EXHIBIT 1
---------
ALLEGIANT BANCORP, INC.
(a Missouri corporation) and
Allegiant Capital Trust II
(a Delaware statutory business trust)
$30,000,000
_____% Cumulative Trust Preferred Securities
UNDERWRITING AGREEMENT
-------------------
__________, 2001
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
as the Underwriters,
c/▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Director
Ladies and Gentlemen:
Allegiant Capital Trust II (the "Trust"), a statutory business
trust organized under the Delaware Business Trust Act, 12 Del. C. Sections
3801 et seq. (the "Delaware Act"), and Allegiant Bancorp, Inc., a Missouri
corporation (the "Company" and together with the Trust, the "Offerors"),
confirm their agreement (this "Agreement") with ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
Incorporated ("▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated and ▇▇▇▇ ▇▇▇▇▇▇
Investments, Inc. (each, an "Underwriter", and together, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 of this Agreement), with respect to the issuance and
sale by the Trust, and the purchase by the Underwriters, acting severally
and not jointly, of the respective numbers of ____% Cumulative Trust
Preferred Securities (liquidation amount $25 per trust preferred security)
set forth in Schedule A hereto and the grant by the Trust to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) of this Agreement to purchase all or any part of 180,000
additional preferred securities to cover overallotments, if any. In this
Agreement, the 1,200,000 preferred securities (the "Initial Preferred
Securities") to be purchased by the Underwriters and all or any part of the
180,000 preferred securities subject to the option described in Section 2(b)
of this Agreement (the "Optional Preferred Securities") are called,
collectively, the "Preferred Securities." The Preferred Securities are more
fully described in the Prospectus (as defined below).
The Preferred Securities will be guaranteed by the Company, to the
extent set forth in the Prospectus, with respect to distributions and
amounts payable upon liquidation or redemption (the "Guarantee") pursuant to
the Guarantee Agreement (the "Guarantee Agreement") to be dated as of
Closing Time (as defined below) executed and delivered by the Company and
Bankers Trust Company (the "Guarantee Trustee"), a New York banking
corporation, not in its individual capacity but solely as trustee for the
benefit of the holders from time to time of the Preferred Securities. The
Company and the Trust each understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as they deem advisable
after this Agreement has been executed and delivered, and the Trust
Agreement (as defined below), the Indenture (as defined below), and the
Guarantee Agreement have been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). The entire proceeds from the sale of the
Preferred Securities will be combined with the entire proceeds from the sale
by the Trust to the Company of its common securities (the "Common
Securities"), and will be used by the Trust to purchase the ____%
1
Junior Subordinated Deferrable Interest Debentures due 2031 (the
"Subordinated Debentures") issued by the Company. The Preferred Securities
and the Common Securities will be issued pursuant to the Amended and
Restated Trust Agreement of Trust, to be dated as of Closing Time (the
"Trust Agreement"), among the Company, Bankers Trust Company, as property
trustee (the "Property Trustee"), Bankers Trust (Delaware), as Delaware
trustee (the "Delaware Trustee"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as administrative trustees (the "Administrative Trustees" and together with
the Property Trustee and the Delaware Trustee, the "Trustees"), and the
holders from time to time of undivided beneficial interests in the assets of
the Trust. The Subordinated Debentures will be issued pursuant to an
indenture, to be dated as of Closing Time (the "Indenture"), between the
Company and Bankers Trust Company, as debenture trustee (the "Debenture
Trustee").
The Preferred Securities, the Guarantee and the Subordinated
Debentures are collectively referred to in this Agreement as the
"Securities." The Indenture, the Trust Agreement, the Guarantee Agreement
and this Agreement are collectively referred to in this Agreement as the
"Operative Documents." Capitalized terms used in this Agreement without
definition have the respective meanings specified in the Prospectus.
The Company entered into an Agreement and Plan of Merger dated as
of April 30, 2001, as amended July 31, 2001 (as amended, the "Merger
Agreement"), with Southside Bancshares Corp., a Missouri corporation
("Southside"), pursuant to which the Company will merge (the "Merger") with
and into Southside with Southside continuing as the surviving entity and
being renamed "Allegiant Bancorp, Inc." (the "Surviving Corporation"). The
entire proceeds from the sale of the Subordinated Debentures of the Company
will be used by the Company to pay for a portion of the cash consideration
to be paid in the Merger and related costs and expenses.
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (File Nos. 333-62684
and 333-62684-01) covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus. Promptly after execution and delivery of this
Agreement, the Offerors will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations, (ii) if the Offerors have elected to rely upon Rule 434 ("Rule
434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b) or
(iii) a final prospectus in accordance with Rules 415 and 424(b). The
information included in such prospectus or in such Term Sheet, as the case
may be, that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration
statement at the time it became effective: (a) pursuant to paragraph (b) of
Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each
prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the
Rule 434 Information that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is in this Agreement called a
"preliminary prospectus." Such registration statement, including the
exhibits thereto and schedules thereto, if any, at the time it became
effective and including the Rule 430A Information and the Rule 434
Information, as applicable, and including any other registration statement
filed with the Commission to register a portion of the Securities pursuant
to Rule 462(b) under the 1933 Act (the "Rule 462 Registration Statement"),
is in this Agreement called the "Registration Statement." The final
prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Preferred Securities is in this
Agreement called the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated June 8, 2001,
together with the Term Sheet and all references in this Agreement to the
date of the Prospectus shall mean the date of the Term Sheet. For purposes
of this Agreement, all references to the Registration Statement, the Rule
462 Registration Statement, any preliminary prospectus, the Prospectus or
any Term Sheet or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
2
The Company and Southside have filed with the Commission a joint
proxy statement on Schedule 14A and Southside has filed a registration
statement of Form S-4 (File No. 333-63212) relating to the approval of the
Merger by the shareholders of each of the Company and Southside and the
issuance to shareholders of Allegiant and shareholders of Southside of
shares of capital stock of the Surviving Corporation as capital stock
consideration to be paid in the Merger. Such joint proxy statement and
registration statement, including the exhibits, appendices and schedules
thereto, if any, at the time it became effective is in this Agreement called
the "Merger Proxy/Registration Statement." For purposes of this Agreement,
all references to the Merger Proxy/Registration Statement or any amendment
or supplement thereto shall be deemed to include the copy filed with the
Commission pursuant to ▇▇▇▇▇.
All references to this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
in the Registration Statement, any preliminary prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which are
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include any
document filed under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), which is incorporated by reference in the Registration
Statement, such preliminary prospectus or the Prospectus.
SECTION 1. Representations and Warranties.
(a) Offerors' Representations and Warranties. The Offerors jointly
and severally represent and warrant to each Underwriter as of the date of
this Agreement, as of the Closing Time and as of each Date of Delivery (if
any) referred to in Section 2(b) of this Agreement, and agree with each
Underwriter as follows:
(i) Compliance with Registration Requirements. The Company
satisfied, on the date of initial filing of the Registration Statement and
will satisfy on the date of filing of any post-effective amendment and any
Rule 462 Registration Statement, the eligibility requirements to use Form
S-3 under the 1933 Act to register offerings and sales of its securities.
The Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the best knowledge of the Offerors, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. The Offerors
are legally permitted, pursuant to the terms of the 1933 Act, to offer and
sell the Securities pursuant to the Registration Statement.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing Time
and any Date of Delivery, the Registration Statement and any amendments and
supplements thereto and any Rule 462 Registration Statement complied and
will comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the Closing
Time and any Date of Delivery, included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434 and the
Prospectus shall not be "materially different," as such term is used in Rule
434, from the prospectus included in the Registration Statement at the time
it became effective. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Trust or the Company in writing by any of the
Underwriters expressly for use in the Registration Statement or Prospectus
(or any supplement thereto). The Offerors hereby acknowledge for all
purposes under this Agreement that (A) the statements set forth under the
caption "Underwriting" in the Prospectus, other than the paragraph
describing the Company's expenses in connection with the offering and sale
of the Preferred
3
Securities and the first and last sentence of the third to last paragraph of
such section (describing the listing of the Preferred Securities on the
Nasdaq National Market and the determination of the offering price and
distribution rate of the Preferred Securities) and (B) the stabilization and
passive market making legends on page ii of the Prospectus constitute the
only information furnished in writing to the Offerors by or on behalf of the
Underwriters for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and, if
applicable, each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering will, at the time of
such delivery, be substantively identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
Prospectus at the time they were or hereafter are filed with the Commission
complied and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), and, when read together with the other information
included in the Prospectus, at the time the Registration Statement became
effective, at the time the Prospectus was issued and at the Closing Time and
any Date of Delivery, do not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(iii) Merger Proxy/Registration Statement. The Merger
Proxy/Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Merger Proxy/Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the best knowledge of the
Offerors, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with. The
Surviving Corporation is legally permitted, pursuant to the terms of the
1933 Act, to distribute the shares of its capital stock as required by the
Merger Agreement pursuant to the Registration Statement.
At the time the Merger Proxy/Registration Statement was declared
effective under the 1933 Act, on the dates that the Merger
Proxy/Registration Statement was delivered to the respective shareholders of
the Company and/or Southside and at the effective time (the "Effective
Time") of the Merger, the Merger Proxy/Registration Statement complied and
will comply in all material respects with the requirements of the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and did
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Merger
Proxy/Registration Statement made in reliance upon and in conformity with
information furnished to the Company in writing by ▇▇▇▇ ▇▇▇▇▇ expressly for
use in the Merger Proxy/Registration Statement. The Offerors hereby
acknowledge for all purposes under this Agreement that (A) the statements
set forth under the caption "The Merger--Opinion of Allegiant Bancorp's
Financial Advisor" in the Merger Proxy/Registration Statement and (B) the
form of opinion set forth as Annex B to the Merger Proxy/Registration
Statement constitute the only information furnished in writing to the
Offerors by or on behalf of ▇▇▇▇ ▇▇▇▇▇ for use in the preparation of the
Merger Proxy/Registration Statement.
