Exhibit 1.1
4,500,000 Shares of Common Stock
(No Par Value Per Share)
UNDERWRITING AGREEMENT
__________, 2002
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, INC.
▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
as Representatives of the Several Underwriters
named in Schedule I hereto
▇/▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ Financial Corporation, an Indiana corporation (the "Company")
proposes to issue and sell to the several underwriters listed on Schedule I
hereto (the "Underwriters"), pursuant to the terms of this Agreement, 4,500,000
shares of the Company's common stock, no par value per share (the "Common
Stock"). The aforementioned 4,500,000 shares of Common Stock to be sold to the
Underwriters are herein called the "Firm Shares." Solely for the purpose of
covering over-allotments in the sale of the Firm Shares, the Company further
proposes to issue and sell to the Underwriters, at their option, up to an
additional 675,000 shares of Common Stock (the "Option Shares") upon exercise of
the over-allotment option granted in Section 1 hereof. The Firm Shares and any
Option Shares are herein collectively referred to as the "Designated Shares" and
are more fully described in the Prospectus hereinafter defined You are acting as
representatives of the Underwriters and in such capacity are sometimes herein
referred to as the "Representatives."
The Company hereby confirms as follows its agreement with each of the
Underwriters in connection with the proposed purchase of the Designated Shares.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED SHARES, DESCRIPTION OF
DESIGNATED SHARES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Company hereby agrees to issue and sell to each of the Underwriters and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price of $_______ per share (the "Purchase Price"), the
respective number of Firm Shares set forth opposite the name of such Underwriter
in Schedule I hereto. In accordance with Section 9 hereof, the Representatives
may by notice to the Company amend Schedule I to add, eliminate or substitute
names set forth therein (other than to
eliminate the name of the Representatives) and to amend the number of Firm
Shares to be purchased by any firm or corporation listed thereon, provided that
the total number of Firm Shares listed on Schedule I shall equal 4,500,000.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 675,000 Option Shares, and upon
the exercise of such option in accordance with this Section 1, the Company
hereby agrees to issue and sell to the Underwriters, severally and not jointly,
all or any portion of the Option Shares at the same Purchase Price per share
paid for the Firm Shares; provided that the purchase price per share for any
Option Shares purchased upon the exercise of the over-allotment option shall be
reduced by an amount per share equal to any dividends or distributions declared
by the Company and payable on the Firm Shares but not payable on the Option
Shares. If any Option Shares are to be purchased, each Underwriter, severally
and not jointly, agrees to purchase from the Company that proportion (subject to
adjustment as you may determine to avoid fractional shares) of the number of
Option Shares to be purchased that the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto (or such number increased as
set forth in Section 9 hereof) bears to 4,500,000. The option hereby granted
(the "Option") shall expire 30 days after the date upon which the Registration
Statement (as hereinafter defined) becomes effective and may be exercised only
for the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Firm Shares. The Option may be exercised in
whole or in part at any time (but not more than once) by you giving notice
(confirmed in writing) to the Company setting forth the number of Option Shares
as to which the Underwriters are exercising the Option and the time, date and
place for payment and delivery of the certificates for such Option Shares. Such
time and date of payment and delivery for the Option Shares (the "Option Closing
Date") shall be determined by you, but shall not be earlier than two nor later
than five full business days after the exercise of such Option, nor in any event
prior to the Closing Date (as hereinafter defined). The Option Closing Date may
be the same as the Closing Date.
Payment of the Purchase Price and delivery of certificates for the Firm
Shares shall be made at the offices of ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as shall be
agreed to by the Representatives and the Company, at 10:00 a.m., St. Louis time,
on the third (fourth, if the pricing occurs after 4:30 p.m. (Eastern time) on
any given day) business day after the date hereof, or at such other time not
more than five full business days thereafter as the Company and the
Representatives shall determine (the "Closing Date"). If the Underwriters
exercise the Option to purchase any or all of the Option Shares, payment of the
Purchase Price and delivery of certificates for such Option Shares shall be made
on the Option Closing Date at the offices of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as
the Company and the Representatives shall determine. Such payments shall be made
to an account designated by the Company by wire transfer, in same day funds, in
the amount of the aggregate Purchase Price therefor, against delivery by or on
behalf of the Company to the Underwriters of certificates for the Designated
Shares to be purchased by the Underwriters.
Certificates for Designated Shares to be purchased by the Underwriters
shall be delivered by the Company in fully registered form in such authorized
denominations and registered in such
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names as the Underwriters shall request in writing not later than 12:00 noon,
St. Louis time, two business days prior to the Closing Date and, if applicable,
the Option Closing Date. Certificates for Designated Shares to be purchased by
the Underwriters shall be made available by the Company to the Underwriters for
inspection, checking and packaging at such office as the Underwriters may
designate in writing not later than 1:00 p.m., St. Louis time, on the last
business day prior to the Closing Date and, if applicable, on the last business
day prior to the Option Closing Date.
Time shall be of the essence, and delivery of the certificates for the
Designated Shares at the time and place specified pursuant to this Agreement is
a further condition of the obligations of the Underwriters hereunder.
2. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities
Exchange Act of 1934, as amended (the "1934 Act") and the rules and
regulations thereunder (the "1934 Act Regulations") at the time they
were filed with the Commission, complied as to form in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading.
(ii) The Company has prepared and filed with the Commission a
registration statement on Form S-1 (File Number 333-69586) for the
registration of the Designated Shares under the Securities Act of 1933,
as amended (the "1933 Act"), including the related prospectus subject
to completion, and one or more amendments to such registration
statement may have been so filed, in each case in conformity in all
material respects with the requirements of the 1933 Act and the rules
and regulations promulgated thereunder (the "1933 Act Regulations").
