section 2(e) of this Agreement); the Company owns, directly or indirectly,
beneficially and of record all of the outstanding capital stock of each
Subsidiary free and clear of any claim, lien, encumbrance or security interest.
The Company and each of its Subsidiaries is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in which any of
them own or lease properties, has an office, or in which the business conducted
by any of them make such qualification necessary, except where the failure to so
qualify would not have a material adverse effect on the condition (financial or
otherwise), business, prospects, assets, properties, results of operations, or
net worth of the Company or any of the Subsidiaries ("Material Adverse Effect");
and no proceeding has been instituted in any jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.
(b) Exchange National Bank is duly organized and validly existing as
a national banking corporation and Provident Bank, f.s.b., is duly organized and
validly existing as a federal savings bank, in each case under the laws of the
United States. Citizens State Bank & Trust Co. is duly organized and validly
existing as a state banking corporation under the laws of the State of Kansas.
Each other Subsidiary is duly incorporated and validly existing as a corporation
in good standing under the laws of Missouri. Each Subsidiary has full power and
authority (corporate and other) to own, lease, and operate its properties and
conduct its business as described in the Prospectus.
(c) The issued and outstanding shares of Common Stock as set forth in
the Prospectus have been duly authorized and validly issued, are fully paid and
nonassessable, and conform to the descriptions thereof contained in the
Prospectus. All of the outstanding shares of capital stock of each Subsidiary
have been duly authorized and validly issued, are fully paid and nonassessable.
There are no preemptive, preferential, or other rights to subscribe for or to
purchase any of the shares of Common Stock and no shares of Common Stock have
been issued in violation of any such rights. Except as disclosed in the
Prospectus, there are no restrictions upon the voting or transfer of the Common
Stock pursuant to the Company's Articles of Incorporation, bylaws, and other
governing documents, or any agreement or other instrument to which the Company
or any of its Subsidiaries is a party or by which any of them may be bound. The
Shares to be sold by the Company have been duly authorized and, when issued,
delivered, and paid for pursuant to this Agreement, will be validly issued,
fully paid and nonassessable and will conform to the description thereof
contained in the Prospectus. There are no outstanding options, warrants, or
other rights of any description, contractual or otherwise, entitling any person
to receive any class of security from the Company, except as set forth in the
Prospectus, and the Common Stock has been approved for designation upon notice
of issuance as a National Market System security on the National Association of
Security Dealers, Inc. Automated Quotation System ("Nasdaq") concurrently with
the effectiveness of the Registration Statement. Except as disclosed in the
disclosure document dated August 15, 1996, prepared by the Company in connection
with its recently completed rescission offer, a copy of which was provided to
the Representatives, all of the securities previously issued by the Company and
each of its Subsidiaries, including the Common Stock and any warrants and stock
options to purchase Common Stock, were duly offered, sold, issued or granted and
were made in compliance with, and were registered under or exempt from the
registration requirements of, the
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Securities Act of 1933, as amended (the "Act"), and were duly registered or
qualified under, or the subject of an available exemption from, the registration
provisions of all applicable state securities laws ("Blue Sky Laws"). No
document distributed to prospective security holders in connection with any such
offer, sale or issuance of any securities of the Company or any of its
Subsidiaries contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(d) Neither the Company nor any of its Subsidiaries, is, or with the
giving of notice or lapse of time or both will be, in violation or breach of, or
in default under, nor will the execution or delivery of, or the performance and
consummation of the transactions contemplated by this Agreement (including the
offer, sale, or delivery of the Shares), conflict with, or result in a violation
or breach of, or constitute a default under, any provision of the Articles of
Incorporation, bylaws (as amended or restated), or other governing documents of
the Company or any of its Subsidiaries, or of any provision of any agreement,
contract, mortgage, deed of trust, lease, loan agreement, indenture, note, bond,
or other evidence of indebtedness, or other material agreement or instrument to
which the Company or any Subsidiary is a party or by which any of them is bound
or to which any of their properties is subject, nor will the performance by the
Company of its obligations hereunder violate any rule, regulation, order, or
decree, applicable to the Company or any Subsidiary of any court or any
regulatory body, administrative agency, or other governmental body having
jurisdiction over the Company or any Subsidiary or any of their respective
properties, or any order of any court or governmental agency or authority
entered in any proceeding to which the Company or any Subsidiary was or is now a
party or by which it is bound, except those, if any, described in the Prospectus
or which are not material to the Company taken as a whole. No consent, approval,
filing, authorization, registration, qualification, or order, including with or
by any bank regulatory agency, is required for the execution, delivery, and
performance of this Agreement or the consummation of the transactions
contemplated by this Agreement, other than such that have been obtained or made,
except for compliance with the Act, the Securities Exchange Act of 1934, as
amended ("Exchange Act"), and the Blue Sky Laws applicable to the public
offering of the Shares by the several Underwriters, the clearance of such
offering and the underwriting arrangements evidenced hereby with the National
Association of Securities Dealers, Inc. ("NASD"), and the listing of the Common
Stock on the Nasdaq Stock Market. This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company and is enforceable against the Company in accordance
with the terms.
(e) A registration statement on Form SB-2 (File No. 333-12377) with
respect to the Shares, including a form of preliminary prospectus, has been
carefully prepared by the Company in conformity with the requirements of the Act
and the rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission ("Commission") promulgated thereunder, and has been filed
with the Commission. The Company has prepared and filed such amendments thereto,
if any, and such amended preliminary prospectus as may have been required to the
date hereof, and will file such additional amendments thereto and such amended
preliminary prospectuses as may hereafter be required. There have been delivered
to each of the Representatives two signed copies of such registration statement,
including Part II thereof, and each amendment thereto, if any, together with two
copies of each exhibit filed therewith, and conformed copies for each of the
Underwriters of such registration statement and each amendment thereto, if any
(but without exhibits), and of the related preliminary prospectus ("Preliminary
Prospectus") and of the Prospectus. Such registration statement has been
declared effective by the Commission under the Act and is not proposed to be
amended. Such registration statement, as finally amended and revised at the time
such registration statement was declared effective by the
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Commission (including the Prospectus and the information contained in the form
of final prospectus filed with the Commission pursuant to Rule 424(b) and Rule
430A under the Act, and Part II and all financial statements and exhibits
thereto), is herein referred to as the "Registration Statement" and the related
final prospectus in the form first filed with the Commission pursuant to Rule
424(b) is herein referred to as the "Prospectus."
(f) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary Prospectus complies
with the requirements of the Act and the Rules and Regulations. As of the
effective date of the Registration Statement, and at all times subsequent
thereto up to each Closing Date (as defined in Section 5 hereof), the
Registration Statement and the Prospectus, and any amendments or supplements
thereto, contained or will contain all statements that are required to be stated
therein in accordance with the Act and the Rules and Regulations and conformed
or will conform in all respects to the requirements of the Act and the Rules and
Regulations, and neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto included or will include any untrue statement of
a material fact or omitted or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that no representation or warranty is made as to information
contained in or omitted from the Registration Statement, the Prospectus or any
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives.
(g) KPMG Peat Marwick LLP, which has audited, reviewed, and expressed
its opinion with respect to certain of the financial statements and schedules
filed with the Commission as a part of the Registration Statement and included
or to be included, as the case may be, in the Prospectus and in the Registration
Statement, and whose report is included in the Prospectus and the Registration
Statement are independent accountants as required by the Act and the Rules and
Regulations. GRA ▇▇▇▇▇▇▇▇, White & Co., which has audited, reviewed, and
expressed its opinion with respect to certain of the financial statements and
schedules filed with the Commission as a part of the Registration Statement and
included or to be included, as the case may be, in the Prospectus and in the
Registration Statement, and whose report is included in the Prospectus and the
Registration Statement were at all times during which they provided such
services to the Company, independent accountants as required by the Act and the
Rules and Regulations.
