EXHIBIT 1.1
STERLING BANCSHARES, INC.
(a Texas Corporation) and
Sterling Bancshares Capital Trust II
(a Delaware statutory business trust)
$25,000,000
9.20% Cumulative Trust Preferred Securities
UNDERWRITING AGREEMENT
----------------------
March 15, 2001
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
as the Underwriters,
c/▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Director
Ladies and Gentlemen:
Sterling Bancshares Capital Trust II (the "Trust"), a statutory business
trust organized under the Delaware Business Trust Act, 12 Del. C. (S)(S) 3801 et
seq. (the "Delaware Act"), and Sterling Bancshares, Inc., a Texas corporation
(the "Company" and together with the Trust, the "Offerors"), confirm their
agreement (the "Agreement") with ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated ("▇▇▇▇
▇▇▇▇▇") and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇") (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 9.20% Cumulative Trust Preferred Securities (liquidation
amount $25 per 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 150,000 additional preferred securities to cover overallotments, if any. In
this Agreement, the 1,000,000 preferred securities (the "Initial Preferred
Securities") to be purchased by the Underwriters and all or any part of the
150,000 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 (as defined below), with respect to distributions
and amounts payable upon liquidation or redemption (the "Preferred Securities
Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
"Preferred Securities 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 Declaration (as defined in this Agreement), the Indenture (as
defined in this Agreement), and the Preferred Securities 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") guaranteed by the Company, to
the extent set forth in the Prospectus, with respect to distributions and
amounts payable upon liquidation or redemption (the "Common Securities
Guarantee" and, together with the Preferred Securities Guarantee, the
"Guarantees") pursuant to the Common Securities Guarantee Agreement (the "Common
Securities Guarantee Agreement" and, together with the Preferred Securities
Guarantee Agreement, the "Guarantee Agreements"), to be dated as of Closing
Time, executed and delivered by the Company for the benefit of the holders from
time to time of the Common Securities, and will be used by the Trust to purchase
the 9.20% 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
Declaration of Trust, to be dated as of Closing Time (the "Declaration"), among
the Company, as Sponsor, Bankers Trust Company, as property trustee (the
"Property Trustee"), Bankers Trust (Delaware), as Delaware trustee (the
"Delaware Trustee"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇ Bridgwater 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 and as supplemented by a supplemental
indenture, to be dated as of the Closing Time (collectively, the "Indenture"),
between the Company and Bankers Trust Company, as debenture trustee (the
"Debenture Trustee").
The Preferred Securities, the Preferred Securities Guarantee and the
Subordinated Debentures are collectively referred to in this Agreement as the
"Securities." The Indenture, the Declaration 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 Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, as amended (Nos. 333-55724,
▇▇▇-▇▇▇▇▇-▇▇ and 333-55724-02) 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
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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, 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 March 12, 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, 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 ("▇▇▇▇▇").
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 the filing of any document 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 and as of the Closing Time referred to in Section 2(c) of this
Agreement 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
meets the requirements for use of Form S-3 under the 1933 Act. 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
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instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement and any post-
effective amendments thereto became effective and at the Closing Time (and, if
any Optional Preferred Securities are purchased, at the Date of Delivery), the
Registration Statement and any amendments and supplements thereto 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 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, if
any Optional Preferred Securities are purchased, at the 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 the 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 (A) 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 either of
▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ expressly for use in the Registration Statement or
Prospectus (or any supplement thereto) and (B) that part of the Registration
Statement which shall constitute the Statements of Eligibility and Qualification
(Forms T-1) under the 1939 Act.
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 in the
Prospectus, at the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time, 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, not
misleading.
(iii) 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
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Company within the meaning of the 1933 Act and the rules and regulations of the
Commission under the 1933 Act Regulations.
(iv) Financial Statements. The consolidated historical financial
statements, together with the related schedules and notes, of the Company and
its consolidated subsidiaries included in the Registration Statement and the
Prospectus present fairly, in all material respects, the consolidated financial
position of the Company and its consolidated subsidiaries, at the dates
indicated and the statements of income, changes in shareholders' equity and cash
flows of the Company and its consolidated 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; the supporting schedules, if any,
included in the Registration Statement and the Prospectus present fairly, in all
material respects, the information required to be stated therein; and the
summary financial data 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 pro forma combined financial information included in
the Registration Statement and the Prospectus present fairly the information
relating to the Company, and to the Company's knowledge, the information
relating to CaminoReal Bancshares, Inc., a Texas corporation ("CaminoReal")
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, included in the Registration
Statement present fairly in accordance with GAAP the information required to be
restated therein. The selected financial data and the summary financial
information included in 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 in the Registration Statement.