Copies of such registration statement, including any amendments
thereto, each Preliminary Prospectus (as defined herein) contained
therein and the exhibits, financial statements and schedules to such
registration statement, as finally amended and revised, have heretofore
been delivered by the Company to the Representatives. After the
execution of this Agreement, the Company will file with the Commission
(A) if such registration statement, as it may have been amended, has
been declared by the Commission to be effective under the 1933 Act, a
prospectus in the form most recently included in an amendment to such
registration statement (or, if no such amendment shall have been filed,
in such registration statement), with such changes or insertions as are
required by Rule 430A of the 1933 Act Regulations ("Rule 430A") or
permitted by Rule 424(b) of the 1933 Act Regulations ("Rule 424(b)")
and as have been provided to and not objected to by the Representatives
prior to (or as are agreed to by the Representatives subsequent to) the
execution of this Agreement, or (B) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the 1933 Act, an amendment to such registration
statement, including a form of final prospectus, necessary to permit
such
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registration statement to become effective, a copy of which amendment
has been furnished to and not objected to by the Representatives prior
to (or is agreed to by the Representatives subsequent to) the execution
of this Agreement. As used in this Agreement, the term "Registration
Statement" means such registration statement, as amended at the time
when it was or is declared effective under the 1933 Act, including (1)
all financial statements and schedules and exhibits thereto, and (2)
any information omitted therefrom pursuant to Rule 430A and included in
the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion filed with such
registration statement or any amendment thereto (including the
prospectus subject to completion, if any, included in the Registration
Statement and each prospectus filed pursuant to Rule 424(a) under the
▇▇▇▇ ▇▇▇); and the term "Prospectus" means the prospectus first filed
with the Commission pursuant to Rule 424(b)(1) or (4) or, if no
prospectus is required to be filed pursuant to Rule 424(b)(1) or (4),
the prospectus included in the Registration Statement, in each case
including the financial statements and schedules. The date on which the
Registration Statement becomes effective is hereinafter referred to as
the "Effective Date."
(iii) No order preventing or suspending the use of any
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) has been issued by the Commission, any state or other
jurisdiction or other regulatory body, nor has the Commission, any
state or other jurisdiction or other regulatory body, to the knowledge
of the Company, threatened to issue such an order or instituted
proceedings for that purpose. Each Preliminary Prospectus, at the time
of filing thereof, (A) complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and (B) did
not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this representation and
warranty does not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by any of the Underwriters expressly for inclusion in the
Prospectus beneath the heading "Underwriting" (such information
referred to herein as the "Underwriters' Information"). Each
Preliminary Prospectus and the Prospectus will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
("▇▇▇▇▇") system, except to the extent permitted by Regulation S-T.
(iv) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the Company's knowledge, threatened
by the Commission, any state or other jurisdiction or other regulatory
body. At the Effective Date and at all times subsequent thereto, up to
and including the Closing Date and, if applicable, the Option Closing
Date, the Registration Statement and any post-effective amendment
thereto (A) complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and (B) did
not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, not misleading; PROVIDED, HOWEVER, that
this representation and warranty does not apply to Underwriters'
Information. At the Effective Date and at all
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times when the Prospectus is required to be delivered in connection
with offers and sales of Designated Shares, including, without
limitation, the Closing Date and, if applicable, the Option Closing
Date, the Prospectus, as amended or supplemented, (A) complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and (B) did not contain and will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this representation and
warranty does not apply to Underwriters' Information. Since the date
that the Registration Statement was filed with the Commission, no event
has or will have occurred which should have been set forth in an
amendment or supplement to the Registration Statement which has not
then been set forth in such an amendment or supplement. The
Registration Statement will be identical to the electronically
transmitted copy thereof filed with the Commission pursuant to its
▇▇▇▇▇ system, except to the extent permitted by Regulation S-T.
(v) The Company is duly organized and validly existing under
the laws of the State of Indiana, with full corporate and other power
and authority to own, lease and operate its properties and conduct its
business as described in and contemplated by the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus) and as currently being conducted and is duly
registered as a bank holding company under the Bank Holding Company Act
of 1956, as amended (the "BHC Act").
(vi) The Company currently has 29 direct and indirect
subsidiaries. They are listed on Exhibit A attached hereto and
incorporated herein (the "Subsidiaries"). Except for investments of
▇▇▇▇▇ Ventures Incorporated or ▇▇▇▇▇ Ventures Incorporated - SBIC as
described in the Prospectus, the Company does not own or control,
directly or indirectly, more than 5% of any class of equity security of
any corporation, association or other entity other than the
Subsidiaries. Each Subsidiary is a corporation or bank duly organized
or incorporated, as the case may be, validly existing and in good
standing under the laws of its respective jurisdiction of
incorporation; PROVIDED, HOWEVER, that the foregoing representation and
warranty as it relates only to the "good standing" of a Subsidiary does
not apply to any Subsidiary which is incorporated in Indiana or any
other jurisdiction that does not provide good standing certificates.
Each such Subsidiary has full corporate and other power and authority
to own, lease and operate its properties and to conduct its business as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) and as currently being conducted. The deposit accounts of
▇▇▇▇▇ Union Bank and Trust are insured by the Bank Insurance Fund
administered by the Federal Deposit Insurance Corporation up to the
maximum amount provided by law and the deposit accounts of ▇▇▇▇▇ Union
Bank, F.S.B. are insured by the Savings Association Insurance Fund
under the provisions of the Federal Deposit Insurance Act up to the
maximum amount provided by law; and no proceedings for the
modification, termination or revocation of any such insurance are
pending or, to the knowledge of the Company, threatened. ▇▇▇▇▇ Union
Bank and Trust and ▇▇▇▇▇ Union Bank, F.S.B. are referred to herein as
the "Banks".
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(vii) The Company and each of the Subsidiaries is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property
or conducts its business so as to require such qualification and in
which the failure to so qualify would, individually or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis. All of the issued
and outstanding shares of capital stock of the Subsidiaries (A) have
been duly authorized and are validly issued, (B) are fully paid and
nonassessable except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o, and (C) except
for ▇▇▇▇▇ Home Equity Corporation ("IHE") which is at least 90% owned
by the Company and Onset Capital Corporation ("OCC") which is at least
78% owned by the Company, are owned directly or indirectly by the
Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, restriction upon voting or transfer, preemptive
rights, claim or equity and except for the provisions of those certain
shareholder agreements relating to IHE and OCC. Except as disclosed in
the Prospectus or issuable pursuant to compensatory plans or other
programs disclosed in the Prospectus, and except for the provisions of
those certain shareholder agreements relating to IHE and OCC, there are
no outstanding rights, warrants or options to acquire or instruments
convertible into or exchangeable for any capital stock or equity
securities of the Company or the Subsidiaries.
(viii) The capital stock of the Company conforms to the
description thereof contained in the Prospectus (or, if the Prospectus
is not in existence, the Preliminary Prospectus) in all material
respects. The outstanding shares of capital stock and equity securities
of the Company have been duly authorized and validly issued and are
fully paid and nonassessable, and no such shares were issued in
violation of the preemptive or similar rights of any security holder of
the Company; no person has any preemptive or similar right to purchase
any shares of capital stock or equity securities of the Company. Except
as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus), there are no outstanding
rights, options or warrants to acquire any securities of the Company,
and there are no restrictions upon the voting or transfer of any
capital stock of the Company pursuant to the Company's articles of
incorporation or bylaws or any agreement or other instrument to which
the Company is a party or by which the Company is bound.