(h) The financial statements and schedules and the related notes
thereto included or to be included, as the case may be, in the Registration
Statement, the Preliminary Prospectus, and the Prospectus present fairly the
financial position of the entities purported to be shown thereby as of the
respective dates of such financial statements and schedules, and the results of
operations and changes in equity and in cash flows of the entities purported to
be shown thereby for the respective periods covered thereby, all in conformity
with generally accepted accounting principles consistently applied throughout
the periods involved, except as may be disclosed in the Prospectus. All
adjustments necessary for a fair presentation of the results of such periods
have been made. The Company had an outstanding capitalization as set forth under
"Capitalization" in the Prospectus as of the date indicated therein and there
has been no material change therein since such date except as disclosed in the
Prospectus. The financial, operating, and statistical information set forth in
the Prospectus under captions "Prospectus Summary," "Summary Financial
Information," "Use of Proceeds," "Dividend Policy," "Capitalization," "Selected
Consolidated Financial Data," "Management's Discussion and Analysis of Financial
Condition and Results of Operations," "Business," "Management," "Principal
Stockholders," and "Description of
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Securities" are fairly presented and prepared on a basis consistent with the
audited financial statements of the Company.
(i) There is no litigation or governmental proceeding, action, or
investigation pending or, to the knowledge of the Company, threatened, to which
the Company or any Subsidiary is or may be a party or to which property owned or
leased by the Company or any Subsidiary is or may be subject, or related to
environmental or discrimination matters, which is required to be disclosed in
the Registration Statement or the Prospectus by the Act or the Rules and
Regulations and is not so disclosed, or which questions the validity of this
Agreement or any action taken or to be taken pursuant hereto.
(j) Either the Company or a Subsidiary, as the case may be, has good
and marketable title in fee simple to all items of real property and good and
marketable title to all the personal properties and assets reflected as owned by
the Company or a Subsidiary in the Prospectus (or elsewhere in the Registration
Statement), in each case clear of all liens, mortgages, pledges, charges, or
encumbrances of any kind or nature except those, if any, reflected in the
financial statements described above (or elsewhere in the Registration
Statement) or which are not material to the Company or any Subsidiary; all
properties held or used by the Company or a Subsidiary under leases, licenses,
franchises or other agreements are held by them under valid, existing, binding,
and enforceable leases, franchises, licenses, or other agreements with respect
to which it is not in default.
(k) Neither the Company nor any Subsidiary has taken or will take,
directly or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation, under the Exchange Act or otherwise, of the price
of the Common Stock.
(l) Except as reflected in or contemplated by the Registration
Statement, since the respective dates as of which information is given in the
Registration Statement and prior to the First Closing Date and Second Closing
Date (as such terms are hereinafter defined):
(i) neither the Company nor any of its Subsidiaries has or
will have incurred any material liabilities or obligations, direct or
contingent, or entered into any material transaction not in the ordinary course
of business;
(ii) neither the Company nor any Subsidiary has or will have
paid or declared any dividend or other distribution with respect to its capital
stock and neither the Company nor any Subsidiary has or will be delinquent in
the payment of principal or interest on any outstanding debt obligations; and
(iii) there has not been and will not be any change in the
capital stock (except as may result from the First Closing) or any material
change in the indebtedness of the Company or any Subsidiary, or any adverse
change in the condition (financial or otherwise), or any development involving a
prospective adverse change in their respective businesses (resulting from
litigation or otherwise), prospects, properties, condition (financial or
otherwise), net worth, or results of operations which is material to the Company
or any Subsidiary.
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(m) There is no contract or other document, transaction, or
relationship required to be described in the Registration Statement, or to be
filed as an exhibit to the Registration Statement, by the Act or by the Rules
and Regulations that has not been described or filed as required.
(n) All documents delivered or to be delivered by the Company or any
of its representatives in connection with the issuance and sale of the Shares
were on the dates on which they were delivered, or will be on the dates on which
they are to be delivered, true, complete, and correct in all material respects.
(o) The Company and each Subsidiary have filed all necessary federal
and all state and foreign income and franchise tax returns and paid all taxes
shown as due thereon; and no tax deficiency has been asserted or threatened
against the Company or any Subsidiary that would have a Material Adverse Effect,
except as described in the Prospectus.
(p) Neither the Company nor any Subsidiary has, directly or
indirectly, at any time:
(i) made any unlawful contribution to any candidate for
political office, or failed to disclose any contribution in violation of law;
or
(ii) made any payment to any federal, state, local, or foreign
government officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the laws of
the United States or any jurisdiction thereof or applicable foreign
jurisdictions.
(q) There are no holders of Common Stock or other securities of the
Company having rights to registration thereof under the Act.
(r) The Company or a Subsidiary owns or possesses adequate rights to
use all patents, patent applications, trademarks, service marks, trade names,
trademark registrations, servicemark registrations, copyrights, and licenses
necessary for the conduct of the business of the Company and the Subsidiaries or
ownership of their respective properties, and neither the Company nor any
Subsidiary has received notice of conflict with the asserted rights of others in
respect thereof which has not been resolved.
(s) The Company and each Subsidiary have in place and effective such
policies of insurance, with limits of liability in such amounts, as are normal
and prudent in the ordinary scope of business similar to that of the Company and
such Subsidiary in the respective jurisdiction in which they conduct business.
(t) The Company and each Subsidiary have and hold, and at each
Closing Date will have and hold, and are operating in compliance with, and have
fulfilled and performed all of their material obligations with respect to all
permits, certificates, franchises, grants, easements, consents, licenses,
approvals, charters, registrations, authorizations, and orders ("Permit")
required under all laws, rules, and regulations in connection with their
respective businesses, and all of such Permits are in full force and effect; and
there is no pending proceeding, and neither the Company nor any Subsidiary has
received notice of any threatened proceeding, relating to the revocation or
modification of any such Permit. Neither the Company nor any Subsidiary is or
has been (by virtue of any action, omission to
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act, contract to which it is a party or by which it is bound, or any occurrence
or state of facts whatsoever) in violation of any applicable federal, state,
municipal, or local statutes, laws, ordinances, rules, regulations, and/or
orders issued pursuant to foreign, federal, state, municipal, or local statutes,
laws, ordinances, rules, or regulations (including those relating to any aspect
of banking, bank holding companies, environmental protection, occupational
safety and health, and equal employment practices) heretofore or currently in
effect, except such violation that has been fully cured or satisfied without
recourse or that is not reasonably likely to have a Material Adverse Effect.
(u) The provisions of any employee pension benefit plan ("Pension
Plan") as defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), in which the Company or any Subsidiary is a
participating employer are in substantial compliance with ERISA, and neither the
Company nor any Subsidiary is in violation of ERISA. The Company, each
Subsidiary, or the plan sponsor thereof, as the case may be, has duly and timely
filed the reports required to be filed by ERISA in connection with the
maintenance of any Pension Plans in which the Company or any Subsidiary is a
participating employer, and no facts, including any "reportable event" as
defined by ERISA and the regulations thereunder, exist in connection with any
Pension Plan in which the Company or any Subsidiary is a participating employer
which might constitute grounds for the termination of such plan by the Pension
Benefit Guaranty Corporation or for the appointment by the appropriate U.S.