(iv) Independent Accountants. The accountants of the
Company who certified the Company's historical consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus are independent public accountants of the
Company within the meaning of the 1933 Act and the 1933 Act Regulations.
4
(v) Financial Statements. The consolidated historical
financial statements, together with the related schedules and notes, of the
Company and its Subsidiaries (as defined below) included in the Registration
Statement and the Prospectus present fairly, in all material respects, the
consolidated balance sheet of the Company and its Subsidiaries, at the dates
indicated and the statements of income, shareholders' equity and cash flows
of the Company and its Subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") in the United States applied on a
consistent basis throughout the periods involved, except as disclosed in the
notes to such financial statements; and the summary consolidated financial
data and selected consolidated financial data of the Company included in the
Registration Statement and the Prospectus present fairly, in all material
respects, the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus.
The summary consolidated financial data and selected consolidated financial
data of Southside included in the Registration Statement and the Prospectus
present fairly, in all material respects, the information shown therein. The
consolidated financial statements, together with related schedules and
notes, of Equality Bancorp, Inc. and its consolidated subsidiaries included
in the Registration Statement and the Prospectus present fairly, in all
material respects, the information shown therein. The summary pro forma
consolidated financial information and the pro forma combined consolidated
financial information included in the Registration Statement and the
Prospectus present fairly, in all material respects, the information
relating to the Company, and the information relating to Southside, shown
therein, and have been compiled on a basis consistent with that of the
audited consolidated financial statements of the Company and the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and circumstances
referred to therein. The supporting schedules, if any, to any of the
foregoing financial information included in the Registration Statement
present fairly, in all material respects, in accordance with GAAP the
information required to be stated therein.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Prospectus, except
as otherwise stated therein or contemplated thereby, there has not been (A)
any material adverse change in the condition, financial or otherwise,
business, assets, prospects, net worth or results of operations of the Trust
or of the Company and its Subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) any transaction entered into by the Trust, the Company
or any of its Subsidiaries, other than in the ordinary course of business,
that is material to the Trust, or to the Company and its Subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock, other than regular dividends on the Company's common stock.
(vii) No Material Adverse Change in Southside's Business.
Since the respective dates as of which information is given in the
Prospectus and the Merger Proxy/Registration Statement, to the best
knowledge of the Offerors, there has not been any material adverse change in
the condition, financial or otherwise, business, assets, prospects, net
worth or results of operations of Southside and its subsidiaries, considered
as one enterprise, whether or not arising in the ordinary course of
business.
(viii) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good standing
under the laws of the State of Missouri and is duly registered as a bank
holding company within the meaning of the Bank Holding Company Act of 1956,
as amended ("BHCA"), and has full corporate power and authority under such
laws to own, lease and operate its properties and to conduct its business as
now being conducted and described in the Prospectus, except where the
failure to do so would not have a Material Adverse Effect. The Company has
full corporate power and authority to enter into and perform its obligations
under each of the Operative Documents to which it is a party.
(ix) Good Standing of the Bank. Allegiant Bank (the
"Bank") has been duly organized and is validly existing as a Missouri state
banking association and continues to do business as such and has full power
and authority to conduct its business as such in each jurisdiction in which
its banking business is conducted and as described in the Prospectus. The
Bank is in good standing with the Division of Finance of
5
the State of Missouri ("Division of Finance"). The accounts of the Bank are
insured by the Bank Insurance Fund and the Savings Association Insurance
Fund of the Federal Deposit Insurance Corporation (the "FDIC") up to the
maximum applicable amount in accordance with the rules and regulations of
the FDIC, and no proceedings for the termination or revocation of such
membership or insurance are pending, or, to the best knowledge of the
Offerors, threatened.
(x) Good Standing of Southside. Southside has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Missouri and is duly registered as a bank holding
company within the meaning of the BHCA, and has full corporate power and
authority under such laws to own, lease and operate its properties and to
conduct its business as now being conducted and described in the Prospectus
and in the Merger Proxy/Registration Statement.
(xi) Good Standing of Southside Banks. Each of Southside
National Bank in St. Louis, State Bank of Jefferson County, Bank of Ste.
▇▇▇▇▇▇▇▇▇ and The Bank of St. ▇▇▇▇▇▇▇ County (collectively, the "Southside
Banks") has been duly organized and is validly existing as a national
banking association or a Missouri state banking association and continues to
do business as such and has full power and authority to conduct its business
as such in each jurisdiction in which its banking business is conducted and
as described in the Prospectus and the Merger Proxy/Registration Statement.
Each of the Southside Banks is in good standing with the Federal Reserve
Bank or the Division of Finance. The accounts of each of the Southside Banks
are insured by the Bank Insurance Fund and the Savings Association Insurance
Fund of the FDIC up to the maximum applicable amount in accordance with the
rules and regulations of the FDIC, and no proceedings for the termination or
revocation of such membership or insurance are pending, or, to the best
knowledge of the Offerors, threatened.
(xii) No Other Significant Subsidiaries. There are no
"significant subsidiaries" of the Company (as such term is defined in Rule
1-02 of Regulation S-X) other than the Bank. The Subsidiaries of the Company
other than the Bank considered in the aggregate as a single subsidiary, do
not constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X.
(xiii) Good Standing of the Subsidiaries. Each of the
Company's direct or indirect subsidiaries, whether wholly or partially owned
(collectively, the "Subsidiaries"), has been duly organized and is validly
existing as a corporation or business trust, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation or
organization and has corporate or trust power and authority to own, lease
and operate its properties and to conduct its business as now being
conducted and as described in the Prospectus, except where the failure to do
so would not result in a Material Adverse Effect; and the Company and each
of its corporate Subsidiaries is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(xiv) Subsidiaries' Capital Stock Duly Authorized and
Validly Issued. All of the issued and outstanding shares of capital stock or
other equity securities of the Company's corporate Subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable, and,
except for the trust preferred securities of Allegiant Capital Trust I, are
owned by the Company, directly or indirectly, and are held free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity
of any kind; none of such outstanding shares of capital stock of the
Company's corporate Subsidiaries was issued in violation of any preemptive
or similar rights arising by operation of law, or under the charter or
by-laws of any such Subsidiary or under any agreement to which the Company
or any of its Subsidiaries is a party.
(xv) Capitalization. The capitalization of the Company as
of June 30, 2001 is as set forth in the Prospectus under the caption
"Capitalization" (and there have not been any subsequent issuances of
capital stock of the Company except for subsequent issuances, if any,
pursuant to any dividend reinvestment plan, reservations, agreements,
conversions, stock dividends or employee or director benefit plans or the
Merger Agreement) and the capitalization of the Surviving Corporation
immediately following the Effective
6
Time will be as set forth in the Prospectus under the caption
"Capitalization"; the issued and outstanding capital stock of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable and none of the capital stock of the Company was issued in
violation of the preemptive rights of any shareholder of the Company. Except
as otherwise stated in the Registration Statement and Prospectus, there are
no preemptive rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of the Company's
capital stock pursuant to the Company's Articles of Incorporation, as
amended, by-laws or any agreement or other instrument to which the Company
is a party or by which the Company is bound. Neither the filing of the
Registration Statement nor the offering or sale of the Subordinated
Debentures or Securities as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any shares of capital stock of
the Company. Except as described in the Registration Statement and the
Prospectus and except for stock options granted to employees and directors
of the Company and the Subsidiaries and pursuant to the Merger Agreement
(all of which have been disclosed in the Registration Statement to the
extent required by the Act or the Exchange Act), there are no options,
warrants, agreements, contracts or other rights in existence to purchase or
acquire from the Company or any Subsidiary any shares of the capital stock
of the Company or such Subsidiary.
(xvi) Good Standing of the Trust. The Trust has been duly
created and is validly existing in good standing as a business trust under
the Delaware Act with the power and authority to own property and to conduct
its business as described in the Prospectus and to enter into and perform
its obligations under the Operative Documents, as applicable, and the
Preferred Securities; the Trust is not a party to or otherwise bound by any
agreement other than those described in the Prospectus; and the Trust is and
will be, under federal income tax law as of the date hereof and as of the
Closing Time and any Date of Delivery, classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as
a corporation. As of the date hereof and as of the Closing Time and any Date
of Delivery, the Trust is and, immediately after the offering and the sale
of the Securities will be, treated as a consolidated subsidiary of the
Company pursuant to GAAP.
(xvii) Authorization of Common Securities. The Common
Securities have been duly authorized for issuance by the Trust pursuant to
the Trust Agreement and, when issued, executed and authenticated in
accordance with the Trust Agreement and delivered by the Trust to the
Company against payment therefor in accordance with the Common Securities
Subscription Agreement, will be validly issued and fully paid and
nonassessable undivided beneficial interests in the assets of the Trust and
will conform in all material respects to the descriptions thereof contained
in the Prospectus. The issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time and any Date of
Delivery all of the issued and outstanding Common Securities of the Trust
will be directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(xviii) Authorization of Preferred Securities. At the
Closing Time and any Date of Delivery, the Preferred Securities will have
been duly authorized for issuance by the Trust pursuant to the Trust
Agreement and, when issued, executed and authenticated in accordance with
the Trust Agreement and delivered against payment therefor as provided in
this Agreement, will be validly issued and fully paid and non-assessable
undivided beneficial ownership interests in the assets of the Trust and will
conform in all material respects to the description thereof in the
Prospectus. The issuance of the Preferred Securities will not be subject to
preemptive or other similar rights. Holders of Preferred Securities will be
entitled to the same limitation of personal liability under Delaware law as
extended to stockholders of a private corporation for profit.