(ix) The Company has all requisite power and authority to
issue, sell and deliver the Designated Shares in accordance with and
upon the terms and conditions set forth in this Agreement, the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the Preliminary Prospectus). All corporate action
required to be taken by the Company for the authorization, issuance,
sale and delivery of the Designated Shares in accordance with such
terms and conditions has been validly and sufficiently taken. The
Designated Shares, when delivered in accordance with this Agreement,
will be duly and validly issued and outstanding and will be fully paid
and nonassessable, will not be issued in violation of or subject to any
preemptive or similar rights, and will conform in all material respects
to the description thereof in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus). None of the Designated Shares, immediately prior to
delivery,
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will be subject to any security interest, lien, mortgage, pledge,
encumbrance, restriction upon voting or transfer, preemptive rights,
claim, equity or other defect.
(x) The Company and the Subsidiaries have complied in all
material respects with all federal, state and local statutes,
regulations, ordinances and rules as now in effect and applicable to
the ownership and operation of their properties or the conduct of their
businesses as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus) and as currently being
conducted, except in each case for any such noncompliance which would
not have a material adverse effect on the condition (financial or
otherwise), business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis. Neither the Company nor
any non-banking Subsidiary engages directly or indirectly in any
activity prohibited by the Board of Governors of the Federal Reserve
System (the "FRB") or the BHC Act or the regulations promulgated
thereunder. Neither the Company nor any Subsidiary is subject to a
directive from the Commission, the FDIC, the FRB, the Office of Thrift
Supervision (the "OTS"), the Indiana Department of Financial
Institutions (the "DFI") or any other governmental authority to make
any material changes in the method of conducting its business and no
such directive is pending or threatened by such authorities. The
Company knows of no material spill, discharge, leak, emission,
ejection, escape, dumping or release of any kind onto the properties
owned by the Company or into the environment surrounding those
properties, of any toxic or hazardous substances as defined under any
federal, state or local regulations, laws or statutes, except for those
releases permissible under such regulations, laws or statutes or
otherwise allowable under applicable permits and except for such
releases which would not have a material adverse effect on the
condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
(xi) The Company and the Subsidiaries have all material
permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate
federal, state, local or other public authorities ("Permits") as are
necessary to own and lease their properties and conduct their
businesses in the manner described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the Preliminary Prospectus) and as currently being
conducted in all material respects, except where the failure to obtain
or possess any Permit would not, individually or in the aggregate, have
a material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. All such Permits are in full
force and effect and each of the Company and the Subsidiaries are in
all material respects complying therewith, and no event has occurred
that allows, or after notice or lapse of time would allow, revocation
or termination thereof or will result in any other material impairment
of the rights of the holder of any such Permit, subject in each case to
such qualification as may be adequately disclosed in the Prospectus
(or, if the Prospectus is not in existence, the Preliminary Prospectus)
except where such revocation, termination or impairment would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), business, prospects, or results of
operations of the Company and the Subsidiaries on a consolidated basis.
Such Permits
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contain no restrictions that would materially impair the ability of the
Company or the Subsidiaries to conduct their businesses in the manner
consistent with their past practices. Neither the Company nor any of
the Subsidiaries have received notice or otherwise has knowledge of any
proceeding or action relating to the revocation or modification of any
such Permit except where such revocation, termination or impairment
would not, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), business, prospects,
or results of operations of the Company and the Subsidiaries on a
consolidated basis.
(xii) Neither the Company nor any of the Subsidiaries are in
breach or violation of their corporate charter, by-laws or other
governing documents in any material respect. Neither the Company nor
any of the Subsidiaries is, and to the knowledge of the Company no
other party is, in violation, breach or default (with or without notice
or lapse of time or both) in the performance or observance of any term,
covenant, agreement, obligation, representation, warranty or condition
contained in (A) any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease, franchise, license, Permit or any
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, which such breach, violation or
default could have a material adverse effect on the condition
(financial or otherwise), business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis, and to the
knowledge of the Company, no other party has asserted that the Company
or any of the Subsidiaries is in such violation, breach or default
(provided that the foregoing shall not apply to defaults by borrowers
from the Bank), or (B) except as disclosed in the Prospectus (or, if
the Prospectus is not in existence, the Preliminary Prospectus), any
order, decree, judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or
foreign, having jurisdiction over the Company or the Subsidiaries or
any of their respective properties the breach, violation or default of
which could have a material adverse effect on the condition (financial
or otherwise), business, prospects, or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xiii) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus (or, if the
Prospectus in not in existence, the Preliminary Prospectus) do not and
will not conflict with, result in the creation or imposition of any
material lien, claim, charge, encumbrance or restriction upon any
property or assets of the Company or the Subsidiaries or the Designated
Shares pursuant to, constitute a breach or violation of, or constitute
a default under, with or without notice or lapse of time or both, any
of the terms, provisions or conditions of the charter or by-laws of the
Company or the Subsidiaries, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise, license,
Permit or any other agreement or instrument to which the Company or the
Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or any order, decree, judgment, rule
or regulation of any court, arbitrator, government, or governmental
agency or instrumentality, domestic or foreign, having jurisdiction
over the Company or the Subsidiaries or any of their respective
properties which conflict, creation, imposition, breach, violation or
default would have either singly or in the aggregate a material adverse
effect on the condition (financial or
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otherwise), business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of or filing, registration or qualification
with, any person (including, without limitation, any court,
governmental body or authority) is required in connection with the
transactions contemplated by this Agreement, the Registration Statement
and the Prospectus (or such Preliminary Prospectus), except such as
have been obtained under the 1933 Act and from the New York Stock
Exchange relating to the listing of the Designated Shares, and such as
may be required under state securities laws or Interpretations or Rules
of the National Association of Securities Dealers, Inc. ("NASD") in
connection with the purchase and distribution of the Designated Shares
by the Underwriters.
(xiv) The Company has all requisite corporate power and
authority to enter into this Agreement and this Agreement has been duly
and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by general principles of equity
and by bankruptcy or other laws relating to or affecting creditors'
rights generally and except as any indemnification or contribution
provisions thereof may be limited under applicable securities laws.