District Court of a trustee to administer any such plan. The provisions of any
employee benefit welfare plan, as defined in Section 3(1) of ERISA, in which the
Company or any Subsidiary is a participating employer, are in substantial
compliance with ERISA, and the Company, any Subsidiary, or the plan sponsor
thereof, as the case may be, has duly and timely filed the reports required to
be filed by ERISA in connection with the maintenance of any such plans.
(v) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, and is not subject to regulation
under such Act.
(w) The Company is a member in good standing of the Federal Reserve
System and the deposits of each bank or savings bank Subsidiary are insured by
the Federal Deposit Insurance Corporation ("FDIC").
(x) Neither this Agreement nor any certificate, statement or other
document delivered or to be delivered by the Company or any Subsidiary contains
or will contain any untrue statement of a material fact or omits or will omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(y) The Company has satisfied the conditions for the use of Form SB-2
with respect to the offering of the Shares for sale to the public.
Any certificate signed by any director or officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty of the Company to the Underwriters as to
the matters covered thereby.
Any certificate delivered by the Company to its counsel for purposes of
enabling such counsel to render the opinion referred to in Section 8(d) will
also be furnished to the Representatives and counsel
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for the Underwriters and shall be deemed to be additional representations and
warranties to the Underwriters by the Company as to the matters covered thereby.
SECTION 3. Representatives of the Underwriters. The Representatives will
act as the representatives for the several Underwriters in connection with this
financing, and any action under or in respect of this Agreement taken by the
Representatives or by Advest, Inc. on behalf of the Representatives will be
binding upon all of the Underwriters.
SECTION 4. Representations and Warranties of the Underwriters. The
Representatives, on behalf of the several Underwriters, represent and warrant
to the Company that the information set forth (a) in the last paragraph of the
cover page of the Prospectus, (b) on the inside front cover page of the
Prospectus relating to stabilization, and (c) in the section in the Prospectus
entitled "Underwriting," was the only written information furnished to the
Company by and on behalf of any Underwriter expressly for use in connection with
the preparation of the Registration Statement, and is correct and complete in
all material respects and does not include any 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 not misleading.
SECTION 5. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties, and agreements contained herein, but subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, that number of Firm Shares set forth
opposite the name of such Underwriter in Schedule A at the purchase price of
$_____ per Share.
At 9:00 a.m., eastern time, on the third full business day following the
commencement of the initial public offering contemplated by this Agreement, or
at such other time not later than five (5) full business days following the date
of this Agreement, as the Representatives and the Company may agree, the Company
will deliver to the Representatives through the facilities of The Depository
Trust Company ("DTC"), or at the offices of Advest, Inc., One World Financial
Center, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other location as
specified by the Representatives, for the accounts of the several Underwriters,
certificates representing the Firm Shares to be sold by them, against payment in
New York, New York, or such other location agreed upon by the parties, of the
purchase price therefor in next day funds payable to the order of the Company
for Firm Shares. Such time of delivery and payment is referred to in this
Agreement as the "First Closing Date." The certificates for Firm Shares to be
so delivered shall be in definitive form and shall be registered in such names
and in such denominations as the Representatives shall request by written notice
to the Company at least two business days prior to the First Closing Date. The
Company agrees to make such certificates available for inspection at least
twenty-four (24) hours prior to the First Closing Date at the offices of the
DTC, or its designated custodian, or at any other location designated by the
Representatives.
In addition, on the basis of the representations, warranties, and
agreements contained herein, but subject to the terms and conditions set forth
herein, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, from the Company up to 300,000 Optional
Shares in the same proportion as the number of shares set forth opposite their
names on Schedule A bears to the total number of Firm Shares, at the same
purchase price per share to be paid for the Firm Shares, for use solely in
covering any over-allotments made by the Underwriters in the sale and
distribution of the Firm Shares. The option granted hereunder may be exercised
at any time (but not more than once) within thirty (30) days after the date of
this Agreement, upon notice by the Representatives to the Company which sets
forth the aggregate number of Optional Shares as to which the Underwriters are
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exercising the option, the names and denominations in which the certificates for
such shares are to be registered, and the time and place at which such
certificates will be delivered. Such time of delivery may not be earlier than
the First Closing Date and herein is called the "Second Closing Date." The
Second Closing Date shall be determined by the Representatives, but if at any
time other than the First Closing Date, shall not be earlier than three nor
later than five full business days after delivery of such notice to exercise.
Certificates for the Optional Shares will be made available for inspection at
least 24 hours prior to the Second Closing Date at the offices of the DTC, or
its designated custodian, or at such other location as specified by the
Representatives. The manner of payment for and delivery of (including the
denominations of and the names in which certificates are to be registered) the
Optional Shares shall be the same as for the Firm Shares as specified in this
Section 5.
The Representatives have advised the Company that each Underwriter has
authorized the Representatives to accept delivery of its Shares and to make
payment therefor. It is understood that either of the Representatives,
individually and not as representatives of the Underwriters, may (but shall not
be obligated to) make payment for any Shares to be purchased by any Underwriter
whose funds shall not have been received by the Representatives by the First
Closing Date or the Second Closing Date, as the case may be, for the account of
such Underwriter, but any such payment shall not relieve such Underwriter from
any obligation under this Agreement.
SECTION 6. Agreements of the Company. The Company covenants and agrees
with each of the several Underwriters that:
(a) If any information shall have been omitted from the Registration
Statement in reliance upon Rule 430A, the Company, at the earliest possible
time, will furnish the Representatives with a copy of the Prospectus to be filed
by the Company with the Commission to comply with Rule 424(b) and Rule 430A
under the Act, and, if the Representatives do not object to the contents
thereof, will file such Prospectus with the Commission in compliance with such
Rules. Upon compliance with such Rules, the Company will so advise the
Representatives promptly. The Company will advise the Representatives and
counsel to the Underwriters promptly of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, or of any notification of the
suspension of qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceedings for that purpose. The Company also
will advise the Representatives and counsel to the Underwriters promptly of any
request of the Commission for amendment or supplement of the Registration
Statement, of any Preliminary Prospectus, or of the Prospectus, or for
additional information, and the Company will not file any amendment or
supplement to the Registration Statement (either before or after it becomes
effective), to any Preliminary Prospectus, or to the Prospectus (including a
prospectus filed pursuant to Rule 424(b)) if the Representatives have not been
furnished with a copy prior to such filing or if the Representatives reasonably
object to such filing.
(b) During the time during which a Prospectus relating to the Shares
is required to be delivered under the Act, the Company shall comply with all
requirements imposed on it by the Act, as now and hereafter amended, and by the
Rules and Regulations, as from time to time in force, so far as is necessary to
permit the continuance of sales or dealings in the Shares as contemplated by the
provisions hereof and the Prospectus. If any event occurs as a result of which
the Prospectus, including any subsequent amendment or supplement, would include
an untrue statement of a material fact, or would omit 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 if
it becomes necessary
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at any time to amend the Prospectus, including any amendment or supplement
thereto, to comply with the Act, the Company promptly will advise the
Representatives and counsel to the Underwriters thereof and will promptly
prepare and file with the Commission an amendment or supplement that will
correct such statement or omission or an amendment that will effect such
compliance; and, if any Underwriter is required to deliver a prospectus nine (9)
months or more after the effective date of the Registration Statement, the
Company, upon request of the Representatives but at the expense of such
Underwriter, will prepare promptly such prospectus or prospectuses as may be
necessary to permit compliance with the requirements of Section 10(a)(3) of the
Act.
(c) The Company will not, prior to the Second Closing Date or thirty
(30) days after the date of this Agreement, whichever occurs first, incur any
material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, or any
transaction with a related party which is required to be disclosed in the
Prospectus pursuant to Item 404 of Regulation S-B under the Act, except as
contemplated by the Prospectus.