(xix) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Offerors and constitutes a
legal, valid and binding obligation of each of the Offerors, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by any of (A) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting creditors' rights
generally, and (B) general principles of equity, regardless of whether
enforceability is considered in a proceeding at law or in equity
(collectively, the "Enforceability
7
Exceptions"). Each Offeror has full power and authority to enter into this
Agreement and, in the case of the Trust, to authorize, issue and sell the
Preferred Securities as contemplated by this Agreement.
(xx) Authorization of Trust Agreement. The Trust Agreement
has been qualified under the 1939 Act and has been duly authorized by the
Company and, at the Closing Time, will have been duly executed and delivered
by the Company and the Trustees, assuming due authorization, execution and
delivery of the Trust Agreement by the Trustees, the Trust Agreement will,
at the Closing Time and any Date of Delivery, be a valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforceability may be limited by the
Enforceability Exceptions.
(xxi) Authorization of Guarantee Agreement. The Guarantee
Agreement has been qualified under the 1939 Act and the Guarantee Agreement
and the Guarantee have been duly authorized by the Company; at the Closing
Time and any Date of Delivery, the Guarantee Agreement will have been duly
executed and delivered by the Company and will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforceability may be
limited by any of the Enforceability Exceptions; and the Guarantee and the
Guarantee Agreement will conform in all material respects to the description
thereof in the Prospectus. The Company has full power and authority to enter
into the Guarantee Agreement.
(xxii) Authorization of Indenture. The Indenture has been
qualified under the 1939 Act and has been duly authorized by the Company; at
the Closing Time and any Date of Delivery, the Indenture will have been duly
executed and delivered by the Company and will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforceability thereof
may be limited by any of the Enforceability Exceptions. The Company has full
power and authority to enter into the Indenture.
(xxiii) Authorization of Subordinated Debentures. The
Subordinated Debentures have been duly authorized by the Company; at the
Closing Time and any Date of Delivery, the Subordinated Debentures will have
been duly executed by the Company and, when authenticated in the manner
provided for in the Indenture and delivered by the Company to the Trust
against payment therefor as described in the Prospectus, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforceability thereof may be limited by any of the Enforceability
Exceptions; and the Subordinated Debentures will be in the form contemplated
by, and entitled to the benefits of, the Indenture and will conform in all
material respects to the descriptions thereof in the Prospectus.
(xxiv) Authorization of Trustees. Each of the
Administrative Trustees of the Trust is an officer of the Company and has
been duly authorized by the Company to act in such capacity and to execute
and deliver the Trust Agreement. The Merger Agreement conforms in all
material respects to the description thereof contained in the Prospectus and
in the Merger Proxy/Registration Statement.
(xxv) Authorization of Merger Agreement. The Merger
Agreement has been duly authorized, executed and delivered by the Company
and, assuming due authorization, execution and delivery thereof by
Southside, constitutes a valid, legal and binding agreement of the Company
enforceable against the Company in accordance with its terms, except to the
extent enforceability may be limited by any of the Enforceability Exceptions
and except that enforcement of rights to indemnification and contribution
contained therein may be limited by applicable federal or state laws or the
public policy underlying such laws. The shares of the capital stock of the
Surviving Corporation delivered pursuant to the terms of the Merger
Agreement will have been duly authorized for issuance by the Surviving
Corporation pursuant to the Merger Agreement and, when issued, executed and
authenticated in accordance with the Merger Agreement and delivered as
provided in the Merger Agreement, will be validly issued and fully paid and
non-assessable and will conform in all material respects to the description
thereof in the Merger Proxy/Registration Statement. The issuance of such
shares of capital stock will not be subject to preemptive
8
or other similar rights. With the exception of the delivery of the merger
consideration, all conditions to the obligations of each of the Company and
Southside to consummate the Merger have been satisfied or duly waived and
the Company has received a binding agreement from a third party lender to
loan the Company funds (including, without limitation, an agreement from a
third party lender who currently has loaned funds to the Company for other
purposes), which when considered with the net proceeds from the sale of the
Securities and the Company's cash on hand, will be sufficient to pay the cash
consideration payable to Southside shareholders pursuant to the Merger and
related fees and expenses and to fund ordinary business operations consistent
with past practices, but which loan amount shall in any event not be less than
$35 million.
(xxvi) Trust and Company Not Investment Company or
Investment Adviser. Neither the Trust nor the Company is, and immediately
following consummation of the transactions contemplated hereby and the
application of the net proceeds as described in the Prospectus under the
caption "Use of Proceeds" neither the Trust nor the Company will be, an
"investment company" or a company "controlled" by an "investment company"
which is required to be registered under the Investment Company Act of 1940,
as amended (the "1940 Act") or an "investment adviser" which is required to
be registered under the Investment Advisers Act of 1940, as amended.
(xxvii) Accuracy of Disclosure. The Operative Documents
and the Securities conform in all material respects to the descriptions
thereof contained in the Prospectus.
(xxviii) Absence of Defaults and Conflicts. The Trust is
not in violation of the trust certificate of the Trust filed with the State
of Delaware (the "Trust Certificate") or the Trust Agreement, and neither
the Company nor any of its Subsidiaries is in violation of its Articles of
Incorporation, charter, by-laws, certificate of formation, trust agreement
or other similar document; none of the Trust, the Company or any of its
Subsidiaries is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
permit, license, franchise agreement, debenture, deed of trust or other
agreement or instrument to which it is a party or by which it or any of them
may be bound, or to which any of its property or assets is subject
(collectively, "Agreements and Instruments"), and no other party to any
Agreement or Instrument is in material default thereunder, except for such
defaults under Agreements and Instruments that would not result in a
Material Adverse Effect; and (A) the execution, delivery and performance of
the Operative Documents and the Merger Agreement by the Trust or the
Company, as the case may be, (B) the issuance, sale and delivery of the
Common Securities and the Securities, (C) the consummation of (x) the
transactions contemplated by the Operative Documents and (y) the Merger, and
(D) compliance by the Offerors with the terms of the Operative Documents and
the Merger Agreement to which they are a party have been duly authorized by
all necessary corporate action on the part of the Company and, with respect
to the matters described in sub-clauses (A), (B), (C)(x) and (D) of this
Agreement, at the Closing Time and any Date of Delivery, will have been duly
authorized by all necessary action on the part of the Trust, and none of the
actions referred to in sub-clauses (A) through (C) above violate, conflict
with or constitute a breach of or, default or Repayment Event (as defined
below), and will not, whether with or without the giving of notice or
passage of time or both, violate, conflict with or constitute a breach of,
or default or Repayment Event under, or result in the creation or imposition
of any security interest, mortgage, pledge, lien, charge, encumbrance or
equitable right upon any property or assets of the Trust, the Company or any
of the Subsidiaries pursuant to the Agreements and Instruments (except for
such conflicts, violations, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will
such action result in any violation of the provisions of the Articles of
Incorporation, charter, by-laws, certificate of formation, trust agreement
or other similar document of the Company or any of its Subsidiaries or the
Trust Agreement or the Trust Certificate or violation by the Company or any
of its Subsidiaries of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government authority,
agency or instrumentality or court, domestic or foreign, including, without
limitation, the Board of Governors of the Federal Reserve System (the
"FRB"), the Division of Finance, and the FDIC (each, a "Governmental
Entity"). To the best knowledge of the Offerors, no other party under any
other Agreements and Instruments is in material default thereunder except
for such defaults as would not individually or in the aggregate result in a
Material Adverse Effect. As used in this Agreement, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any
9
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Trust, the Company or any of the Company's Subsidiaries.
(xxix) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its Subsidiaries exists or, to the best
knowledge of the Offerors, has been threatened, which may result in a
Material Adverse Effect.
(xxx) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry or investigation
before or brought by any Governmental Entity now pending, or, to the best
knowledge of the Offerors, threatened, against the Trust, the Company or any
of its Subsidiaries or of which any of their respective property or assets
is the subject, which, individually or in the aggregate, might result in a
Material Adverse Effect, or might materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated by the Operative Documents or the Merger Agreement or the
performance by the Trust or the Company of its obligations hereunder or
thereunder or which requires the Company or any Subsidiary to make any
material change in its method of conducting its business.
(xxxi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any Governmental Entity, other than those that
have been made or obtained, is necessary or required for the performance by
the Company or the Trust of their respective obligations under each of the
Operative Documents and the Merger Agreement, as applicable, or the
consummation by the Trust and the Company of the transactions contemplated
by the Operative Documents or the Merger.
(xxxii) Possession of Licenses and Permits. The Trust, the
Company and its Subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate Governmental Agencies necessary to conduct the
business now operated by them; the Trust, the Company and its Subsidiaries
are in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental Licenses
are valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and neither
the Trust, the Company nor any of the Subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, is likely to result
in a Material Adverse Effect. The Offerors and the Subsidiaries have
fulfilled and performed all of their respective material obligations with
respect to all Governmental Licenses, and no event has occurred that allows,
or after notice or lapse of time or both, would allow revocation or
termination of any Governmental License or result in any other material
impairment of the rights of the holder of any such Governmental License.