(xv) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to
all personal property owned by them and material to their business, in
each case free and clear of all security interests, liens, mortgages,
pledges, encumbrances, restrictions, claims, equities and other defects
except such as are referred to in the Prospectus (or, if the Prospectus
is not in existence, the Preliminary Prospectus) or such as do not
materially affect the value of such property in the aggregate and do
not materially interfere with the use made or proposed to be made of
such property; and all of the leases under which the Company or the
Subsidiaries hold real or personal property are valid, existing and
enforceable leases and in full force and effect with such exceptions as
are not material and do not materially interfere with the use made or
proposed to be made of such real or personal property, and neither the
Company nor any of the Subsidiaries is in default in any material
respect of any of the terms or provisions of any leases, except, in
each case where the failure to so possess or the existence of such
default would not individually or on the aggregate, have a material
adverse effect on the condition (financial or otherwise), business,
prospects, or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xvi) PricewaterhouseCoopers LLP, who have certified certain
of the consolidated financial statements of the Company and the
Subsidiaries including the notes thereto, included in the Registration
Statement and Prospectus, are independent public accountants with
respect to the Company and the Subsidiaries, as required by the 1933
Act and the 1933 Act Regulations.
(xvii) The consolidated financial statements including the
notes thereto, included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) with respect to the Company and the Subsidiaries comply in
all material respects with the 1933 Act and the 1933 Act Regulations
and
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present fairly the consolidated financial position of the Company and
the Subsidiaries as of the dates indicated and the consolidated results
of operations, cash flows and shareholders' equity of the Company and
the Subsidiaries for the periods specified and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis. The selected consolidated financial data concerning
the Company and the Subsidiaries included in the Registration Statement
and the Prospectus (or such Preliminary Prospectus) comply in all
material respects with the 1933 Act and the 1933 Act Regulations,
present fairly the information set forth therein, and have been
compiled on a basis consistent with that of the consolidated financial
statements of the Company and the Subsidiaries in the Registration
Statement and the Prospectus (or such Preliminary Prospectus). The
other financial, statistical and numerical information included in the
Registration Statement and the Prospectus (or such Preliminary
Prospectus) comply in all material respects with the 1933 Act and the
1933 Act Regulations, present fairly the information shown therein, and
to the extent applicable have been compiled on a basis consistent with
the consolidated financial statements of the Company and the
Subsidiaries included in the Registration Statement and the Prospectus
(or such Preliminary Prospectus).
(xviii) The Company and the Banks make and keep accurate
books and records reflecting their respective assets and maintain
internal accounting controls which provide reasonable assurance that
(i) transactions are executed with management's authorization; (ii)
transactions are recorded as necessary to permit preparation of the
Company's consolidated financial statements and to maintain
accountability for the assets of the Company and the Subsidiaries;
(iii) access to the assets of the Company and the Subsidiaries is
permitted only in accordance with management's authorization; and (iv)
the reported accountability of the assets of the Company and the
Subsidiaries is compared with existing assets at reasonable intervals.
(xix) The Company and the Bank maintain insurance of the
types and in the amounts required by rules and regulations of the FRB,
the OTS and the DFI and, to the best knowledge of the Company,
consistent with insurance coverage maintained by similar companies and
businesses, all of which insurance is in full force and effect.
(xx) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus), except as
otherwise stated therein:
(A) neither the Company nor any of the Subsidiaries has
sustained any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which is material to
the condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis;
(B) there has not been any material adverse change in,
or any development which is reasonably likely to have a material adverse effect
on, the condition (financial or otherwise), business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis, whether
or not arising in the ordinary course of business;
10
(C) neither the Company nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or entered into
any material transactions, other than in the ordinary course of business, which
is material to the condition (financial or otherwise), business, prospects or
results of operations of the Company and the Subsidiaries on a consolidated
basis;
(D) the Company has not declared or paid any dividend
other than the Company's regular dividends on its common stock, and neither the
Company nor any of the Subsidiaries has become delinquent in the payment of
principal or interest on any outstanding borrowings;
(E) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital leases or, other
than in the ordinary course of business, short-term borrowings of the Company or
the Subsidiaries; and
(F) there has not occurred any other event and there has
arisen no set of circumstances required by the 1933 Act or the 1933 Act
Regulations to be disclosed in the Registration Statement or Prospectus which
has not been so set forth in the Registration Statement or such Prospectus as
fairly and accurately summarized therein.
(xxi) Except as set forth in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Company, threatened,
against or affecting the Company or the Subsidiaries or any of their
respective properties before or by any court or any regulatory,
administrative or governmental official, commission, board, agency or
other authority or body, or any arbitrator, wherein an unfavorable
decision, ruling or finding could reasonably be expected to have a
material adverse effect on the consummation of this Agreement or the
transactions contemplated herein or the condition (financial or
otherwise), business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis or which is required to be
disclosed in the Registration Statement or the Prospectus (or such
Preliminary Prospectus) and is not so disclosed.
(xxii) There are no contracts or other documents required to
be filed as exhibits to the Registration Statement by the 1933 Act or
the 1933 Act Regulations which have not been filed as exhibits to the
Registration Statement, or that are required to be summarized in the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) that are not so summarized.
(xxiii) The Company has not taken, directly or indirectly,
any action designed to result in or which has constituted or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Designated Shares in violation of the
Commissioner's rules and regulations, including, but not limited to,
Regulation M, and the Company is not aware of any such action taken or
to be taken by any affiliate of the Company.
11
(xxiv) The Company and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names and other rights necessary to conduct the businesses
now conducted by them in all material respects or as described in the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) and neither the Company nor the Subsidiaries have received
any notice of infringement or conflict with asserted rights of others
with respect to any patents, copyrights, trademarks, service marks,
trade names or other rights which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis, and the Company does not know of
any basis for any such infringement or conflict.
(xxv) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus), no labor
dispute involving the Company or the Subsidiaries exists or, to the
knowledge of the Company, is imminent which might be expected to have a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis or which is required to be
disclosed in the Prospectus (or, if the Prospectus is not in existence,
the Preliminary Prospectus). Neither the Company nor any of the
Subsidiaries have received notice of any existing or threatened labor
dispute by the employees of any of its principal suppliers, customers
or contractors which might be expected to have a material adverse
effect on the condition (financial or otherwise), business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis.
(xxvi) The Company and the Subsidiaries have timely and
properly prepared and filed all necessary federal, state, local and
foreign tax returns which are required to be filed and have paid all
taxes shown as due thereon and have paid all other taxes and
assessments to the extent that the same shall have become due, except
such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a material adverse
effect on the condition (financial or otherwise), business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis. The Company has no knowledge of any tax deficiency
which has been or might be assessed against the Company or the
Subsidiaries which, if the subject of an unfavorable decision, ruling
or finding, would have a material adverse effect on the condition
(financial or otherwise), business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis.