(d) The Company will not acquire any of the Common Stock before the
Second Closing Date or thirty (30) days after the date of this Agreement,
whichever occurs first, nor will the Company declare or pay any dividend or make
any other distribution upon its Common Stock payable to stockholders of record
on a date prior to such date.
(e) The Company will make generally available to its security holders
and the Representatives an earnings statement of the Company as soon as
practicable, but in no event later than fifteen (15) months after the end of the
Company's current fiscal quarter, covering a period of twelve (12) consecutive
calendar months beginning after the effective date of the Registration
Statement, but beginning not later than four months after such effective date,
which will satisfy the provisions of the last subsection of Section 11(a) of the
Act and Rule 158 promulgated thereunder.
(f) During such period as a prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, the Company will
furnish to the Representatives, at the expense of the Company, copies of the
Registration Statement, the Prospectus, any Preliminary Prospectus, and all
amendments and supplements to any such documents in each case as soon as
available and in such quantities as the Representatives may reasonably request,
for the purposes contemplated by the Act.
(g) The Company shall take or cause to be taken in cooperation with
the Representatives and counsel to the Underwriters all actions required in
qualifying or registering the Shares for sale under the Blue Sky Laws of such
jurisdictions as the Representatives may reasonably designate, provided the
Company shall not be required to qualify generally as a foreign corporation or
to consent generally to the service of process under the law of any such state
(except with respect to the offering and sale of the Shares), and will continue
such qualifications or registrations in effect so long as reasonably requested
by the Representatives to effect the distribution of the Shares (including,
without limitation, compliance with all undertakings given pursuant to such
qualifications or registrations). In each jurisdiction where any of the Shares
shall have been qualified as provided above, the Company will file such reports
and statements as may be required to continue such qualification for a period of
not less than one year from the date of this Agreement.
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(h) The Company will furnish to its security holders annual reports
containing financial statements audited by independent public accountants and
quarterly reports containing financial statements and financial information
which may be unaudited. During the period ending five years after the date of
this Agreement, (i) as soon as practicable after the end of the fiscal year, the
Company will furnish to the Representatives two copies, and to each of the other
Underwriters who may so request, one copy, of the annual report of the Company
containing the consolidated balance sheet of the Company as of the close of such
fiscal year and corresponding consolidated statements of earnings, stockholders'
equity, and cash flows for the year then ended, such consolidated financial
statements to be under the certificate or opinion of the Company's independent
accountants, and (ii) the Company will file promptly and will furnish to the
Representatives at or before the filing thereof copies of all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Sections 13, 14, or 15 of the Exchange Act.
During such five-year period the Company also will furnish to the
Representatives one copy of the following:
(i) as soon as practicable after the filing thereof, each
other report, statement, or other document filed by the Company with the
Commission;
(ii) as soon as practicable after the filing thereof, all
reports, statements, other documents, and financial statements furnished by the
Company to Nasdaq pursuant to requirements of or agreements with Nasdaq; and
(iii) as soon as available, each report, statement, or other
document of the Company mailed to its stockholders.
(i) The Company will use its best efforts to satisfy or cause to be
satisfied the conditions to the obligations of the Underwriters in Section 8
hereof.
(j) The Company shall deliver the requisite notice of issuance to the
NASD and shall take all necessary or appropriate action within its power to
maintain the authorization for trading of the Common Stock on the Nasdaq Stock
Market for a period of at least thirty-six (36) months after the date of this
Agreement.
(k) The Company shall prepare and timely file with the Commission,
from time to time, such reports as may be required by the Rules and Regulations.
(l) The Company shall comply in all respects with the undertakings
given by the Company in connection with the qualification or registration of the
Shares for offering and sale under the Blue Sky Laws.
(m) The Company shall apply the net proceeds from the sale of the
Shares to be sold by it hereunder in the manner and for the purposes specified
under the heading "Use of Proceeds" in the Prospectus. The Company shall file,
and will furnish or cause to be furnished to the Representative and counsel to
the Underwriters copies of all reports as may be required in accordance with
Rule 463 under the Act.
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(n) The Company shall supply the Representatives and counsel to the
Underwriters, at the Company's cost, four copies of a bound volume of the
Offering and Underwriting materials within a reasonable time after the Closing
Date.
(o) Except for the sale of Common Stock pursuant to this Agreement,
and the granting of options for up to 75,000 shares of Common Stock pursuant to
the Company's Incentive Compensation Plan, neither the Company nor any of its
Subsidiaries shall, directly or indirectly, offer, sell, contract to sell,
issue, distribute, grant any option, right, or warrant to purchase or otherwise
dispose of any shares of Common Stock or securities convertible into, or
exercisable, or exchangeable for shares of Common Stock, in the open market or
otherwise, for a period of one-hundred eighty (180) days after the later of the
effective date of the Registration Statement or the date of this Agreement,
without the express prior written consent of the Representatives.
(p) The Company shall cause each person listed in the table in the
Prospectus under the heading "Security Ownership of Certain Beneficial Owners
and Management" to furnish to the Representatives, on or before the date of this
Agreement, a letter or letters, in form and substance satisfactory to counsel
for the Underwriters, pursuant to which each such person shall agree not to
offer for sale, contract to sell, sell, distribute, grant any option, right or
warrant to purchase, pledge, hypothecate, or otherwise dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into, or
exercisable or exchangeable for, shares of Common Stock for a period of one
hundred eighty (180) days following the effective date of the Registration
Statement, except with the express prior written consent of the Representatives.
SECTION 7. Payment of Expenses and Fees.
----------------------------
(a) Whether or not the transactions contemplated hereunder are
consummated, or if this Agreement is terminated for any reason, the Company will
pay or cause to be paid the costs, fees, and expenses incurred in connection
with the initial public offering as follows:
(i) All costs, fees, and expenses incurred in connection with
the performance of the Company's obligations hereunder, including all fees and
expenses of the Company's accountants and counsel, all costs and expenses
incurred in connection with the preparation, printing, filing, and distribution
(including delivery and shipping costs) of the Registration Statement, each
Preliminary Prospectus, and the Prospectus (including all amendments and
exhibits thereto and the financial statements therein), and agreements and
supplements provided for herein, this Agreement and other underwriting
documents, including the Agreement Among Underwriters, the Selected Dealer
Agreement, the Underwriters' Questionnaire, various Underwriters' letters, and
the Preliminary and Supplemental Blue Sky Memoranda.
(ii) All filing and registration fees and expenses, including
the legal fees and disbursements of counsel, incurred in connection with
qualifying or registering all or any part of the Shares for offer and sale under
the Blue Sky Laws.
(iii) All fees and expenses of the Company's transfer agent, the
cost of printing the certificates representing the Shares, all transfer taxes,
if any, and all other fees and expenses incurred in connection with the sale and
delivery of the Shares to the Underwriters.
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(iv) The filing fees of the NASD and applicable fees charged by
Nasdaq for inclusion of the Common Stock for quotation on the National Market
System, and
(v) All other costs and expenses incident to the performance
of the Company's obligations hereunder which are not otherwise provided for in
this Section 7(a).
(b) On the First Closing Date, the Company shall pay Advest, Inc.
Fifty Thousand Dollars and 00/100 ($50,000.00) as a financial advisory fee.