(v) 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, or in the earnings,
business affairs or business prospects 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 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
and the Company's preferred stock.
(vi) 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 Texas and each of the Company and Sterling Bancorporation,
Inc., a Delaware corporation ("Bancorporation") 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,
5
lease and operate its properties and to conduct its business as now being
conducted and described in the Prospectus. Each of the Company and
Bancorporation 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.
(vii) Good Standing of the Bank. Sterling Bank (the "Bank") has
been duly organized and is validly existing as a Texas 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.
(viii) No Other Significant Subsidiaries. There are no
"significant subsidiaries" of the Company (as such term is defined in Rule 1-102
of Regulation S-X) other than the Bank and Sterling Capital Mortgage Company, a
Texas corporation ("SCMC"). The subsidiaries of the Company other than the Bank
or SCMC considered in the aggregate as a single subsidiary, do not constitute a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X.
(ix) Good Standing of the Subsidiaries. Each of the Company's
subsidiaries has been duly organized and is validly existing as a corporation or
limited partnership, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or organization and has corporate or
partnership 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;
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.
(x) Capital Stock Duly Authorized and Validly Issued. All of the
issued and outstanding capital stock of the Company's corporate subsidiaries has
been duly authorized and validly issued, is fully paid and non-assessable and
the shares owned by the Company, directly or indirectly, 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.
(xi) Capitalization. The authorized, issued and outstanding
capital stock of the Company as of September 30, 2000 is as set forth in the
Prospectus in the column entitled "Actual" 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); 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.
(xii) 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
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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
material agreement other than those described in the Prospectus; and the Trust
is and will be, under current law, classified for United States federal income
tax purposes as a grantor trust and not as an association taxable as a
corporation.
(xiii) Authorization of Common Securities. The Common Securities
have been duly authorized for issuance by the Trust pursuant to the Declaration
and, when issued, executed and authenticated in accordance with the Declaration
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. The issuance of the Common Securities is not subject to preemptive or
other similar rights; and at the Closing Time 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.
(xiv) Authorization of Preferred Securities. At the Closing
Time, the Preferred Securities will have been duly authorized for issuance by
the Trust pursuant to the Declaration and, when issued, executed and
authenticated in accordance with the Declaration 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.
(xv) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Offerors.
(xvi) Authorization of Declaration. The Declaration 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
Declaration by the Trustees, the Declaration will, at the Closing Time, 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 (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
Exceptions").
(xvii) Authorization of Guarantees. The Preferred Securities
Guarantee has been qualified under the 1939 Act and has been duly authorized by
the Company; at the Closing Time, each of the Guarantees 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 Preferred Securities Guarantee will conform
in all material respects to the description thereof in the Prospectus.
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(xviii) Authorization of Indenture. The Indenture 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
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.
(xix) Authorization of Subordinated Debentures. The Subordinated
Debentures have been duly authorized by the Company; at the Closing Time, 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.
(xx) 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.
(xxi) Trust and Company Not Investment Company. 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").
(xxii) Accuracy of Disclosure. The Operative Documents conform
in all material respects to the descriptions thereof contained in the
Prospectus.
(xxiii) 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 Declaration, and neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws; 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 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") 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 by
the Trust or the Company, as the case may be, (B) the issuance, sale and
delivery of the Preferred Securities, the Subordinated Debentures, the Preferred
Securities Guarantee and the Common Securities Guarantee, (C) the consummation
of (x) the transactions contemplated by the Operative Documents and (y) the
merger (the "Merger") of CaminoReal with and into CRB Merger Corp. ("CRBMC"), a
wholly-owned subsidiary of the Company pursuant to the Agreement and Plan of
Merger (the "Merger Agreement") dated as of October 23, 2000 by and among the
Company, Bancorporation and CaminoReal
8
(collectively, the "Merger Parties"), and (D) compliance by the Offerors with
the terms of the Operative Documents 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, 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 Company's 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 charter or by-laws of the Company or any of
its subsidiaries or the Declaration 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
Texas Department of Banking, and the Federal Deposit Insurance Corporation
(each, a "Governmental Entity"). 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 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.