(xxvii) Each of the material contracts, agreements and
instruments referred to in the Registration Statement or the Prospectus
(or, if the Prospectus is not in existence, the Preliminary
Prospectus), and each contract, agreement and instrument filed as an
exhibit to the Registration Statement is in full force and effect and
is the legal, valid and binding agreement of the Company or the
Subsidiaries, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting creditors' rights
generally, except where the cancellation, termination or
unenforceability does not constitute a material change in the affairs
of the Company and the Subsidiaries on a consolidated
12
basis. Except as disclosed in the Prospectus (or such Preliminary
Prospectus), to the knowledge of the Company, no other party to any
such agreement is (with or without notice or lapse of time or both) in
breach or default in any material respect thereunder, except where the
default or breach does not constitute a material change in the affairs
of the Company and the Subsidiaries on a consolidated basis.
(xxviii) No relationship, direct or indirect, exists between
or among the Company or the Subsidiaries, on the one hand, and the
directors, officers, trustees, shareholders, customers or suppliers of
the Company or the Subsidiaries, on the other hand, which is required
to be described in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the Preliminary Prospectus)
which is not adequately described therein.
(xxix) No person has the right to request or require the
Company or the Subsidiaries to register any securities for offering and
sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the
Designated Shares except as adequately disclosed in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus).
(xxx) The Designated Shares have been approved for listing on
the New York Stock Exchange, subject to official notice of issuance.
(xxxi) Except as described in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus), there are
no contractual encumbrances or restrictions or material legal
restrictions required to be described therein, on the ability of the
Subsidiaries (A) to pay dividends or make any other distributions on
its capital stock or to pay any indebtedness owed to the Company, (B)
to make any loans or advances to, or investments in, the Company or (C)
to transfer any of its property or assets to the Company.
(xxxii) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxxiii) The Company has not distributed and will not
distribute prior to the Closing Date any prospectus in connection with
the Offering, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933
Act and the 1933 Act Regulations and reviewed by or on behalf of the
Underwriters.
(xxxiv) Neither the Company nor any Subsidiary has any
liability under any "pension plan," as defined in the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). The
employee benefit plans, including employee welfare benefit plans, of
the Company and each of the Subsidiaries, if any (the "Employee
Plans"), have been operated in material compliance with the applicable
provisions of ERISA, the Internal Revenue Code of 1986, as amended (the
"Code"), all regulations, rulings and announcements promulgated or
issued thereunder and all other applicable governmental laws and
regulations (except to the extent such noncompliance would not, in the
13
aggregate, have a material adverse effect upon the condition (financial
or otherwise), earnings, affairs, business, prospects, or results of
operations of the Company and the Subsidiaries on a consolidated
basis). No reportable event under Section 4043(c) of ERISA has occurred
with respect to any Employee Plan of the Company or the Subsidiaries
for which the reporting requirements have not been waived by the
Pension Benefit Guaranty Corporation. No prohibited transaction under
Section 406 of ERISA, for which an exemption does not apply, has
occurred with respect to any Employee Plan of the Company or any of the
Subsidiaries. There are no pending or, to the knowledge of the Company,
threatened, claims by or on behalf of any Employee Plan, by any
employee or beneficiary covered under any such Employee Plan or by any
governmental authority or otherwise involving such Employee Plans or
any of their respective fiduciaries (other than for routine claims for
benefits). All Employee Plans that are group health plans have been
operated in material compliance with the group health plan continuation
coverage requirements of Section 4980B of the Code.
(xxxv) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred
any liability for any finder's or broker's fee or agent's commission in
connection with the execution of delivery of this Agreement or the
consummation of the transactions contemplated herein.
(xxxvi) No report or application filed by the Company or any
of the Subsidiaries with the Commission, the FRB, the OTS, the DFI or
any other state or federal regulatory authority, as of the date it was
filed or amended, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading when made or
failed to comply in all material respects with the applicable
requirements of the FRB, the OTS, the DFI, the Commission or any other
state or federal regulatory authority, as the case may be.
(xxxvii) None of the Company, the Subsidiaries or, to the
best knowledge of the Company, any other person associated with or
acting on behalf of the Company or the Subsidiaries, including, without
limitation, any director, officer, agent, or employee of any of the
Subsidiaries or the Company has, directly or indirectly, while acting
on behalf of such Company or Subsidiary (i) used any corporate funds
for unlawful contributions, gifts, entertainment, or other unlawful
expenses relating to political activity; (ii) made any unlawful
contribution to any candidate for foreign or domestic office, or to any
foreign or domestic government officials or employees or other persons
charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any
jurisdiction thereof or to foreign or domestic political parties or
campaigns from corporate funds, or failed to disclose fully any
contribution in violation of law; (iii) violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any
other payment of funds of the Company or a Subsidiary or retained any
funds which constitute a violation of any law, rule or regulation or
which was or is required to be disclosed in the Registration Statement
or the Prospectus pursuant to the requirements of the 1933 Act or the
1933 Act Regulations.
14
(xxxviii) Except as described in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus), there is no factual basis for any action, suit
or other proceeding involving the Company nor the Subsidiaries or any
of their material assets for any failure of the Company or any of the
Subsidiaries, or any predecessor thereof, to comply with any
requirements of federal, state or local regulation relating to air,
water, solid waste management, hazardous or toxic substances, or the
protection of health or the environment; except where such action, suit
or other proceeding would not have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
prospects, or results of operations of the Company and the Subsidiaries
on a consolidated basis. Except as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus) or as would not have a material
adverse affect on the condition (financial or otherwise), earnings,
affairs, business, prospects, or results of operations of the Company
and the Subsidiaries on a consolidated basis, none of the property
owned or leased by the Company or any of the Subsidiaries is
contaminated with any waste or hazardous substances, and neither the
Company nor any of the Subsidiaries may be deemed an "owner or
operator" of a "facility" or "vessel" which owns, possesses,
transports, generates or disposes of a "hazardous substance" as those
terms are defined in Section 9601 of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section
9601 et seq.
(xxxix) Neither the Company nor any Subsidiary has any
agreement or understanding with any person (A) concerning the future
acquisition by the Company or the Subsidiaries of a controlling
interest in such person or (B) concerning the future acquisition by any
person of a controlling interest in the Company or any Subsidiary, in
either case that is required by the 1933 Act or the 1933 Act
Regulations to be disclosed by the Company that is not disclosed in the
Prospectus (or if the Prospectus is not in existence, the Preliminary
Prospectus).