SECTION 8. Conditions to the Obligations of the Underwriters. The
respective obligations of the several Underwriters under this Agreement shall be
subject to the accuracy of the representations and warranties on the part of the
Company set forth herein as of the date of the First Closing Date, and if
applicable, as of the Second Closing Date, as the case may be, to the accuracy
of the statements of the Company's directors and officers, to the performance by
the Company of its obligations hereunder, and to the following additional
conditions, except to the extent expressly waived in writing by the
Representatives:
(a) The Registration Statement and all post-effective amendments
thereto shall have been declared effective by the Commission not later than 5:30
p.m. eastern time, on the date of this Agreement, or such later time as shall
have been consented to by the Representatives, but in any event not later than
5:30 p.m., eastern time, on the third full business day following the date
hereof; if the Company omitted information from the Registration Statement at
the time it became effective in reliance on Rule 430A under the Act, the
Prospectus shall have been filed with the Commission in compliance with Rule
424(b) and Rule 430A under the Act; no stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued; no proceeding for the issuance of such an order shall have been
initiated or shall be pending or, to the knowledge of the Company or the
Representatives, threatened or contemplated by the Commission; and any request
of the Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been disclosed to the
Representatives and complied with to the Representatives' satisfaction.
(b) The Shares shall have been qualified or registered for sale, or
subject to an available exemption from such qualification or registration, under
the Blue Sky Laws of such jurisdictions as shall have been reasonably specified
by the Representatives and the offering shall have been cleared by the NASD.
(c) Since the dates as of which information is given in the
Registration Statement:
(i) There shall not have been any adverse change, or any
development involving a prospective material adverse change, in the ability of
the Company or any Subsidiary to conduct their respective businesses (whether by
reason of any court, legislative, other governmental action, order, decree, or
otherwise), or in the general affairs, condition (financial and otherwise)
business, prospects, properties, management, financial position or earnings,
results of operations, or net worth of the Company or any Subsidiary, whether or
not arising from transactions in the ordinary course of business; and
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(ii) Neither the Company nor any Subsidiary shall have
sustained any loss or interference from any labor dispute, strike, fire, flood,
windstorm, accident, or other calamity (whether or not insured) or from any
court or governmental action, order, or decree,
the effect of which on the Company or any Subsidiary, in any such case described
in clause (c)(i) or (ii) above, is in the reasonable opinion of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Registration Statement and the
Prospectus.
(d) There shall have been furnished to the Representatives, as the
representatives of the Underwriters, on each Closing Date, except as otherwise
expressly provided below:
(i) An opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Weary & ▇▇▇▇▇▇▇▇
▇.▇. Kansas City, Missouri, counsel for the Company, in form reasonably
satisfactory to the Representatives and counsel for the Underwriters, addressed
to the Representatives as representatives of the Underwriters and dated as of
the First Closing Date or the Second Closing Date, as the case may be, to the
effect that:
(1) The Company and each Subsidiary have been duly
incorporated and are validly existing as corporations in good standing under
the laws of the jurisdiction of organization, with full corporate power and
authority to own, lease, and operate their respective properties and conduct
their respective businesses as described in the Registration Statement; the
Company and each Subsidiary are duly qualified to do business as foreign
corporations under the corporation laws of, and are in good standing as such in,
each jurisdiction in which the Company or such Subsidiary, as the case may be,
owns or leases properties, has an office, or in which business is conducted and
such qualification is required, except where the failure to so qualify would not
have a Material Adverse Effect; and the Company is duly registered and in good
standing under the BHCA; and neither the Company nor any Subsidiary is subject
to any current formal arrangements or memorandum of understanding with, or cease
and desist order by, any banking or similar regulatory agency, other than
commitments to the Federal Reserve Bank dated in 1989, as amended March 12,
1991, March 14, 1994, February 5, 1996 and February 26, 1996.
(2) The Common Stock conforms to the description thereof in
the Registration Statement;
(3) The authorized, issued and outstanding shares of Common
Stock are as set forth in the Registration Statement, have been duly authorized
and validly issued, and are fully paid and nonassessable and there are no
preemptive, preferential, or other rights to subscribe for or purchase any
shares of Common Stock or the Shares to be sold by the Company hereunder and, to
the best of such counsel's knowledge after due investigation, no shares of
Common Stock have been issued in violation of such rights; except as referred to
in the Prospectus, there are no restrictions upon the voting or transfer of the
Common Stock or the Shares pursuant to the Company's Articles of Incorporation,
bylaws, and other governing documents, or any agreement or other instrument to
which the Company or any of its Subsidiaries is a party or by which any of them
may be bound; all of the outstanding shares of capital stock of each Subsidiary
have been duly authorized and validly issued, are fully paid and nonassessable,
and are held free and clear of any lien, claim, encumbrance or security
interests, except for the security interest in favor of Boatmen's First National
Bank, N.A., which interest shall terminate immediately upon the application of
the net proceeds from the sale of the Shares as described in the Prospectus; all
offers, sales and issuances of the capital stock of the Company and its
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Subsidiaries within three years prior to the date hereof are, to the best of
such counsel's knowledge, described in Part II of the Registration Statement,
and were made in compliance with, and the offers and sales made from January
1995 through January 1996 were registered under or exempt from, the registration
requirements of the Act and were duly registered or qualified under, or the
subject of an available exemption from, the registration provisions of the
applicable Blue Sky Laws;
(4) The Shares, when delivered to the Representatives or
upon the order of the Representatives against payment therefor in accordance
with the provisions of this Agreement, will be duly authorized and validly
issued, fully paid, and nonassessable and the Underwriters will acquire good
title to the Shares sold by the Company, free and clear of any lien, claim,
encumbrance, or other security interest created by the Company;
(5) The Registration Statement and all post-effective
amendments thereto have become effective under the Act, no stop order suspending
the effectiveness of the Registration Statement has been issued and, to the best
of such counsel's knowledge, no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and all filings
required by Rule 424 and Rule 430A of the Rules and Regulations have been made;
the Registration Statement, the Prospectus, and each amendment or supplement
thereto (except for the financial statements and other statistical or financial
data included therein as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Act and the
Rules and Regulations; such counsel has participated in the preparation of the
Registration Statement and the Prospectus, including review of and discussion of
the contents thereof, and no facts have come to the attention of such counsel
which lead it to believe that either the Registration Statement, the Prospectus,
or any such amendment or supplement, as of their respective effective or issue
dates, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended or supplemented, if
applicable, as of the First Closing Date or the Second Closing Date, as the case
may be, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which made (except
for the financial statements and other statistical or financial data included
therein as to which such counsel need express no opinion). There are no
amendments to the Registration Statement required to be filed that have not been
so filed. To the best of such counsel's knowledge after due investigation, there
are no legal or governmental proceedings pending or threatened that are required
to be described in the Registration Statement that are not described as
required, nor are there any contracts or documents of a character required to be
described in the Registration Statement or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(6) The Company has full corporate power and authority to
execute, deliver, and perform this Agreement and to issue, sell, and deliver the
Shares to be sold by it to the Underwriters as provided herein; this Agreement
has been duly authorized, executed and delivered by the Company, and constitutes
a legal, valid, and binding obligation of the Company and is enforceable against
the Company in accordance with its terms, except that rights to indemnity or
contribution may be limited by federal or state securities laws and except as
enforceability of this Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally, and by equitable principles limiting the right to specific
performance or other equitable relief;
-15-
(7) Neither the Company nor any of its Subsidiaries is, or
with the giving of notice or the lapse of time or both will be, in violation or
breach of, or in default under, nor will the execution or delivery of, or
performance and consummation of the transactions contemplated by this Agreement
(including the offer, sale or delivery of the Shares) conflict with, or result
in a violation or breach of, or constitute a default under, any provision of the
Articles of Incorporation, bylaws (as amended or restated), or other governing