(xxxiii) Accuracy of Exhibits. There are no agreements,
contracts or documents of a character described in Item 601 of Regulation
S-K promulgated by the Commission which are required to be described in the
Registration Statement, the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xxxiv) Title to Property. The Company and its
Subsidiaries have good and marketable title to all of their respective fee
owned properties, in each case free and clear of all liens, encumbrances and
defects, except as stated in the Prospectus or to the extent the failure to
have such title or the existence of such liens, encumbrances or defects
would not have a Material Adverse Effect; and all of the leases and
subleases material to the business of the Trust, the Company and its
Subsidiaries considered as one enterprise, and under which the Offerors or
any of the subsidiaries of the Company holds leasehold interests in any of
the properties described in the Prospectus, are in full force and effect,
and neither the Offerors nor any of the Company's Subsidiaries has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Offerors or any of the Company's Subsidiaries
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of such corporation to the continued
10
possession of the leased or subleased premises under any such lease or
sublease. The Offerors and the Subsidiaries enjoy peaceful and undisturbed
possession under all such leases to which they are a party as lessee with
such exceptions as do not materially interfere with the use made thereof by
such Offeror or subsidiary.
(xxxv) Regulation M. Neither Offeror has taken or will
take, directly or indirectly, any action designed to, which has constituted,
or that might be reasonably expected to, cause or result in stabilization or
manipulation of the price of any of the Securities.
(xxxvi) Insurance. The Offerors and the Subsidiaries
maintain reasonably adequate insurance for the conduct of their respective
businesses in accordance with prudent business practices with reputable
third-party insurers.
(xxxvii) Tax Returns and Tax Liabilities. Each of the
Offerors and each Subsidiary has filed or caused to be filed, or has
properly filed extensions for, all foreign, federal, state and local income,
value added and franchise tax returns and has paid all taxes and assessments
shown thereon as due, except for such taxes and assessments as are disclosed
or adequately reserved against and that are being contested in good faith by
appropriate proceedings, promptly instituted and diligently conducted. All
material tax liabilities are adequately provided for on the books of such
Offeror or Subsidiary, and there is no material tax deficiency that has been
or might be asserted against any of them that is not so provided for.
(xxxviii) Patents and Proprietary Rights. The Offerors and
the Subsidiaries own or possess, or can acquire on reasonable terms, the
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, "Patents and Proprietary
Rights") currently employed by them in connection with the businesses they
now operate, except where the failure to so own, possess or acquire such
Patents and Proprietary Rights would not have a Material Adverse Effect.
Neither of the Offerors nor any Subsidiary has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Patent or Proprietary Rights that, if the subject
of any unfavorable decision, ruling or finding, singly or in the aggregate,
would not to result in a Material Adverse Effect.
(xxxix) Subordination of Guarantee Agreement Obligations.
The Company's obligations under the Guarantee Agreement are subordinated and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Company.
(xl) Subordination of Subordinated Debentures. The
Subordinated Debentures are subordinate and junior in right of payment to
all Senior Indebtedness (as defined in the Indenture) of the Company.
(xli) Environmental Laws. Neither Offeror nor any
subsidiary has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") that, in each case or in the aggregate,
might result in a Material Adverse Effect. Except as stated in the
Registration Statement, none of the property owned or leased by either
Offeror, Southside or any subsidiary is contaminated with any waste or
hazardous substances that might result in a Material Adverse Effect, nor may
either Offeror, Southside or any subsidiary be deemed an "owner or operator"
of a "facility" or "vessel" that owns, possesses, transports, generates,
discharges or disposes of a "hazardous substance" as those terms are defined
in Section 9601 of the Comprehensive Response Compensation and Liability Act
of 1980, U.S.C. Section 9601 et seq., except as would not result in a
Material Adverse Effect.
(xlii) ERISA. Each of the Company and the Subsidiaries is
in compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). No "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) which would have a
Material Adverse Effect for which the Company or any
11
subsidiary would have any liability. Neither the Company nor any Subsidiary
has incurred or expects to incur liability under (A) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan," or (B)
Section 412 or 4971 of the Internal Revenue Code or 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"), in each case which would not have a Material Adverse Effect. Each
"pension plan" for which the Company or any subsidiary would have any
liability that is intended to be qualified under Section 501(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification, except for such losses as would not have a Material Adverse
Effect.
(xliii) Compliance with Laws. Neither Offeror nor any
Subsidiary is in violation of any statute, judgment, decree, order, rule or
regulation (collectively, "Laws") applicable to any of them or any of their
respective properties or assets that, alone or together with other such
violations, would result in a Material Adverse Effect. None of the Offerors,
any Subsidiary nor, any employee or agent of any of them has made any
payment of funds of such Offeror or Subsidiary or received has retained any
funds in violation of any law, rule or regulation (including the Foreign
Corrupt Practices Act) or of a character required to be disclosed in the
Prospectus. Neither of the Offerors nor any Subsidiary has, at any time
during the past five years, (A) made any unlawful contributions to any
candidate for any political office, or failed fully to disclose any
contribution in violation of law, or (B) made any unlawful payment to state,
federal or foreign government officer or officers, or other person charged
with similar public or quasi-public duty. The Offerors and the Subsidiaries
are in compliance with all provisions of Section 1 of Florida Statutes,
Section 517.075, An Act Relating to Disclosure of Doing Business with Cuba.
(xliv) Internal Accounting Controls. Each of the Company
and the Subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability, and (iii) access to assets is permitted only in accordance
with management's general or specific authorization.
(xlv) No Distribution. The Offerors have not distributed
any prospectus or other offering material in connection with the offering
and sale of the Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Offerors.
(xlvi) No Brokers. Other than as contemplated by this
Agreement or described in the Registration Statement, neither Offeror has
incurred any liability for any finder's or broker's fee or agent's
commission in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.
(xlvii) Tier I Capital. The Offerors expect that the
Securities will qualify as "Tier 1" capital (as defined in 12 C.F.R. Part
325 and subject to the limitations set forth therein) to the extent
described under "Capitalization" in the Prospectus.
(xlviii) Fiduciary Accounts. The Bank has properly
administered, in all material respects, all accounts for which it acts as a
fiduciary, including, but not limited to, accounts for which it serves as a
trustee, agent, custodian, personal representative, guardian, conservator or
investment advisor, in accordance with the terms of the governing documents
and applicable state and federal law and regulation and common law. Neither
the Bank nor any of its directors, officers or employees has committed any
material breach of trust with respect to any such fiduciary account, and the
accountings for each such fiduciary account are true and correct in all
material respects and accurately reflect the assets of such fiduciary
account in all material respects.
(b) Certificates. Any certificate signed by any Trustee of the
Trust or any duly authorized officer of the Company or any Subsidiary of the
Company in such person's capacity as such officer and delivered to
12
you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Trust or the Company, as the case may be, to the
Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Preferred Securities. On the basis of the
representations and warranties contained in this Agreement and subject to
the terms and conditions set forth in this Agreement, the Trust agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at the
purchase price of $25 per Initial Preferred Security, the number of Initial
Preferred Securities set forth in Schedule A opposite the name of that
Underwriter, plus any additional number of Initial Preferred Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 of this Agreement, subject, in each case, to such
adjustments among the Underwriters as they in their sole discretion shall
make to eliminate any sales or purchases of fractional Preferred Securities.
As compensation to the Underwriters for their commitments under this
Agreement and because the proceeds of the sale of the Preferred Securities
will be used to purchase the Subordinated Debentures, the Company hereby
agrees to pay at the Closing Time and at any Date of Delivery to the
Underwriters by wire transfer of immediately available funds a commission of
$0.9375 per Preferred Security sold.
(b) Optional Preferred Securities. In addition, on the basis of the
representations and warranties in this Agreement contained and subject to
the terms and conditions set forth in this Agreement, the Trust hereby
grants an option to the Underwriters, severally and not jointly, to purchase
up to 180,000 Optional Preferred Securities at the price per share set forth
in the immediately preceding paragraph. The option hereby granted will
expire at the close of business, St. Louis, Missouri time, on the 30th day
after the date of this Agreement and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
Preferred Securities upon notice by ▇▇▇▇ ▇▇▇▇▇ to the Trust setting forth
the number of Optional Preferred Securities as to which the Underwriters are
then exercising the option and the time and date of payment and delivery for
such Optional Preferred Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by the Underwriters, but, if notice
of exercise is given to the Trust following the Closing Time, shall not be
earlier than the third day after such notice is given (without consent of
the Company), and in any event, shall not be later than the 30th day after
the date of this Agreement or prior to the Closing Time. If the option is
exercised as to all or any portion of the Optional Preferred Securities,
each of the Underwriters, acting severally and not jointly, will purchase
and the Trust agrees to sell to the Underwriters that proportion of the
total number of Optional Preferred Securities to be sold by the Trust which
the number of Initial Preferred Securities set forth in Schedule A opposite
the name of such Underwriter bears to the total number of Initial Preferred
Securities, subject in each case to such adjustments as the Underwriters in
their discretion shall make to eliminate any sales or purchases of
fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for the Initial Preferred Securities shall be made at the
offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, St. Louis, Missouri, or at such other place
as shall be agreed upon by the Underwriters and the Offerors, at 8:30 a.m.,
(Central time) on the third business day (or, if pricing occurs after 4:30
p.m. (Eastern time) on any given day, the fourth business day) after the
date of this Agreement (unless postponed in accordance with the provisions
of Section 10 of this Agreement), or such other time as shall be agreed upon
by the Underwriters and the Offerors (such time and date of payment and
delivery being in this Agreement called the "Closing Time").
In addition, if any or all of the Optional Preferred Securities are
purchased by the Underwriters, then payment of the purchase price for, and
delivery of certificates for, such Optional Preferred Securities shall be
made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Underwriters and the Offerors on each Date of Delivery as
specified in the notice from the Underwriters to the Offerors.