3. OFFERING BY THE UNDERWRITERS.
After the Registration Statement becomes effective or, if the
Registration Statement is already effective, after this Agreement becomes
effective, the Underwriters propose to offer the Firm Shares for sale to the
public upon the terms and conditions set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering price
and change the other selling terms, provided the proceeds to the Company shall
not be reduced as a result of such reduction or change.
The Underwriters may reserve and sell such of the Designated Shares
purchased by the Underwriters as the Underwriters may elect to dealers chosen by
them (the "Selected Dealers") at the public offering price set forth in the
Prospectus less the applicable Selected Dealers' concessions set forth therein,
for re-offering by Selected Dealers to the public at the public offering price.
The Underwriters may allow, and Selected Dealers may re-allow, a concession set
forth in the Prospectus to certain other brokers and dealers.
15
4. CERTAIN COVENANTS OF THE COMPANY.
The Company covenants with the Underwriters as follows:
(a) The Company shall use its best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then, the
Company will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted and will provide evidence satisfactory to the
Representatives of such timely filing.
(b) The Company shall notify you immediately, and confirm such
notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when
the Prospectus or any supplement to the Prospectus or any amended
Prospectus has been filed;
(ii) of the receipt of any comments or requests from the
Commission;
(iii) of any request of the Commission to amend or supplement
the Registration Statement, any Preliminary Prospectus or the
Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, or suspending
the qualification of any of the Designated Shares for offering or sale
in any jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Company shall use its best
efforts to prevent the issuance of any such stop order or of any other
such order and if any such order is issued, to cause such order to be
withdrawn or lifted as soon as possible.
(c) The Company shall furnish to the Underwriters, from time to
time without charge, as soon as available, as many copies as the Underwriters
may reasonably request of (i) the registration statement as originally filed and
of all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) the Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Company shall comply to the best of its ability with the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Designated
Shares as contemplated herein and in the Prospectus. The Company shall not file
any amendment to the registration statement as originally filed or to the
16
Registration Statement and shall not file any amendment thereto or make any
amendment or supplement to the Preliminary Prospectus or to the Prospectus of
which you shall not previously have been advised in writing and provided a copy
a reasonable time prior to the proposed filings thereof or to which you or
counsel for the Underwriters shall reasonably object. If it is necessary, in the
Company's reasonable opinion or in the reasonable opinion of the Company's
counsel, to amend or supplement the Registration Statement or the Prospectus in
connection with the distribution of the Designated Shares, the Company shall
forthwith amend or supplement the Registration Statement or the Prospectus, as
the case may be, by preparing and filing with the Commission (provided the
Underwriters or counsel for the Underwriters does not reasonably object), and
furnishing to you such number of copies as you may reasonably request of an
amendment or amendments of, or a supplement or supplements to, the Registration
Statement or the Prospectus, as the case may be (in form and substance
reasonably satisfactory to you and counsel for the Underwriters). If any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus to correct an untrue statement of a material fact or to include a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any reason
it is necessary at any time to amend or supplement the Prospectus to comply with
the 1933 Act and the 1933 Act Regulations, the Company shall, subject to the
second sentence of this subsection (d), forthwith amend or supplement the
Prospectus by preparing and filing with the Commission, and furnishing to you,
such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory to you and counsel for the Underwriters) so that, as so
amended or supplemented, the Prospectus shall not contain an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) The Company shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Shares for offering and sale
under the securities or blue sky laws of such jurisdictions as you may
reasonably request and shall continue such qualifications in effect so long as
may be advisable for distribution of the Designated Shares; PROVIDED, HOWEVER,
that the Company shall not be required to qualify to do business as a foreign
corporation or file a general consent to service of process in any jurisdiction
in connection with the foregoing. The Company shall file such statements and
reports as may be required by the laws of each jurisdiction in which the
Designated Shares have been qualified as above. The Company will notify you
immediately of, and confirm in writing, the suspension of qualification of the
Designated Shares or threat thereof in any jurisdiction.
(f) The Company shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Company
conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Company shall use the net proceeds from the sale of the
Designated Shares to be sold hereunder in the manner specified in the Prospectus
under the caption "Use of Proceeds."
17
(h) For five years from the Effective Date, the Company shall
furnish to the Representatives copies of all reports and communications
(financial or otherwise) furnished by the Company to the holders of the
Designated Shares as a class, copies of all reports and financial statements
filed with or furnished to the Commission (other than portions for which
confidential treatment has been obtained from the Commission) or with any
national securities exchange or the New York Stock Exchange or other
self-regulatory organization and such other documents, reports and information
concerning the business and financial conditions of the Company as the
Representatives may reasonably request, other than such documents, reports and
information for which the Company has the legal obligation not to reveal to the
Representatives.
(i) For a period of 90 days from the Effective Date, the Company
shall not, without the Representatives' prior written consent, directly or
indirectly offer, sell, contract to sell or otherwise dispose of any shares of
the Company's equity securities, any securities convertible or exchangeable for
such equity securities or any other rights to acquire such equity securities,
other than (A) Designated Shares issued and sold to the Underwriters pursuant to
this Agreement, (B) Common Stock issued upon exercises of employee stock options
outstanding on the date hereof, and (C) Common Stock issued upon conversion of
the Company's outstanding convertible trust preferred securities or convertible
preferred stock, as described in the Prospectus. The Company will cause certain
directors, officers and shareholders of the Company designated by the
Representatives in consultation with the Company to deliver to the Underwriters
on or before the date of this Agreement, an agreement satisfactory in form and
substance to the Underwriters and counsel for the Underwriters whereby each such
person agrees, for a period of 90 days from the Effective Date, not to, directly
or indirectly, offer, sell, contract to sell or otherwise dispose of any shares
of the Company's equity securities, any securities convertible or exchangeable
for the Company's equity securities or any other rights to acquire such equity
securities without the prior written consent of the Underwriters, subject to
certain exceptions mutually agreeable to the Company and the Underwriters;
PROVIDED, HOWEVER, that such agreement delivered by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ will
prohibit any such offer, sale or disposition for a period of 180 days.
(j) The Company shall use its best efforts to cause the Designated
Shares to become listed on the New York Stock Exchange, and to remain so listed
for at least five years from the Effective Date or for such shorter period as
may be specified in a written consent of the Representatives.
(k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Designated Shares under the 1933 Act.
(l) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Shares shall expire or (ii) the day following the
Option Closing Date with respect to any Option Shares that the Underwriters
shall elect to purchase, except as described in or contemplated by the
Prospectus, neither the Company nor any of the Subsidiaries shall take any
action (or refrain from taking any action) which will result in the Company or
the Subsidiaries incurring any material liability or obligation, direct or
contingent, or enter into any material transaction, except in the ordinary
course of business, or take or refrain from taking any action
18
which will cause or result in any material adverse change in the financial
position, capital stock, or any material increase in long-term debt, obligations
under capital leases or short-term borrowings of the Company and the
Subsidiaries on a consolidated basis.