(xxiv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, has been threatened, which may reasonably be expected to result
in a Material Adverse Effect.
(xxv) 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 knowledge
of the Trust or the Company, 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, in the reasonable judgment of
the Trust or the Company might result in a Material Adverse Effect, or which in
the reasonable judgment of the Company might materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated by the Operative Documents or the performance by the Trust or the
Company of its obligations hereunder or thereunder.
(xxvi) 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, as
applicable, or the consummation by the Trust and the Company of the transactions
contemplated by the Operative Documents (including the Merger).
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(xxvii) 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 subsidiary of the
Company has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, in the reasonable judgment of the Company, is likely to result in a
Material Adverse Effect.
(xxviii) 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, other than (i) that certain Letter Agreement,
as amended, between the Company and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association dated February 2, 2000 and (ii) the Agreement and Plan of Merger
between the Company and CaminoReal dated as of October 23, 2000.
(xxix) 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 including the documents incorporated therein by
reference 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 possession of the leased or subleased premises
under any such lease or sublease.
(xxx) Regulation M. The Company has not taken and will not take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Preferred Securities.
(xxxi) Authorization of Merger Agreement. The Merger Agreement
has been duly authorized, executed and delivered by each of the Company and
Bancorporation and, assuming due authorization, execution and delivery thereof
by CaminoReal, constitutes a valid, legal and binding agreement of the Company
and Bancorporation, enforceable against the Company and Bancorporation in
accordance with its terms except to the extent enforceability may be limited by
the Enforceability Exceptions and except that enforcement of rights to
indemnification and
10
contribution contained therein may be limited by applicable federal or state
laws or the public policy underlying such laws.
(xxxii) CaminoReal Material Adverse Change. To the knowledge of
the Company and based solely upon conversations with officers of CaminoReal and
the due diligence performed by the Company in connection with the proposed
acquisition of CaminoReal, since the respective dates of which information is
given in the Prospectus, there has not been any change in the condition,
financial or otherwise, or in the earnings or business affairs of CaminoReal and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, that would have a Material Adverse Effect.
(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 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
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, other than sales aggregating no more than $5,000,000 to such
persons identified by the Company and provided to the Underwriters in writing on
or before the date hereof, with respect to which the Company hereby agrees to
pay at the Closing Time by wire transfer of immediately available funds a
commission of $0.4375 per Preferred Security.
(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 150,000
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, Houston, Texas time, on the 30/th/ 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 the
Underwriters to the Trust setting forth the number of Optional Preferred
Securities as to which the
11
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
shall not be later than seven full business days after the exercise of said
option, nor in any event 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 ▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., Houston, Texas, 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 not later than ten (10) business days after such
date 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.
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 certificates for 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.
(d) Denominations; Registration. Certificates for the Initial
Preferred Securities and the Optional Preferred Securities, if any, shall be in
such denominations and registered in such names as the Underwriters may request
in writing at least one business day before the Closing Time or the relevant
Date of Delivery, as the case may be. All such certificates shall be made
available for examination and packaging by the Underwriters in New York, New
York not later than 10:00 a.m. (Eastern time) on the last business day prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
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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 from the Commission, (iii)
of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or 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. 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 Company and the
Trust will make every reasonable effort 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.
(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 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,
13
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 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
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 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, to qualify the Preferred
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Underwriters may reasonably designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement; 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.
(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
securityholders as soon as practicable an earnings 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 (x)
any filing made by the Offerors of information relating to the offering of the
Preferred Securities with any securities exchange or any other regulatory body
in the United States, and (y) 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 (i)
makes any statement in the Prospectus false or misleading or (ii) is not
disclosed in the Prospectus. In such event or if during such time any event
14
shall occur as a 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 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 reasonable commercial efforts to permit the Preferred Securities to be
eligible for clearance and settlement through the facilities of 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 Company will use its commercially
reasonable efforts to effect the quotation of the Preferred Securities 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) Restriction on Sale of Securities. During a period of 180 days
from the date of the Prospectus, neither the Company nor the Trust will, without
the prior written consent of ▇▇▇▇ ▇▇▇▇▇, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or other wise transfer or dispose of any Preferred Securities or
Subordinated Debentures (or any equity or debt securities substantially similar
to the Preferred Securities or Subordinated Debentures, respectively) or any
capital stock of the Company, or any securities convertible into or exercisable
or exchangeable for Preferred Securities or Subordinated Debentures (or any
equity or debt securities substantially similar to the Preferred Securities or
Subordinated Debenture, respectively) or file any registration statement under
the 1933 Act with respect to any of the foregoing, or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of Preferred
Securities or Subordinated Debentures (or any equity or debt securities
substantially similar to the Preferred Securities or Subordinated Debentures,
respectively) or any capital stock of the Company, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Preferred Securities
15
or Subordinated Debentures (or any equity or debt securities substantially
similar to the Preferred Securities or Subordinated Debentures, respectively) or
such other securities, in cash or otherwise. The foregoing sentence shall not
apply to the Preferred Securities or Subordinated Debentures to be sold
hereunder.