13
Payment shall be made to the Trust by wire transfer of immediately
available funds, to the order of the Trust, to a bank designated by the
Company, against delivery to the Underwriters of the Preferred Securities to
be purchased by them. It is understood that each Underwriter has authorized
▇▇▇▇ ▇▇▇▇▇, for its account, to accept delivery of, receipt for, and make
payment of the Purchase Price for, the Initial Preferred Securities and the
Optional Preferred Securities, if any, which it has agreed to purchase. ▇▇▇▇
▇▇▇▇▇, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the
Initial Preferred Securities or the Optional Preferred Securities, if any,
to be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
SECTION 3. Covenants of the Offerors. The Offerors jointly and
severally covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company and the Trust, subject to Section 3(b) of this Agreement, will
comply with the requirements of Rule 430A or Rule 434, as applicable, and
will notify the Underwriters immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments to the
Registration Statement from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus, or of the suspension of the qualification of
the Preferred Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes, and
(v) for three years after the date of this Agreement, of the happening of
any event or information becoming known that makes any statement of a
material fact made in the Registration Statement untrue or that requires the
making of any additions to or changes in the Registration Statement (as
amended or supplemented from time to time) untrue. The Company and the Trust
will promptly effect the filings necessary pursuant to Rule 424(b) and will
take such steps as it deems necessary to ascertain promptly whether the form
of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Offerors will use their respective best efforts to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company and the Trust will give the
Underwriters notice of their intention to file or prepare any amendment to
the Registration Statement, any Term Sheet or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, whether pursuant to the
1933 Act or otherwise, will furnish the Underwriters with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Underwriters or counsel for the Underwriters shall reasonably object or
which is not in compliance with the 1933 Act or the 1933 Act Regulations.
The Offerors will prepare and file, with the Commission, promptly upon a
reasonable request by the Underwriters, any amendment to the Registration
Statement or Supplement to the Prospectus that may be necessary or advisable
in connection with the distribution of the Preferred Securities by the
Underwriters in the Underwriters' or their counsel's opinion, and will use
best efforts to cause any such amendment to the Registration Statement to
become effective as promptly as possible.
(c) Delivery of Registration Statements. The Offerors have
furnished or will deliver to the Underwriters and counsel for the
Underwriters, without charge, two signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) and signed
copies of all consents and certificates of experts, and will also deliver to
the Underwriters, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
substantively
14
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Offerors, as promptly as
possible, will furnish to the Underwriters, without charge, such number of
copies of the preliminary prospectus, the Prospectus and any amendments and
supplements thereto and documents incorporated by reference therein as the
Underwriters may reasonably request, and the Offerors hereby consent to the
use of such copies for purposes permitted by the 1933 Act. The Offerors will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be substantively
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(e) Continued Compliance with Securities Laws. The Offerors will
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Preferred Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not
include any untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Offerors will promptly advise the
Underwriters thereof and, if requested by the Underwriters, confirm such
occurrence in writing, and will promptly prepare and file with the
Commission, subject to Section 3(b) of this Agreement, such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Offerors will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) Blue Sky Qualifications. The Company and the Trust will each
use its best efforts, in cooperation with the Underwriters and their
counsel, to qualify the Preferred Securities for offering and sale under the
applicable securities laws of such states and other U.S. jurisdictions as
the Underwriters may reasonably designate and to maintain such
qualifications in effect for so long as the Underwriters may reasonably
request for distribution of the Preferred Securities (or obtain exemptions
from the application of such laws); provided, however, that neither the
Company nor the Trust shall be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject. The Offerors will, from time to time,
prepare and file such statements, reports and other documents as may be
requested by the Underwriters for such purpose.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
security holders as soon as practicable an earning statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph
of Section 11(a) of the 1933 Act.
(h) Notice and Effect of Material Events. The Offerors will
immediately notify the Underwriters, and confirm such notice in writing, of
(i) any filing made by either of the Offerors of information relating to the
offering of the Preferred Securities with any securities exchange, automated
quotation system or any other regulatory body in the United States, and (ii)
prior to the completion of the distribution of the Preferred Securities by
the Underwriters as evidenced by a notice in writing from the Underwriters
to the Offerors, any Material Adverse Effect, which (A) makes any statement
in the Prospectus false or misleading or (B) is not disclosed in the
Prospectus. In such event or if during such time any event shall occur as a
15
result of which it is necessary, in the reasonable opinion of the Company,
its counsel or the Underwriters or counsel to the Underwriters, to amend or
supplement the Prospectus in order that the Prospectus not include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances then existing, the Company will forthwith amend
or supplement the Prospectus by preparing and furnishing to the Underwriters
for their review and approval, and once such approval has been granted,
filing with the Commission an amendment or amendments of, or a supplement or
supplements to, the Prospectus (in form and substance satisfactory in the
reasonable opinion of counsel for the Underwriters) so that, as so amended
or supplemented, or the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at the
time it is delivered to a Subsequent Purchaser, not misleading.
(i) DTC. The Offerors will cooperate with the Underwriters and use
their commercially reasonable efforts to permit the Preferred Securities to
be eligible for clearance and settlement through the facilities of The
Depository Trust Company ("DTC").
(j) Use of Proceeds. The Trust will use the net proceeds received
by it from the sale of the Preferred Securities, and the Company will use
the net proceeds received by it from the sale of the Subordinated
Debentures, in the manners specified in the Prospectus under "Use of
Proceeds."
(k) The Nasdaq National Market. The Offerors will cause, beginning
on the date the Registration Statement becomes effective, the Preferred
Securities to be quoted on the Nasdaq National Market and will file with the
Nasdaq National Market all documents and notices required by the Nasdaq
National Market of companies that have securities that are traded in the
over-the-counter market and quotations for which are reported by the Nasdaq
National Market. If the Subordinated Debentures are distributed on the
occurrence of a Tax Event (as defined in the Prospectus), the Company will
use its commercially reasonable efforts to effect the quotation of the
Subordinated Debentures on the Nasdaq National Market or such other
automated quotation system or national securities exchange on which the
Preferred Securities are then listed.
(l) Reporting Requirements. The Company and the Trust, during the
period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
(m) Furnish Reports. For and during the period ending three years
after the effective date of the Registration Statement, the Company will
furnish, upon request, to the Underwriters copies of all reports and other
communications (financial or otherwise) furnished by the Company to its
security holders generally and copies of any reports or financial statements
furnished to or filed by the Company with the Commission or any national
securities exchange on which any class of securities of the Company may be
listed.
(n) No Liability. The Company and the Trust, for and during the
period prior to the exercise in full or termination or expiration of the
option to purchase the Optional Preferred Securities, will not incur any
liability or obligation, direct or contingent, or enter into any material
transaction, other than in the ordinary course of business, except as
contemplated by the Prospectus.
(o) Delivery of Documentation. For and during the period of three
years after the date of this Agreement, the Company and the Trust will
furnish to the Underwriters a copy: (i) as soon as practicable after the
filing thereof, of each report filed by either of the Offerors with the
Commission, any securities exchange , the Nasdaq Stock Market, Inc. or the
NASD Regulation, Inc. ("NASD"); (ii) as soon as practicable after the
release thereof, of each material press release in respect of either of the
Offerors; (iii) as soon as available, of each report of the Company mailed
to shareholders; and (iv) as soon as available, such other publicly
available information concerning the Offerors as the Underwriters may
reasonably request.
16
(p) Price stabilization or manipulation. The Trust and the Company
will not (and each of them will not permit its respective affiliates to)
take, directly or indirectly, any action designed to or which might
reasonably be expected to constitute, cause or result in, under the
Securities Exchange Act of 1934 or otherwise, the stabilization or
manipulation of the price of any of the Securities.
(q) Best Efforts. The Company and the Trust will use their best
efforts to do and perform all things required to be done and performed under
this Agreement by them prior to, at or after the Closing Time, and to
satisfy all conditions precedent to the delivery of the Preferred
Securities.
SECTION 4. Payment of Expenses.
(a) Expenses. Regardless of whether the transactions contemplated
hereby are consummated or this Agreement becomes effective as to all of its
provisions or is terminated, the Company, as borrower under the Subordinated
Debentures, will pay all expenses incident to the performance of its, and
the Trust's, obligations under this Agreement, including:
(i) the preparation, printing, filing and distribution of
the Registration Statement (including financial statements and any schedules
or exhibits and any document incorporated therein by reference) and of each
amendment or supplement thereto;
(ii) the preparation, printing and delivery to the
Underwriters of this Agreement, the Operative Documents and such other
documents as may be required in connection with the offering, purchase, sale
and delivery of the Preferred Securities;
(iii) the preparation, issuance and delivery of the
Preferred Securities to the Underwriters, including any securities or other
transfer taxes and any stamp or other duties payable upon the sale,
issuance, or delivery of the Preferred Securities to the Underwriters;
(iv) the fees and disbursements of the Company's counsel,
accountants and other advisors;
(v) the fees and expenses of any trustee appointed under
any of the Operative Documents, including the fees and disbursements of
counsel for such trustees in connection with the Operative Documents;
(vi) the qualification of the Preferred Securities under
securities laws in accordance with the provisions of Section 3(f) of this
Agreement, including filing fees;
(vii) the filing fees incident to the review by the NASD
of the terms of the sale of the Preferred Securities;
(viii) the reasonable fees and disbursements of counsel
for the Underwriters in connection with the qualification of the Preferred
Securities under securities laws in accordance with the provisions of
Section 3(f) of this Agreement, in connection with the preparation of the
Blue Sky Survey and any supplement thereto, if any, and in connection with
the review by the NASD of the terms of the sale of the Preferred Securities;
provided that such fees and expenses shall not exceed $7,000 in the
aggregate;
(ix) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheets and of the Prospectus
and any amendments or supplements thereto, if any;
(x) the fees and expenses of any transfer agent or
registrar for the Preferred Securities;
(xi) the fees and expenses incurred in connection with the
listing of the Preferred Securities and, if applicable, the Subordinated
Debentures on the Nasdaq National Market;
17
(xii) the cost and charges of qualifying the Preferred
Securities with the DTC, including the fees and disbursements of counsel in
connection therewith;
(xiii) all advertising expenses in connection with the
Offering;
(xiv) the fees and expenses in connection with obtaining
the opinions to be provided pursuant to Sections 5(b), 5(c) and 5(d) of this
Agreement; and
(xv) the costs and expenses in connection with the
performance by the Offerors of all of their obligations under this
Agreement.