documents of the Company or any Subsidiary or any provision of any agreement,
contract, mortgage, deed of trust, lease, loan agreement, indenture, note, bond
or other evidence of indebtedness, or any other material agreement or instrument
to which the Company or any Subsidiary is a party or by which any of them is
bound, or to which any of their properties is subject, (in the case of any
document not filed as an exhibit to the Registration Statement, to the knowledge
of such counsel after due investigation), nor will the performance by the
Company of its obligations hereunder violate any rule, regulation, order, or
decree known to such counsel after due investigation, applicable to the Company
or any Subsidiary of any court or any regulatory body, administrative agency, or
other governmental body having jurisdiction over the Company, any Subsidiary or
any of their respective properties, or any order of any court or governmental
agency or authority entered in any proceeding to which the Company or any
Subsidiary was or is now a party or by which it is bound;
(8) To the knowledge of such counsel, there are no holders
of Common Stock or other securities of the Company with rights to have such
securities included in the Registration Statement;
(9) No consent, approval, filing, authorization,
registration, qualification, or order of or with any court or governmental
agency or body (including any bank regulatory agency) is required for the issue
and sale of the Shares or in connection with the consummation of the
transactions contemplated in this Agreement, other than such as have been
obtained or made;
(10) Neither the Company nor any Subsidiary owns any equity
interest in any corporation, joint venture, proprietorship, or other commercial
entity or organization except the Subsidiaries listed in the Registration
Statement; and the Company owns, directly or indirectly, beneficially and of
record all of the outstanding capital stock of each Subsidiary free and clear of
any claim, lien, encumbrance, or security interest, except for the security
interest in favor of Boatmen's First National Bank, N.A., which interest shall
terminate immediately upon the application of the net proceeds of the sale of
the Shares as described in the Prospectus;
(11) The Common Stock has been designated for inclusion as a
National Market System security on Nasdaq;
(12) The conditions for the use of Form SB-2 have been
satisfied with respect to the Registration Statement;
(13) Except where such failure would not be reasonably
likely to have a Material Adverse Effect, the Company and each Subsidiary have
and hold, and are in substantial compliance with, all Permits required under all
state and federal laws, rules, and regulations in connection with their
respective businesses, and all of such Permits are in full force and effect;
and, to the knowledge of such counsel after due investigation, there is no
pending proceeding, and neither the Company nor any Subsidiary has received
notice of any threatened proceeding, relating to the revocation or modification
of any such Permit. Neither the Company nor any Subsidiary is (by virtue of any
action,
-16-
omission to act, contract to which it is a party or by which it is bound, or any
occurrence or state of facts whatsoever) in violation of any applicable federal
or state laws, rules, regulations, or, to the knowledge of such counsel, orders
issued pursuant to federal or state statutes, laws, ordinances, rules, or
regulations (including those relating to any aspect of banking, bank holding
companies, environmental protection, occupational safety and health, and equal
employment practices), except any such violation that has been fully cured or
satisfied without recourse or that is not reasonably likely to have a Material
Adverse Effect;
(14) The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940 and, upon its receipt of the net proceeds from the sale of
the Shares, will not become or be deemed to be an "investment company"
thereunder; and
(15) Such counsel has reviewed all agreements, contracts,
indentures, leases, and other documents and instruments referred to in the
Registration Statement and the Prospectus and the descriptions of such documents
are fairly summarized or disclosed therein, and filed as exhibits thereto as
required and such counsel does not know, after due inquiry, of any agreements,
contracts, indentures, leases or other documents or instrument required to be so
summarized or disclosed or filed which have not been so summarized, disclosed,
or filed. The descriptions in the Registration Statement of statutes,
regulations, and legal or governmental proceedings are accurate and present
fairly the information required to be shown.
Such counsel may rely as to factual matters on certificates of officers of
the Company and of state officials and, as to legal matters in jurisdictions
other than those in which they are domiciled, on opinions of local counsel, in
each case satisfactory to the Representatives, in which case their opinion shall
state that they are so doing and copies of such certificates or opinions will be
attached to their opinion unless such certificates or opinions or the
information therein has been furnished to Representatives in other form.
(ii) Such opinion or opinions of Husch & Eppenberger, counsel
for the Underwriters, dated the First Closing Date or the Second Closing Date,
as the case may be, with respect to the incorporation of the Company, validity
of the Shares, the Registration Statement and the Prospectus, and other related
matters as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents and shall have exhibited to them
such papers and records as they reasonably request for the purpose of enabling
them to pass upon such matters.
(iii) A certificate of the chief executive officer and the
principal financial officer of the Company, dated the First Closing Date or the
Second Closing Date, as the case may be, to the effect that:
(1) The representations and warranties of the Company set
forth in Section 2 of this Agreement are true and correct as of the date of this
Agreement and as of the First Closing Date or the Second Closing Date, as the
case may be, and the Company has complied in all respects with all the covenants
and satisfied all the conditions to be performed or satisfied by it at or prior
to such Closing Date;
(2) The Commission has not issued an order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus or any
amendment thereto; no stop order
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suspending the effectiveness of the Registration Statement has been issued; and,
to the best knowledge of the respective signatories, no proceeding for that
purpose has been instituted or is pending or contemplated under the Act;
(3) Each of the respective signatories of the certificate
has carefully examined the Registration Statement, the Prospectus, and any
amendments or supplements thereto, and such documents contain all statements and
information required to be made therein, and neither the Registration Statement
nor any amendment or supplement thereto includes any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and, since the date
on which the Registration Statement was initially filed, no event has occurred
that was required to be set forth in an amended or supplemented prospectus or in
an amendment to the Registration Statement that has not been so set forth;
provided, however, that no representation need be made as to information
contained in or omitted from the Registration Statement or any amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives;
and
(4) Since the date on which the Registration Statement was
initially filed with the Commission, there has not been any material adverse
change or a development involving a prospective material adverse change in the
business, properties, financial condition, or earnings of the Company or any of
its Subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as disclosed in the Registration Statement as
heretofore amended or (but only if the Representatives expressly consents
thereto in writing) as disclosed in an amendment or supplement thereto filed
with the Commission and delivered to the Representatives after the execution of
this Agreement; since such date and except as so disclosed or in the ordinary
course of business, neither the Company nor any Subsidiary has incurred any
liability or obligation, direct or indirect, or entered into any transaction
that is material to the Company or such Subsidiary, as the case may be, not
contemplated in the Prospectus; since such date and except as disclosed there
has not been any change in the outstanding capital stock of the Company, or any
change that is material to the Company or any of its Subsidiaries in the short-
term debt or long-term debt of the Company or any Subsidiary; since such date
and except as so disclosed the Company has not acquired any Common Stock or
other capital stock of the Company nor has the Company declared or paid any
dividend or made any other distribution not expressly consented to in writing by
the Representatives, upon its outstanding Common Stock payable to stockholders
of record on a date prior to the First Closing Date or Second Closing Date, as
the case may be; since such date and except as so disclosed, neither the Company
nor any of its Subsidiaries have incurred any material contingent obligations,
and no material litigation is pending or threatened against the Company or any
Subsidiary; and, since such date and except as so disclosed, neither the Company
nor any of its Subsidiaries have sustained any material loss or interference
from any strike, fire, flood, windstorm, accident or other calamity (whether or
not insured) or from any court or governmental action, order, or decree.
(iv) At the time this Agreement is executed and also on the First
Closing Date and the Second Closing Date, as the case may be, there shall be
delivered to the Representatives a letter addressed to the Representatives, as
representatives of the Underwriters, from KPMG Peat Marwick LLP, the Company's
independent accountants, the first letter to be dated the date of this
Agreement, the second letter to be dated the First Closing Date, and the third
letter (in the event of a Second Closing) to be dated the Second Closing Date,
which shall be in form and substance reasonably satisfactory to the
Representatives and shall contain information as of a date within five days of
the date of such letter.