Notwithstanding the foregoing, during such 180-day period (i) the
Company may grant stock options, rights or warrants pursuant to the Company's
director or employee benefit or compensation plans or arrangement which are in
place as of the date hereof, (ii) the Company may issue shares of common stock
upon the exercise of an option, right or warrant of the conversion of a security
pursuant to such plans or arrangements or otherwise outstanding as of the date
hereof; (iii) the Company may issue shares of common stock upon the conversion
of its shares of preferred stock outstanding as of the date hereof and may issue
additional shares of preferred stock in connection with the opening of any new
banking office consistent with prior practices; (iv) the Company may issue
shares of common stock in connection with the acquisition of Lone Star
Bancorporation, Inc., a Texas corporation ("Lone Star"); and (v) the Company may
file a registration statement under the 1933 Act (a) in connection with the
registration of securities pursuant to an employee stock option, stock purchase,
dividend reinvestment plan or other similar plan, and (b) for the purpose of
registering the shares of the Company's common stock to be issued to the
shareholders of Lone Star in connection with the acquisition of Lone Star.
(m) 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.
(n) 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
securityholders 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.
SECTION 4. Payment of Expenses.
(a) Expenses. 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 and any filing 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;
16
(iii) the preparation, issuance and delivery of the certificates
for the Preferred Securities to the Underwriters, including any stock 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) rating agency fees, if any;
(vi) 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;
(vii) the qualification of the Preferred Securities under
securities laws in accordance with the provisions of Section 3(f) of this
Agreement, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection
with the preparation of the Blue Sky Survey and any supplement thereto, if
any;
(viii) 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;
(ix) the preparation, printing and delivery supplement thereto,
if any;
(x) the fees and expenses of any transfer agent or registrar for
the Preferred Securities;
(xi) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review
by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Preferred Securities;
(xii) 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;
(xiii) the fees and expenses of the Indenture Trustee, including
the fees and disbursements of counsel for the Indenture Trustee in
connection with the Indenture and the Subordinated Debentures;
(xiv) the fees and expenses of the Delaware Trustee and the
Property Trustee, including the fees and disbursements of counsel for the
Delaware Trustee and Property Trustee in connection with the Declaration
and the Certificate of Trust;
(xv) the fees and expenses of the Guarantee Trustee;
17
(xvi) any fees and expenses in connection with the rating of the
Preferred Securities and the Subordinated Debentures;
(xvii) the cost and charges of qualifying the Preferred
Securities with the DTC; and
(xviii) all travel and lodging expenses incurred by the
Underwriters in connection with this Offering and any informational "road
show" meetings held in connection with the Offering and all expenses
related to the preparation of all materials used in connection with such
meetings.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
or (iii) 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 ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., counsel for the
Underwriters. If this Agreement is terminated by the Underwriters in accordance
with the provisions of Section 9(a)(ii), (iv) or (v) of this Agreement, the
Company shall reimburse the Underwriters for one-half ( 1/2) of their actual
accountable out-of-pocket expenses, including one-half ( 1/2) of the reasonable
fees and disbursements of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., counsel for the
Underwriters.
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 reasonable 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 In-house Counsel for the Company. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Assistant General Counsel and
Assistant Secretary of the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters.
(c) 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 Andrews
18
& ▇▇▇▇▇ L.L.P., Houston, Texas, 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.
(d) Opinion of Special 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 Declaration, Guarantee Trustee under the Preferred Securities
Guarantee Agreement and Debenture Trustee under the Indenture, in form and
substance reasonably satisfactory to counsel for the Underwriters.