(b) Termination of Agreement. If this Agreement is terminated by
the Underwriters in accordance with the provisions of Section 5 or Section 9
of this Agreement, the Company shall reimburse the Underwriters for all of
their actual accountable out-of-pocket expenses, including all the
reasonable fees and disbursements of counsel for the Underwriters; provided
that such out-of-pocket fees and expenses in the aggregate do not exceed
$75,000.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Offerors contained in Section 1 of this Agreement or
in certificates of any Trustee of the Trust, officer of the Company or any
of its Subsidiaries delivered pursuant to the provisions this Agreement, to
the performance by the Offerors of their obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and at Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the satisfaction of counsel to
the Underwriters. A prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A or,
if the Company has elected to rely upon Rule 434, a Term Sheet shall have
been filed with the Commission in accordance with Rule 424(b)).
(b) Opinion of Outside Counsel for Offerors. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, St. Louis, Missouri, counsel for the
Offerors, substantially in the form of Exhibit A to this Agreement. Such
counsel may state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of
Trustees of the Trust, officers of the Company and its Subsidiaries and
certificates of public officials, provided that such counsel shall state
their belief that they and the Company are justified in relying thereon.
(c) Opinion of Counsel for Bankers Trust Company. At the Closing
Time, the Underwriters shall have received the opinion, dated as of the
Closing Time, of ___________, counsel to Bankers Trust Company, as Property
Trustee under the Trust Agreement, Guarantee Trustee under the Guarantee
Agreement and Debenture Trustee under the Indenture, to the effect that: (i)
Bankers Trust Company is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the
State of New York; (ii) the Indenture Trustee has the requisite power and
authority to execute, deliver and perform its obligations under the
Indenture and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of the Indenture; (iii) the
Guarantee Trustee has the requisite power and authority to execute, deliver
and perform its obligations under the Guarantee Agreement and has taken all
necessary corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement; (iv) the Property Trustee has
the requisite power and authority to execute and deliver the Trust Agreement
and has taken all necessary corporate action to authorize the execution and
delivery of the Trust Agreement; (v) each of the Indenture and the Guarantee
Agreement has been duly executed and delivered by
18
the Indenture Trustee and the Guarantee Trustee, respectively, and
constitutes a legal, valid and binding obligation of the Indenture Trustee
and the Guarantee Trustee, respectively, enforceable against the Indenture
Trustee and the Guarantee Trustee, respectively, in accordance with their
respective terms, except that certain payment obligations may be enforceable
solely against the assets of the Trust and except that such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation, fraudulent conveyance and transfer or other similar laws
affecting the enforcement of creditors' rights generally, and by principles
of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and by
the effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution; and (vi) the Junior
Subordinated Debentures delivered at the Closing Time have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
(d) Opinion of Special Delaware Counsel for the Offerors. At the
Closing Time, the Underwriters shall have received an opinion, dated as of
the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel
to the Offerors, to the effect that: (i) the Trust has been duly created and
is validly existing in good standing as a business trust under the Delaware
Act, and all filings required as of the date hereof under the Delaware Act
with respect to the creation and valid existence of the Trust as a business
trust have been made; (ii) under the Trust Agreement and the Delaware Act,
the Trust has the trust power and authority to own property and to conduct
its business, all as described in the Prospectus; (iii) the Trust Agreement
constitutes a valid and binding obligation of the Company and each of the
Property Trustee and the Administrative Trustees, and is enforceable against
the Company and each of the Property Trustee and the Administrative Trustees
in accordance with its terms; (iv) under the Trust Agreement and the
Delaware Act, the Trust has the trust power and authority (a) to execute and
deliver, and to perform its obligations under, this Agreement, and (b) to
issue, and to perform its obligations under, the Securities and the Common
Securities; (v) under the Trust Agreement and the Delaware Act, the
execution and delivery by the trust of this Agreement, and the performance
by it of its obligations hereunder, have been duly authorized by all
necessary trust action on the part of the Trust; (vi) the Securities and the
Common Securities have been duly authorized by the Trust Agreement and are
duly and validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of the Trust, and the respective holders
of the Securities and the Common Securities, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware; (vii) under the Trust
Agreement and the Delaware Act, the issuance of the Securities and the
Common Securities is not subject to preemptive or similar rights; and (viii)
the issuance and sale by the Trust of the Securities and the Common
Securities, the purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of this Agreement, the
consummation by the Trust of the transactions contemplated by this Agreement
and compliance by the Trust with its obligations under this Agreement do not
violate (A) any of the provisions of the Certificate of Trust or the Trust
Agreement, or (B) any applicable Delaware law or administrative regulation.
(e) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special
counsel for the Underwriters, in form and substance satisfactory to the
Underwriters. Such counsel may state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of Trustees of the Trust, officers of the Company and its
Subsidiaries and certificates of public officials, provided that such
counsel shall state their belief that they and the Underwriters are
justified in relying thereon.
(f) Certificates. At the Closing Time, there shall not have been,
since the date of this Agreement or since the respective dates as of which
information is given in the Prospectus, any Material Adverse Effect, and the
Underwriters shall have received a certificate of the Chairman, the Chief
Executive Officer or the President of the Company and of the Chief Financial
Officer or the chief accounting officer of the Company and a certificate of
the Administrative Trustees of the Trust, dated as of the Closing Time, to
the effect that (i) there has been no such Material Adverse Effect, (ii) the
representations and warranties in Section 1 this Agreement were true and
correct when made and are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Offerors have
complied with all agreements
19
and satisfied all conditions on their part to be performed or satisfied at
or prior to the Closing Time and (iv) all conditions to the obligations
under the Merger Agreement of each of the Company and the Southside to
consummate the Merger shall have been satisfied or waived.
(g) Accountants' Comfort Letters. At the time of the execution of
this Agreement, the Underwriters shall have received from Ernst & Young LLP,
KPMG LLP and ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ & Co. LLP (collectively, the
"Accountants"), such date, in form and substance satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information included in the
Prospectus, provided that such statements may be as of a date up to three
business days prior to the date of delivery.
(h) Bring-down Comfort Letter. At the Closing Time, the
Underwriters shall have received from each of the Accountants a letter dated
as of the Closing Time, to the effect that they reaffirm the statements made
in the letter furnished by it pursuant to subsection (h) of this Section,
except that the specified date referred to shall be a date not more than
three business days prior to the Closing Time.
(i) Approval of Listing. At the Closing Time, the Preferred
Securities shall have been approved for quotation and inclusion on the
Nasdaq National Market, subject to official notice of issuance.
(j) Agreement for Third Party Loan. The Company shall have entered
into definitive agreements with respect to borrowing from a third party
lender funds (including, without limitation, borrowing additional funds from
a third party lender who currently has loaned funds to the Company for other
purposes), which when considered with the net proceeds from the sale of the
Securities and the Company's cash on hand, will be sufficient to pay the cash
consideration payable to Southside shareholders pursuant to the Merger and
related fees and expenses and to fund ordinary business operations consistent
with past practices, but which agreement shall in any event permit the Company
to borrow not less than $35 million for such purposes.
(k) Obligations of the Surviving Corporation under the Operative
Documents. All conditions precedent under each of the Operative Documents,
other than consummation of the Merger and the delivery of the merger
consideration, to the succession of the Surviving Corporation to all of the
Company's obligations under each of the Operative Documents shall have been
satisfied or duly waived, and the Underwriters shall have received copies of
all documentation required to evidence same.
(l) Conditions to Purchase of Optional Preferred Securities. In the
event that the Underwriters exercise their option provided in Section 2(b)
this Agreement to purchase all or any portion of the Optional Preferred
Securities, (x) the representations and warranties of the Company and the
Trust contained in this Agreement and the statements in any certificates
furnished by the Company and any Trustee hereunder shall be true and correct
as of each Date of Delivery, (y) at the relevant Date of Delivery, no stop
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the satisfaction
of counsel to the Underwriters, and (z) at the relevant Date of Delivery,
the Underwriters shall have received:
(i) Opinion of Outside Counsel for Offerors. The favorable
opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Offerors, in form and
substance satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Optional Preferred Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) of this Agreement.
(ii) Opinion of Counsel for Bankers Trust Company. The
favorable opinion, dated such Date of Delivery, of ___________, counsel to
Bankers Trust Company, as Property Trustee under the Trust Agreement,
Guarantee Trustee under the Guarantee Agreement and Debenture Trustee under
the Indenture, in form and substance satisfactory to counsel for the
Underwriters, relating to the Optional Preferred Securities to be Purchased
on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) of this Agreement.
20
(iii) Opinion of Special Delaware Counsel for the Offerors.
The favorable opinion, dated such Date of Delivery, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Finger, P.A., special Delaware counsel to the Offerors, in form and substance
satisfactory to counsel for the Underwriters relating to the Optional Preferred
Securities to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(d) of this Agreement.
(iv) Opinion of Counsel for the Underwriters. The favorable
opinion, dated such Date of Delivery, of Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Underwriters, relating to the Optional
Preferred Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(e) of this
Agreement.