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There shall not have been any change set forth in any letter referred to in this
subsection (iv) that makes it impracticable or inadvisable in the judgment of
the Representatives to proceed with the public offering or purchase of the
Shares as contemplated hereby.
(v) Such further certificates and documents as the
Representatives may reasonably request (including certificates of officers of
the Company).
All such opinions, certificates, letters, and documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
to the Representatives and to Husch & Eppenberger, counsel for the Underwriters,
and the Underwriters. The Company shall furnish the Representatives with such
manually signed or conformed copies of such opinions, certificates, letters, and
documents as the Representatives may reasonably request.
(e) No Underwriter, including the Representatives, shall have advised
the Company that the Registration Statement, the Prospectus, or any amendment or
supplement thereto, contains any untrue statement of fact which, in the opinion
of the Representatives or counsel for the Underwriters, is material or omits to
state a fact which, in the opinion of the Representatives or counsel for the
Underwriters, is material and is required to be stated therein or necessary to
make the statements therein not misleading.
(f) The Common Stock shall have been designated for inclusion as a
National Market System security on Nasdaq.
All such opinions, certificates, letters, and documents shall be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Representatives and counsel for the Underwriters. The Company
shall furnish the Representatives with such conformed copies of such opinions,
certificates, letters, and documents as the Representatives shall reasonably
request. If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at either Closing Date is not so satisfied, this Agreement
at the Representatives' election will terminate upon notification to the Company
without liability on the part of any Underwriter, including the Representatives
or the Company, except for expenses to be paid by the Company pursuant to
Section 7 hereof or reimbursed by the Company pursuant to Section 9 and except
to the extent provided in Section 11.
SECTION 9. Reimbursement of Underwriters' Expenses. If the sale of the
Shares to the several Underwriters at the First Closing is not consummated
because the offering is terminated or indefinitely suspended by the Company or
by the Representatives for any reason permitted by this Agreement, other than
the Representatives' inability to legally act as Representatives, the Company
will reimburse the Representatives and the other several Underwriters for their
reasonable out-of-pocket expenses, including fees and disbursements of its
counsel, that shall have been incurred by the Representatives and the other
several Underwriters in connection with the proposed purchase and sale of the
Shares in an aggregate amount not to exceed $50,000. Any such termination or
suspension shall be without liability of any party to the other except that the
provisions of this Section 9, and Sections 7 and 11 shall remain effective and
shall apply.
SECTION 10. Maintain Effectiveness of Registration Statement. The
Representatives and the Company will use their respective best efforts to
prevent the issuance of any stop order or other such order suspending the
effectiveness of the Registration Statement and, if such stop order is issued,
to obtain the lifting thereof as soon as possible.
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SECTION 11. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act or the Exchange Act, against any losses, claims, damages,
expenses, liabilities, or actions in respect thereof ("Claims"), joint or
several, to which such Underwriter or each such controlling person may become
subject under the Act, the Exchange Act, the Rules and Regulations, Blue Sky
Laws, or other federal or state statutory laws or regulations, at common law or
otherwise (including payments made in settlement of any litigation, if such
settlement is effected with the written consent of the Company, which consent
shall not be unreasonably withheld), insofar as such Claims arise out of or are
based upon the inaccuracy or breach of any representation, warranty, or covenant
of the Company contained in this Agreement, any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto, or in any application filed under any Blue Sky Law or other document
executed by the Company for that purpose or based upon written information
furnished by the Company and filed in any state or other jurisdiction to qualify
or register any or all of the Shares under the securities laws thereof (any such
document, application, or information being hereinafter called a "Blue Sky
Application"), or arise out of or are based upon the omission or alleged
omission to state in any of the foregoing a material fact required to be stated
therein or necessary to make the statements therein not misleading. The Company
agrees to reimburse each Underwriter and each such controlling person promptly
for any legal fees or other expenses incurred by such Underwriter or any such
controlling person in connection with investigating or defending any such Claim
or appearing as a third-party witness in connection with any such Claim;
provided, however, that the Company will not be liable in any such case to the
extent that:
(i) Any such Claim arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto or in any Blue Sky Application in reliance upon
and in conformity with the written information furnished by or on behalf of the
Underwriters or the Company expressly for use therein pursuant to Section 4 of
this Agreement; or
(ii) Such statement or omission was contained or made in any
Preliminary Prospectus and corrected in the Prospectus and (1) any such Claim
suffered or incurred by any Underwriter (or any person who controls any
Underwriter) resulted from an action, claim, or suit by any person who purchased
Shares that are the subject thereof from such Underwriter in the offering, and
(2) such Underwriter failed to deliver a copy of the Prospectus (as then amended
if the Company shall have amended the Prospectus) to such person at or prior to
the confirmation of the sale of such Shares in any case where such delivery is
required by the Act, unless such failure was due to failure by the Company to
provide copies of the Prospectus (as so amended) to the Underwriters as required
by this Agreement.
(b) Each Underwriter severally, but not jointly, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of the Act or the Exchange Act, against any Claim to which
the Company, or any such director, officer, or controlling person may become
subject under the Act, the Exchange Act, the Rules and Regulations, Blue Sky
Laws, or other federal or state statutory laws or regulations, at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter and the Representatives,
which
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consent shall not be unreasonably withheld), insofar as such Claim arises out of
or is based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or in any Blue Sky
Application, or arises out of or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or in any Blue Sky Application, in reliance upon and in conformity with the
written information furnished by such Underwriter to the Company pursuant to
Section 4 of this Agreement. Each Underwriter will severally reimburse any legal
fees or other expenses reasonably incurred by the Company, or any such director,
officer, or controlling person in connection with investigating or defending any
such Claim, and from any and all Claims resulting from failure of such
Underwriter to deliver a copy of the Prospectus, if the person asserting such
Claim purchased Shares from such Underwriter and a copy of the Prospectus (as
then amended if the Company shall have amended the Prospectus) was not sent or
given by or on behalf of such Underwriter to such person, if required by law so
to have been delivered, at or prior to the written confirmation of the sale of
the Shares to such person, and if the Prospectus (as so amended) would have
cured the defect giving rise to such Claim (unless such failure was due to a
failure by the Company to provide sufficient copies of the Prospectuses (as so
amended) to the Underwriters). The indemnification obligations of each
Underwriter as provided above are in addition to any liabilities any such
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) of this Section 11 of notice of the commencement of any action in
respect of a Claim, such indemnified party will, if a Claim in respect thereof
is to be made against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof. In case any such
action is brought against any indemnified party, and such indemnified party
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in and, to the extent that it may wish,
jointly with all other indemnifying parties, similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to the
indemnified party and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties.
(d) Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election to assume the defense of
such action and upon approval by the indemnified party of counsel selected by
the indemnifying party, the indemnifying party will not be liable to such
indemnified party under subsection (a) or (b) of this Section 11 for any legal
fees or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless:
(i) the indemnified party shall have employed separate counsel
in connection with the assumption of legal defenses in accordance with the
proviso to the last sentence of subsection (c) of this Section 11 (it being
understood, however, that the indemnified party shall not be liable for the
legal fees and expenses of more than one separate counsel, approved by the
Representatives if one or more of the Underwriters or their controlling persons
are the indemnified parties);
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(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after the indemnified party's notice to the
indemnifying party of commencement of the action; or
(iii) the indemnifying party has authorized the employment of
counsel at the expense of the indemnifying party.