(e) Opinion of Special Tax Counsel for the Offerors. At the Closing
Time, the Underwriters shall have received an opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., Houston, Texas, special tax counsel to the
Offerors, in form and substance reasonably satisfactory to counsel for the
Underwriters and substantially to the effect that (i) the Trust will be
classified for United States federal income tax purposes as a grantor trust and
not as an association taxable as a corporation, and (ii) the statements set
forth in the Prospectus under the caption "Certain Federal Income Tax
Consequences" constitute a fair and accurate summary of the anticipated United
States federal income tax consequences of the ownership and disposition of the
Preferred Securities under current law. Such opinion may be conditioned on,
among other things, the initial and continuing accuracy of the facts, financial
and other information, covenants and representations set forth in certificates
of officers of the Company and other documents deemed necessary for such
opinion.
(f) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., special counsel for the Underwriters, in
form and substance reasonably 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.
(g) 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, the President or any Vice President of the Company and of the
Chief Financial Officer or the chief accounting officer of the Company and a
certificate of an Administrative Trustee 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, and (iii) the Offerors have
complied with all agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to the Closing Time.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Underwriters shall have received from Deloitte & Touche LLP (the
"Accountants"), a letter dated such date, in form and substance satisfactory to
the Underwriters, containing statements and
19
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.
(i) Bring-down Comfort Letter. At the Closing Time, the Underwriters
shall have received from the Accountants a letter dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
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.
(j) Approval of Listing. At the Closing Time, the Preferred Securities
shall have been approved for quotation and inclusion on the Nasdaq National
Market.
(k) 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,
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
and, at the relevant Date of Delivery, the Underwriters shall have received:
(i) Opinion of In-House Counsel for the Company. The favorable
opinion of ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Assistant General Counsel and
Assistant Secretary of the Company, in form and substance reasonably
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 effects as the opinion required by
Section 5(b) of this Agreement.
(ii) Opinion of Outside Counsel for Offerors. The favorable
opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel for the Offerors, in form and
substance reasonably 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(c) of this Agreement.
(iii) Opinion of Special Counsel for Bankers Trust Company. The
favorable opinion, dated such Date of Delivery, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel
to Bankers Trust Company, as Property Trustee under the Declaration,
Guarantee Trustee under the Preferred Securities Guarantee Agreement and
Debenture Trustee under the Indenture, in form and substance reasonably
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 Special Tax Counsel for the Offerors. The
favorable opinion, dated such Date of Delivery, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.,
special tax counsel to the Offerors, in form and substance reasonably
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(e) of this
Agreement.
20
(v) Opinion of Counsel for the Underwriters. The favorable
opinion, dated such Date of Delivery, of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P.,
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(f) of this Agreement.
(vi) 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(g) this Agreement remain true and correct as of such Date of Delivery.
(vii) Bring-down Comfort Letter. A letter from the Accountants
dated such Date of Delivery, in form and substance satisfactory to the
Underwriters, substantially in the same form and substance as the letter
furnished to the Underwriters pursuant to Section 5(h) this Agreement,
except that the specified date referred to shall be a date not more than
five days prior to such Date of Delivery.
(l) 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 satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(m) 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 and the Rule 434 Information, if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated therein
21
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 written information furnished
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, or 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
22
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 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
23
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 and (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. 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.
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.
24
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 Securities set forth against their respective names in Schedule
A to this Agreement.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements 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 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,
25
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
(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, Texas 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"), the non-defaulting Underwriter shall
have the right, within 24 hours of the Closing Time, 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, the non-defaulting
Underwriter 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 Bracewell & ▇▇▇▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, Esq. Notices
to the Offerors shall be directed to Sterling Bancshares, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, with a
copy to ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., 600 Travis, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
26
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 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 TEXAS
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]
27
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,
STERLING BANCSHARES, INC.
By--------------------------------------
Name:
Title:
STERLING BANCSHARES CAPITAL TRUST II
By /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Administrative Trustee
By /S/ ▇. ▇▇▇▇▇▇ BRIDGWATER
-------------------------------------
Name: ▇. ▇▇▇▇▇▇ Bridgwater
Title: Administrative Trustee
By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
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:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
28
SCHEDULE A
Number of
Name of Underwriter Preferred Securities
------------------- --------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 500,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated 500,000
---------
Total: 1,000,000
29