(v) Certificates. Certificates, dated such Date of
Delivery, of the Chairman, the Chief Executive Officer, the President or any
Vice President of the Company and of the Chief Financial Officer of the
Company and a certificate of an Administrative Trustee of the Trust,
confirming that the certificates delivered at the Closing Time pursuant to
Section 5(f) this Agreement remain true and correct as of such Date of
Delivery.
(vi) Bring-down Comfort Letter. A letter from each of the
Accountants dated such Date of Delivery, in form and substance satisfactory
to the Underwriters, substantially in the same forms and substance as the
letters furnished to the Underwriters pursuant to Section 5(g) of this
Agreement, except that the specified date referred to shall be a date not
more than three business days prior to such Date of Delivery.
(m) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Preferred Securities as in this Agreement
contemplated, or in order to evidence the accuracy of any of the
representations or warranties of the Offerors, or the fulfillment of any of
the conditions, contained in this Agreement; and all proceedings taken by
the Offerors in connection with the issuance and sale of the Preferred
Securities as contemplated in this Agreement shall be reasonable
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
(n) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Underwriters by notice to the
Offerors at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as
provided in Section 4 this Agreement and except that Sections 6 and 7 of
this Agreement shall survive any such termination and remain in full force
and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Offerors agree to jointly
and severally indemnify and hold harmless: (x) each of the Underwriters; (y)
each person, if any, who controls (within the meaning of Section 15 of the
1933 Act or Section 20 of the ▇▇▇▇ ▇▇▇) any Underwriter (each such person, a
"controlling person"); and (z) the respective partners, directors, officers,
employees and agents of any Underwriter or any controlling person as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto), including the Rule 430A
Information
21
and the Rule 434 Information, if applicable, or in the Merger Proxy/
Registration Statement or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading or arising out of any untrue statement of a
material fact contained in any preliminary prospectus or Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate amount
paid by each such indemnified person in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement
or omission referred to in clause (i) of this Section 6(a), or any such
alleged untrue statement or omission referred to in clause (i) of this
Section 6(a); provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including subject to Section 6(c), the fees and disbursements of counsel
chosen by ▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission referred to in
clause (i) of this Section 6(a), or any such alleged untrue statement or
omission referred to in clause (i) of this Section 6(a), to the extent that
any such expense is not paid under (i) or (ii) above; provided, however,
that the indemnity agreement set forth in this Section 6(a) shall not apply
to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information furnished in
writing to the Offerors by any Underwriter through ▇▇▇▇ ▇▇▇▇▇ and its
counsel expressly for use in the Registration Statement (or any supplement
or amendment thereto), including the Rule 430A Information an the Rule 434
Information, if applicable, in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto). The foregoing indemnity with
respect to any untrue statement or alleged untrue statement contained in or
omission or alleged omission from a preliminary prospectus shall not inure
to the benefit of the Underwriter (or any person controlling such
Underwriter) from whom the person asserting any loss, liability, claim,
damage or expense purchases any of the Preferred Securities which are the
subject thereof if (A) the Company shall sustain the burden of proving that
such person was not sent or given a copy of the Prospectus (or the
Prospectus as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person, and (B) the
untrue statement contained in or omission from a preliminary prospectus was
corrected in the Prospectus (or the Prospectus as amended or supplemented)
and the Company has previously furnished copies thereof to such Underwriter.
(b) Indemnification of Offerors, Directors and Officers. Each
Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, its directors, officers, the Trust, each of the Trustees and
each person, if any, who controls the Trust, any of the Trustees or the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 6(a) above, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus, or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Offerors by such Underwriter
through ▇▇▇▇ ▇▇▇▇▇ (or its counsel) expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result
22
thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. If an
indemnifying party so elects within a reasonable time after receipt of such
notice, an indemnifying party, severally or jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably acceptable to the
indemnified parties defendant in such action, provided, however, that if (i)
representation of such indemnified party by the same counsel would present a
conflict of interest or (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and any such indemnified party reasonably determines that
there may be legal defenses available to such indemnified party which are
different from or in addition to those available to such indemnifying party,
then, in the case of clauses (i) and (ii) of this Section 6(c), such
indemnifying party and counsel for each indemnifying party or parties shall
not be entitled to assume such defense. If either (A) an indemnifying party
is not entitled to assume the defense of such action as a result of the
proviso to the preceding sentence or (B) an indemnifying party is entitled
under the preceding sentence to assume the defense of such action but fails
to do so in accordance with the provisions of this paragraph within a
reasonable time after the indemnifying party was given notice of
commencement of the action, then, in either case: (x) counsel selected by
the indemnified party or parties shall be entitled to conduct such defense
and (y) such indemnifying party or parties must reimburse all the fees and
expenses of such counsel for the indemnified party or parties as they are
incurred. Notwithstanding the preceding sentence, the indemnifying party or
parties may participate, at its own expense, in the defense of any such
action. If an indemnifying party assumes the defense of such action, in
accordance with and as permitted by the provisions of this paragraph, such
indemnifying parties shall not be liable for any fees and expenses of
counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying parties be liable for fees
and expenses of more than one firm of attorneys (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. Such firm of attorneys shall be designated in writing, in the
case where the indemnified parties are any of the parties indemnified
pursuant to Section 6(a) above, by ▇▇▇▇ ▇▇▇▇▇ and, in the case where the
indemnified parties are any of the parties indemnified pursuant to Section
6(b) above, by the Company. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 of this
Agreement (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes
an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim, (ii)
does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party and (iii) is in a
form and substance satisfactory to the indemnified party. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party agrees to the
extent specified in this Section 6 to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
(d) Settlement Without Consent if Failure to Reimburse.
Notwithstanding the last sentence of Section 6(c), if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement; provided that an
indemnifying party shall not be liable for any such settlement effected
without its consent if such indemnifying party (1) reimburses such
indemnified party in accordance with such request to the extent it considers
reasonable and (2) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
23
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnification provided for
in Section 6 of this Agreement is for any reason held to be unenforceable by
an indemnified party in respect of any losses, liabilities, claims, damages
or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Offerors, on the one hand, and the Underwriters, on the other hand,
from the offering of the Preferred Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Offerors, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors, on
the one hand, and the Underwriters, on the other hand, in connection with
the offering of the Preferred Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds
from the offering of the Preferred Securities pursuant to this Agreement
(before deducting expenses but after deducting the compensation paid to the
Underwriters pursuant to Section 2(c) of this Agreement) received by the
Offerors and the total commission received by the Underwriters, bear to the
aggregate initial offering price of the Preferred Securities. The relative
fault of the Offerors, on the one hand, and the Underwriters, on the other
hand, shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statements of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
the Offerors or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon
any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriters
shall not be required to contribute any amount in excess of the amount by
which the total price at which the Preferred Securities purchased by it and
distributed to the public were offered to the public exceeds the amount of
any damages which that 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each controlling person and the
respective partners, directors, officers, employees and agents of any
Underwriter or any controlling person of any Underwriter shall have the same
rights to contribution as that Underwriter, and each officer and director of
the Company, and each person, if any, who controls (within the meaning of
Section 15 of the 1933 Act or Section 20 of the ▇▇▇▇ ▇▇▇) the Company shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are not
joint but several in proportion to the number of Preferred Securities set
forth against their respective names in Schedule A to this Agreement.
SECTION 8. Representations, Warranties, Agreements and Indemnification
Obligations to Survive Delivery. All representations, warranties, agreements
and indemnification obligations contained in this Agreement or in
certificates of officers of the Company or trustees of the Trust submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of
24
any Underwriter or controlling person, or by or on behalf of the Trust or
the Company, and shall survive delivery of the Preferred Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this
Agreement, by notice to the Offerors, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the
Prospectus, any Material Adverse Effect, or any event, condition or change
that would constitute a Material Adverse Effect upon consummation of the
Merger or (ii) if, since the time of execution of this Agreement, there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity
or crisis, or any change or development involving a prospective change in
national political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Underwriters,
impracticable to market the Preferred Securities or to enforce contracts for
the sale of the Preferred Securities, or, (iii) if, since the time of
execution of this Agreement, trading in any securities of the Company has
been suspended or limited by the Commission or the Nasdaq National Market,
or (iv) if, since the time of execution of this Agreement, trading generally
on the American Stock Exchange or the New York Stock Exchange or in the
Nasdaq National Market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority, or (v) if a banking moratorium has been
declared by either Federal, Missouri or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 of this Agreement, and provided
further that Sections 1, 6 and 7 of this Agreement shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one of the
Underwriters fails at the Closing Time or a Date of Delivery to purchase the
Preferred Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), ▇▇▇▇ ▇▇▇▇▇ shall have the right,
within 24 hours of the Closing Time or the Date of Delivery, if applicable,
to make arrangements for it or any person(s) selected by it as substitute
Underwriter(s) to purchase all or some of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms set forth in this
Agreement; if, however, ▇▇▇▇ ▇▇▇▇▇ shall not have completed such
arrangements within such 24-hour period, then this Agreement shall terminate
without liability on the part of the non-defaulting Underwriter. No action
taken pursuant to this Section 10 shall relieve the defaulting Underwriter
from liability in respect of its default. If any such default does not
result in a termination of this Agreement, either the Underwriters or the
Company shall have the right to postpone the Closing Time or Date of
Delivery for a period not exceeding five days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. In this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Incorporated, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Managing Director, with a copy to Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. del Hierro, Esq. Notices to the Offerors shall be
directed to Allegiant Bancorp Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is
25
intended or shall be construed to give any person, firm or corporation,
other than the Underwriters and the Offerors and their respective successors
and the controlling persons and officers and directors referred to in
Sections 1, 6 and 7 of this Agreement and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained in this Agreement. This
Agreement and all conditions and provisions of this Agreement are intended
to be for the sole and exclusive benefit of the Underwriters and the
Offerors and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Preferred Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES.