(e) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party or insufficient to hold harmless an
indemnified party under subsection (a) or (b) of this Section 11 in respect of
any Claim referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall, subject, to the limitations
hereinafter set forth, contribute to the amount paid or payable by such
indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares; or
(ii) if the allocation provided by clause (e)(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 (e)(i) above, but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions that resulted in such Claim,
as well as any other relevant equitable considerations.
The respective relative benefits received by the Company on the one hand
and the Underwriters on the other hand shall be deemed to be in such proportion
that the Underwriters are responsible for that portion represented by the
percentage that the amount of the underwriting discount per Share appearing on
the cover page of the Prospectus bears to the initial public offering price per
Share appearing thereon, and the Company (including the Company's directors,
officers, and controlling persons) is responsible for the remaining portion.
The relative fault of the Company on the one hand and the Underwriters on
the other hand 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
Company on the one hand or the Underwriters on the other hand and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such untrue statement or omission. The amount paid or payable by a party
as a result of the Claims referred to above shall be deemed to include, subject
to the limitations set forth in subsections (c) and (d) of this Section 11, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
(f) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 11 were determined by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method or allocation that does not take
into account the equitable considerations referred to in subsection (e) of this
Section 11. Notwithstanding the other provisions of this Section 11, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such
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Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 11 are several in proportion to their respective
underwriting commitments and not joint.
(g) The obligations of the Company and the Underwriters under this
Section 11 shall be in addition to any liability that the Company or the
Underwriters may otherwise have.
SECTION 12. Default of Underwriters. It shall be a condition to this
Agreement and to the obligations of the Company to sell and deliver the Shares
hereunder, and to the obligations of each Underwriter to purchase the Shares in
the manner described herein, that, except as hereinafter provided in this
Section 12, each of the Underwriters (except a defaulting Underwriter) shall
purchase and pay for all the Shares agreed to be purchased by such Underwriter
hereunder upon tender to the Representatives of all such Shares in accordance
with the terms hereof. If any Underwriter or Underwriters defaults in its or
their obligations to purchase Shares hereunder on either the First Closing Date
or the Second Closing Date and the aggregate number of Shares that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed ten percent (10% ) of the total number of Shares the Underwriters are
obligated to purchase on such Closing Date, the Representatives may make
arrangements for the purchase of such Shares by other persons, including any of
the Underwriters, but if no such arrangements are made by such Closing Date the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Shares such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of Shares with
respect to which such default or defaults occur is greater than the above
percentage and arrangements satisfactory to the Representatives for the purchase
of such Shares by other persons are not made within thirty-six (36) hours after
such default, this Agreement will terminate without liability on the part of any
nondefaulting Underwriter or the Company, except to the extent provided in
Section 11.
If Shares to which a default relates are to be purchased by the
nondefaulting Underwriters or by another party or parties, the Representatives
or the Company shall have the right to postpone the First or Second Closing
Date, as the case may be, for not more than seven business days in order that
the necessary changes in the Registration Statement, Prospectus, and any other
documents, as well as any other arrangements, may be effected. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 12. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
SECTION 13. Effective Date. This Agreement shall become effective
immediately on the date hereof.
SECTION 14. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof, this Agreement may be
terminated by the Representatives prior to the First Closing Date and the option
from the Company referred to in Section 5, if exercised, may be canceled by the
Representatives at any time prior to the Second Closing Date, if:
(a) The Company shall have failed, refused, or been unable, at or
prior to such Closing Date, to perform any agreement on its part to be performed
hereunder;
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(b) Any other condition to the obligations of the Underwriters
hereunder is not fulfilled; or
(c) In the Representatives' judgment, payment for and delivery of the
Shares is rendered impracticable or inadvisable because:
(i) Additional governmental restrictions, not in force and
effect on the date hereof, shall have been imposed upon trading in securities
generally or minimum or maximum prices shall have been generally established on
any national securities exchange or over-the-counter market, or trading in
securities generally shall have been suspended on any national securities
exchange or on the Nasdaq Stock Market, or a general banking moratorium shall
have been established by federal or state authorities;
(ii) Any event shall have occurred or shall exist that makes
untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or that is not reflected in the
Registration Statement but should be reflected therein to make the statements or
information contained therein not misleading in any material respect; or
(iii) An outbreak or escalation of major hostilities involving
the United States or other national or international calamity or any substantial
change in political, financial or economic conditions shall have occurred or
shall have accelerated to such extent, in the Representatives' judgment, as to
have a material adverse effect on the general securities market.
Any termination pursuant to this Section 14 shall be without liability on
the part of any Underwriter to the Company or on the part of the Company to any
Underwriter (except for expenses to be paid by the Company pursuant to Section 7
or reimbursed by the Company pursuant to Section 9 and except as to
indemnification to the extent provided in Section 11).
This Agreement also may be terminated as provided in Section 12 hereof.
SECTION 15. Representations and Indemnities to Survive Delivery. The
respective indemnity and contribution agreements of the Company and the several
Underwriters, and the representations, warranties, covenants, and other
statements of the Company and of its directors and officers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, the Company, or any
of its or their partners, officers, directors, or any controlling person, as the
case may be, and will survive delivery of and payment for the shares sold
hereunder or the termination or cancellation of this Agreement.
SECTION 16. Notices. All communications hereunder will be in writing and,
if sent to the Representative, will be mailed, delivered, or telecopied (with
receipt confirmed) to Advest, Inc., at One World Financial Center, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director
(Fax No. (▇▇▇) ▇▇▇-▇▇▇▇) with a copy to Principal Financial Securities, Inc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ATTN: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Senior Vice President (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇) and with a copy to ▇▇▇▇
▇▇▇▇ ▇'▇▇▇▇▇▇▇, ▇▇▇▇▇ & Eppenberger, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇); and if sent to the Company will be
mailed, delivered, or telecopied (with receipt confirmed) to Gold Banc
Corporation, Inc. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (Fax No.
(▇▇▇) ▇▇▇-▇▇▇▇) with a copy
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to ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Sanders, Matheny, Weary & ▇▇▇▇▇▇▇▇, ▇.▇., ▇.▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇)
SECTION 17. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors or assigns,
and to the benefit of the directors and officers (and their personal
representatives) and controlling persons referred to in Section 11, and no other
person shall acquire or have any right or obligation hereunder. The terms
"successors or assigns," as used in this Agreement, shall not include any
purchaser of the Shares from any Underwriters merely by reason of such purchase.
SECTION 18. Partial Unenforceability. If any section, subsection, clause
or provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, subsection, clause, or provision hereof.
SECTION 19. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
SECTION 20. Entire Agreement. This Agreement embodies the entire
agreement among the parties hereto with respect to the transactions contemplated
herein, and there have been and are no agreements among the parties with respect
to such transactions other than as set forth or provided for herein.
SECTION 21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed counterparts hereof, whereupon it will
become a binding agreement among the Company and the several Underwriters,
including the Representative, in accordance with its terms.
Very truly yours,
GOLD BANC CORPORATION, INC.
By:
--------------------------------
Title:
-----------------------------
ADVEST, INC.,
PRINCIPAL FINANCIAL SECURITIES, INC.
As Representatives of the several
Underwriters listed in Schedule A.
By: ADVEST, INC.
By:
--------------------------------
Title:
-----------------------------
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GOLD BANC CORPORATION, INC.
SCHEDULE A
Number of Firm
Shares to be
Name of Underwriter Purchased
------------------- --------------
Advest, Inc........................................
Principal Financial Securities, Inc................
Total........................................... 2,000,000
=========
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