(m) The Company shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Representatives, purchase,
redeem or call for redemption, or prepay or give notice of prepayment (or
announce any redemption or call for redemption, or any repayment or notice of
prepayment) of the Company' Common Stock, except for any purchases of shares of
Common Stock pursuant to a publicly announced stock buy-back program.
(n) The Company shall not take, directly or indirectly, any action
designed to result in or which constitutes or which might reasonably be expected
to (i) cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Designated
Shares or (ii) otherwise violate the Commission's Regulation M and the Company
is not aware of any such action taken or to be taken by any affiliate of the
Company.
(o) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Company will not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Company, the Subsidiaries or the offering of the Designated Shares (the
"Offering") which you shall not previously have been provided a copy a
reasonable time prior to the release thereof or provided reasonable notice
thereof and you shall not have reasonably objected thereto.
(p) The Company and the Subsidiaries shall conduct their
businesses in compliance with all applicable federal and state laws, rules,
regulations, decisions, directives and orders (including, without limitation,
the applicable provisions of the 1933 Act, the 1933 Act Regulations, the 1934
Act, the 1934 Act Regulations, the BHC Act, the Federal Deposit Insurance
Corporation Improvement Act, the FRB, the OTS and the DFI, as applicable).
(q) The Company and the Subsidiaries will maintain and keep
accurate books and records reflecting their assets and maintain internal
accounting controls which provide reasonable assurance that (1) transactions are
executed in accordance with management's authorization, (2) transactions are
recorded as necessary to permit the preparation of the Company's consolidated
financial statements and to maintain accountability for the assets of the
Company and its Subsidiaries, and (3) access to the assets of the Company and
its Subsidiaries is permitted.
(r) The Company shall use best efforts to comply with all
applicable registration, filing and reporting requirements of the 1934 Act for
so long as the Common Stock shall remain outstanding.
5. PAYMENT OF EXPENSES.
Whether or not this Agreement is terminated or the sale of the
Designated Shares to the Underwriters is consummated, the Company covenants and
agrees that it will pay or cause to be paid (directly or by reimbursement) all
costs and expenses incident to the performance of the obligations of the Company
under this Agreement, including:
19
(a) the preparation, printing, filing, delivery and shipping of
the initial registration statement, the Preliminary Prospectus or Prospectuses,
the Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements);
(b) all fees, expenses and disbursements of the Company's counsel
and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Shares under the securities or blue sky laws of
such jurisdictions as you may request, including all filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith, not to
exceed $3,000;
(d) all fees and expenses incurred in connection with filings made
with the NASD;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Shares on the New York Stock Exchange;
(f) the cost of furnishing to you copies of the initial
registration statements, any Preliminary Prospectus, the Registration Statement
and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and
the fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes)
incurred in connection with the printing, issuance and delivery of the
Designated Shares to the Underwriters; and
(i) all other costs and expenses incident to the performance of
the obligations of the Company hereunder that are not otherwise specifically
provided for in this Section 5. If the sale of Designated Shares contemplated by
this Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, reasonable fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Company and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Shares, in each case following presentation
of reasonably detailed invoices therefor.
If the sale of Designated Shares contemplated by this Agreement is
completed, the Company shall not be responsible for payment of fees or
disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
20
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the Firm
Shares and, following exercise of the option granted by the Company in Section 1
of this Agreement, the Option Shares, are subject, in your sole discretion, to
the accuracy of and compliance with the representations and warranties and
agreements of the Company herein as of the date hereof and as of the Closing
Date (or in the case of the Option Shares, if any, as of the Option Closing
Date), to the accuracy of the written statements of the Company made pursuant to
the provisions hereof, to the performance by the Company of its covenants and
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Company or the Representatives, shall be contemplated by
the Commission or any state authority. Any request on the part of the Commission
or any state authority for additional information (to be included in the
Registration Statement or Prospectus or otherwise) shall have been disclosed to
you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of a fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, and the Designated
Shares, and the authorization and form of the Registration Statement and
Prospectus, other than financial statements and other financial data, and all
other legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to counsel for
the Underwriters, and the Company and the Subsidiaries shall have furnished to
such counsel all documents and information relating thereto that they may
reasonably request to enable them to pass upon such matters.
(d) Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, special counsel for the
Company, shall have furnished to you their signed opinion, dated the Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
21
(i) The Company has been duly organized and is existing under
the laws of the State of Indiana, and is duly registered as a bank
holding company under the BHC Act. Each of the Subsidiaries is duly
incorporated, validly existing and in good standing under the laws of
its jurisdiction of incorporation (other than Subsidiaries incorporated
in Indiana for which no opinion as to good standing shall be required).
Each of the Company and the Subsidiaries has full corporate power and
authority to own or lease its properties and to conduct its business as
such business is described in the Prospectus and is currently conducted
in all material respects. All outstanding shares of capital stock of
the Subsidiaries have been duly authorized and validly issued and are
fully paid and nonassessable except to the extent such shares may be
deemed assessable under 12 U.S.C. Section 1831 and, to the best of such
counsel's knowledge, except as disclosed in the Prospectus, there are
no outstanding rights, options or warrants to purchase any such shares
or securities convertible into or exchangeable for any such shares
other than pursuant to the terms of certain shareholder agreements
relating to IHE and OCC.
(ii) The capital stock of the Company conforms to the
description thereof contained in the Prospectus in all material
respects. To the best of such counsel's knowledge, the capital stock of
the Company authorized and issued as of September 30, 2001 is as set
forth under the caption "Capitalization" in the Prospectus. The
outstanding shares of capital stock of the Company have been duly
authorized and validly issued, and are fully paid and nonassesable. To
the best of such counsel's knowledge, there are no outstanding rights,
options or warrants to purchase, no other outstanding securities
convertible into or exchangeable for, and no commitments, plans or
arrangements to issue, any shares of capital stock of the Company,
except (1) as described in the Prospectus, (2) the registration of the
Designated Shares and the sales to the Underwriters pursuant to this
Agreement, (3) issuances of Common Stock upon the exercise of
outstanding options, warrants and debentures or upon the conversion of
shares of preferred stock and convertible trust preferred securities
outstanding as of the date hereof, (4) grants of options or other
rights to purchase Common Stock and issuances of shares of Common Stock
under employee benefit plans and other compensatory programs in
existence on the date hereof and registrations thereof on Form S-8, (5)
issuances of Preferred Stock pursuant to the program described in the
Prospectus and possible issuances of Common Stock upon the conversion
thereof, and (6) issuances of Common Stock pursuant to restricted stock
awards made in connection with the recruitment of market presidents to
implement the Company's banking expansion plans.