SECTION 14. Effect of Headings. The Article and Section headings in this
Agreement are for convenience only and shall not affect the construction of
this Agreement.
{SIGNATURE PAGE FOLLOWS}
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart of this
Agreement, whereupon this instrument, along with all counterparts, will
become a binding agreement between the Underwriters and the Offerors in
accordance with its terms.
Very truly yours,
ALLEGIANT BANCORP, INC.
By
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
ALLEGIANT CAPITAL TRUST II
By
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Administrative Trustee
By
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
For itself and as the Representative of the several
Underwriters named in Schedule A hereto:
By:
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
27
SCHEDULE A
Number
Of
Preferred
Name of Underwriter Securities
------------------- ----------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
---------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
---------------------------
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc.
---------------------------
Total 1,200,000
28
EXHIBIT A
1. The Company has been duly organized and is a validly existing
corporation in good standing under the laws of Missouri. Each of the
Subsidiaries (other than the Trust) has been duly organized and is validly
existing as a bank or other entity in good standing under the laws under
which it was organized. Each of the Company and the Subsidiaries (other than
the Trust) has all necessary power and authority, corporate or otherwise, to
own, lease and operate their respective properties and assets and to conduct
their respective businesses as described in the Registration Statement and
the Prospectus, and each is duly qualified to do business as a foreign
corporation or other applicable form of business organization and is in good
standing in each jurisdiction in which its ownership or lease of real
property or the conduct of its business makes such qualification necessary,
except when the failure to so qualify would not have a Material Adverse
Effect.
2. Each Offeror has all necessary power and authority, corporate,
trust or otherwise, to enter into and perform the Agreement, the Indenture,
the Trust Agreement, the Guarantee Agreement and the Merger Agreement, as
applicable, and to effect the transactions contemplated thereby and the
Merger. The performance of the Offerors' respective obligations under the
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and
the Merger Agreement, as applicable, have been duly authorized by all
necessary action. The Agreement, the Indenture, the Merger Agreement, the
Trust Agreement, and the Guarantee Agreement have been duly executed and
delivered by and on behalf of the Trust and/or the Company, as applicable,
and, assuming due authorization, execution and delivery of such agreements
by the other parties thereto, constitute legal, valid and binding agreements
of the Trust and/or the Company, as applicable, enforceable in accordance
with their respective terms, except as enforceability of the same may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws of general applicability relating to or
affecting creditors' rights generally and by general equity principles and
limitations under the 1933 Act as to the enforceability of indemnification
provisions. No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body or, to the best of our knowledge and information, after
due inquiry, third party, is necessary in connection with the execution and
delivery of the Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement or the Merger Agreement and the consummation of the transactions
contemplated therein or as contemplated by the Prospectus (other than as may
be required by the 1939 Act, the NASD or as required by state securities or
blue sky laws, as to which we express no opinion) except such as have been
obtained or made [specifying the same].
3. The authorized capital stock of the Company is as set forth in
the Prospectus under "Capitalization". Based solely upon a certificate
received from the Company's transfer agent, the issued and outstanding
capital stock of the Company is as set forth in the Prospectus under
"Capitalization". All of the shares of outstanding capital stock of the
Company have been duly authorized and validly issued, are non-assessable and
were not issued in violation of any preemptive rights or, to the best of our
knowledge, other rights to subscribe for or purchase securities. The shares
of outstanding capital stock of the Company indicated on Schedule I hereto
[supplying such schedule] and, based solely upon a certificate received from
the Company, all other outstanding shares of capital stock of the Company
are fully paid. Except as set forth in the Registration Statement and the
Prospectus and except for stock options granted to employees and directors
of the Company and the Subsidiaries or pursuant to the Merger Agreement
(which have been described in the Registration Statement to the extent
required by the 1933 Act or the 1934 Act), to the best of our knowledge, no
options, warrants or other rights to convert any obligation into, or
exchange any securities for, shares of capital stock or ownership interests
in the Company are outstanding.
4. To the best of our knowledge, after due inquiry, neither the
filing of the Registration Statement or any amendment thereto nor the offer
and sale of the Preferred Securities to the Underwriters as contemplated by
the Agreement gives rise to any rights, nor do any rights exist, for or
relating to the registration under the 1933 Act of any securities of either
Offeror.
5. Each of the Registration Statement and the Merger Proxy/
Registration Statement has become effective under the 1933 Act, the
Prospectus has been filed as required by the Agreement, if necessary, and to
the best of our knowledge: (a) after telephonic inquiry of the Commission,
no stop order suspending the effectiveness of the Registration Statement or
the Merger Proxy/Registration Statement has been issued; and (b) no
proceedings for that purpose are pending or have been initiated or
threatened by the Commission. The Registration Statement (including the
information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A, if
applicable), the Prospectus and each amendment or supplement thereto and the
Merger Proxy/Registration Statement (except for the financial statements and
other statistical or financial data included therein, as to which we express
no opinion) comply as to form in all material respects with the requirements
of the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
6. The descriptions in the Registration Statement and Prospectus of
contracts, instruments and other documents filed as exhibits to the
Registration Statement, and the description of legal and governmental
proceedings, are accurate in all material respects, and we do not know of
any action, suit, proceeding, inquiry or investigation before or brought by
any Governmental Entity required to be described in the Prospectus that is
not described, or of any contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not described and filed
as required.
7. Neither the filing of the Registration Statement, any amendment,
or the Merger Proxy/Registration Statement, nor the execution and
performance of the Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement, or the Merger Agreement, nor the consummation of the
transactions contemplated therein, will contravene any of the provisions of,
or result in a default under (nor, to the best of our knowledge, has any
event occurred which with notice or lapse of time, or both, would constitute
a breach or default under), any Agreements and Instruments to which the
Trust or the Company is a party or by which their respective property is
bound (except for such contravention or default which would not have a
Material Adverse Effect), or violate any of the provisions of the Articles
of Incorporation, as amended, or by-laws of the Company, as currently in
effect, or violate any statute, judgment, decree, order, rule or regulation
known to us.
8. Neither the Trust, the Company nor any Subsidiary is an
"investment company" or a company controlled by an "investment company"
within the meaning of the 1940 Act.
9. The statements in the Prospectus under the caption "Description
of Trust Preferred Securities," "Description of Junior Subordinated
Debentures," "Description of Guarantee" and "Relationship Among the Trust
Preferred Securities, the Junior Subordinated Debentures and the Guarantee,"
insofar as such statements constitute matters of law applicable to the
Offerors or summaries of documents, fairly present the information required
to be included therein in all material respects.
10. All of the issued and outstanding Common Securities of the
Trust are owned by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
11. Each of the Indenture, the Trust Agreement and the Guarantee
Agreement has been duly qualified under the 1939 Act.
12. The Subordinated Debentures are subordinate and junior in right
of payment to all Senior Indebtedness (as defined in the Indenture) of the
Company.
13. No Tax Event, Capital Treatment Event or Investment Company
Event (each as defined in the Indenture) has occurred.
14. The statements set forth in the Prospectus under the caption
"Certain U.S. Federal Income Tax Consequences" constitute a fair and
accurate summary in all material respects of the matters addressed therein,
based upon current law and the assumptions stated or referred to therein.
15. To the best of our knowledge and information after due inquiry,
the Trust is not required to be authorized to do business in any
jurisdiction other than Delaware and Missouri, and the Trust is not a party
to or otherwise bound by any agreement other than those described in the
Prospectus.
16. The Company satisfied, on the date of initial filing of the
Registration Statement and on the date of filing of any post-effective
amendment filed on or before the date hereof and any registration statement
pursuant to Rule 462 under the 1993 Act filed on or before the date hereof,
the eligibility requirements to use Form S-3 to
register offerings and sales of its securities, and the Offerors are legally
permitted, pursuant to the terms of the 1933 Act, to offer and sell the
Securities pursuant to the Registration Statement.
All conditions precedent under each of the Indenture, the Trust
Agreement and the Guarantee Agreement, other than consummation of the
Merger, to the succession of the Surviving Corporation to all of the
Company's obligations under each of the Indenture, the Trust Agreement and
the Guarantee Agreement have been satisfied and, upon consummation of the
Merger, all of the Company's obligations under each of the Indenture, the
Trust Agreement and the Guarantee Agreement will become the obligations of
the Surviving Corporation without any further action required by any person
or entity.
In addition, we have participated in conferences with officers and
other representatives of the Offerors, representatives of the independent
public accountants of the Company, representatives of the Underwriters and
their counsel, and officers and representatives of Southside and its counsel
at which the contents of the Registration Statement, the Prospectus and the
Merger Proxy/Registration Statement and related matters were discussed and,
although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus and the Merger Proxy/Registration
Statement (except as specifically set forth above) and have not made any
independent check or verification thereof, on the basis of the foregoing
(relying as to materiality upon the statements of officers and other
representatives of the Company), no facts have come to our attention that
lead us to believe that the Registration Statement or any amendment
(including any post-effective amendment) thereto at the time such
Registration Statement or amendment became effective, and as of the Closing
Date and any Date of Delivery, or the Merger Proxy/Registration Statement at
the time the Merger Proxy Registration Statement became effective and as of
the Closing Date and any Date of Delivery contained or contains an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or that the
Prospectus or any amendment or supplement thereto as of their respective
dates and as of the Closing Date and any Date of Delivery contained or
contains an untrue statement of a material fact or omitted or omits to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that we express no views with respect to the
financial statements, schedules and other financial and statistical data
included in the Registration Statement, the Prospectus or the Merger
Proxy/Registration Statement.