(iii) The issuance, sale and delivery of the Designated
Shares in accordance with the terms and conditions of this Agreement
have been duly authorized by all necessary actions of the Company. The
Designated Shares conform to the description thereof in the
Registration Statement and the Prospectus. The Designated Shares have
been approved for listing on the New York Stock Exchange subject to
official notice of issuance. There are no preemptive or other rights to
subscribe for or to purchase, and other than as disclosed in the
Prospectus no restrictions upon the voting or transfer of, any equity
securities of the Company or the Subsidiaries pursuant to the corporate
charter, by-laws or other governing documents of the Company or the
Subsidiaries, or, to the best of such counsel's knowledge, any
agreement or other
22
instrument to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries may be bound.
(iv) The Company has all requisite corporate power to enter
into and perform its obligations under this Agreement, and this
Agreement has been duly and validly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding obligations
of the Company enforceable in accordance with its terms, except as the
enforcement hereof or thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally, and except as the indemnification and
contribution provisions hereof may be limited under applicable laws and
certain remedies may not be available in the case of a non-material
breach.
(v) The Designated Shares to be issued pursuant to this
Agreement have been duly authorized and validly reserved for issuance
and are free of statutory and, to the best of such counsel's knowledge,
contractual preemptive rights, and such Designated Shares, when so
issued, will be duly and validly issued and fully paid and
nonassessable, with no personal liability attaching to the ownership
thereof.
(vi) To the best of such counsel's knowledge, neither the
Company nor any of the Subsidiaries is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, by-laws or governing document, except for such
violation, breach or default which will not have a material adverse
effect on the Company and the Subsidiaries taken as a whole. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement, do not
and will not conflict with, result in the creation or imposition of any
material lien, claim, charge, encumbrance or restriction upon any
property or assets of the Company or the Subsidiaries or the Designated
Shares pursuant to, or constitute a material breach or violation of, or
constitute a material default under, with or without notice or lapse of
time or both, any of the terms, provisions or conditions of the
charter, by-laws or governing document of the Company or the
Subsidiaries, or to the best of such counsel's knowledge, any material
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license or any other agreement or instrument to
which the Company or the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound or any order,
decree, judgment, franchise, license, Permit, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Company or the Subsidiaries or any of their
respective properties which, in each case, is material to the Company
and the Subsidiaries on a consolidated basis.
(vii) To the best of such counsel's knowledge, holders of
securities of the Company do not have any right that, if exercised,
would require the Company to cause such securities to be included in
the Registration Statement or have waived such right. To the best of
such counsel's knowledge, neither the Company nor any of the
Subsidiaries is a party to any agreement or other instrument which
grants rights for or relating to the registration of any securities of
the Company.
23
(viii) Except as set forth in the Registration Statement and
the Prospectus, to the best of such counsel's knowledge, (i) no action,
suit or proceeding at law or in equity is pending or threatened in
writing to which the Company or the Subsidiaries is or is threatened to
be made a party, and (ii) no action, suit or proceeding is pending or
threatened in writing against or affecting the Company or the
Subsidiaries or any of their properties, before or by any court or
governmental official, commission, board or other administrative
agency, authority or body, or any arbitrator, wherein an unfavorable
decision, ruling or finding could reasonably be expected to have a
material adverse effect on the consummation of this Agreement or the
issuance and sale of the Designated Shares as contemplated herein or
the condition (financial or otherwise), business, or results of
operations of the Company and the Subsidiaries on a consolidated basis
or which is required to be disclosed in the Registration Statement or
the Prospectus and is not so disclosed.
(ix) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus, except such
as have been obtained under the 1933 Act, and except such as may be
required under state securities laws or Interpretations or Rules of the
NASD in connection with the purchase and distribution of the Designated
Shares by the Underwriters.
(x) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial statements
or other financial data included therein or omitted therefrom and
Underwriters' Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations as of their
respective dates of effectiveness or issuance.
(xi) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character
required to be described in the Registration Statement or Prospectus or
to be filed as exhibits to the Registration Statement that are not so
described or filed.
(xii) The statements under the captions "Risk Factors --
Risks Related to an Investment in Us --WE ARE THE DEFENDANT IN A CLASS
ACTION LAWSUIT CALLED ▇▇▇▇▇▇▇▇▇ V. INLAND MORTGAGE CORPORATION***",
Risk Factors -- Risks Related to an Investment in Us -- OUR BUSINESS
MAY BE AFFECTED ADVERSELY BY THE HIGHLY REGULATED ENVIRONMENT IN WHICH
WE OPERATE", Risk Factors -- Risks Related to an Investment in Us -- WE
WILL BE AFFECTED BY NEW REGULATORY CAPITAL RULES AND EXPECT TO***, Risk
Factors -- Risks Related to an Investment in Us -- OUR SHAREHOLDER
RIGHTS PLAN, PROVISIONS IN OUR RESTATED ARTICLES OF INCORPORATION***",
"Legal Proceedings", "Supervision and Regulations", "Certain
Relationships and Related Party Transactions" and "Description of
Capital Stock" in the Prospectus and in the Registration Statement
under Item 14, insofar as such statements constitute a description of
legal and regulatory matters, documents or instruments referred to
therein, are accurate descriptions of the matters purported to be
summarized therein in all material respects and fairly present the
information called for with respect to
24
such legal matters, documents and instruments, other than financial and
statistical data as to which said counsel expresses no opinion or
belief.
(xiii) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under
the 1933 Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made within the time period required by Rule 424(b); to
the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for a stop order are pending or threatened by the
Commission.
(xiv) Except as disclosed in the Prospectus, to the best of
such counsel's knowledge, there are no contractual encumbrances or
restrictions, or material legal restrictions required to be disclosed
on the ability of the Subsidiaries (A) to pay dividends or make any
other distributions on its capital stock or to pay indebtedness owed to
the Company, (B) to make any loans or advances to, or investments in,
the Company or (C) to transfer any of its property or assets to the
Company.
(xv) To the best of such counsel's knowledge, (A) the
business and operations of the Company and the Subsidiaries comply in
all material respects with all statutes, ordinances, laws, rules and
regulations applicable thereto and which are material to the Company
and the Subsidiaries on a consolidated basis, except in those instances
where non-compliance would not materially impair the ability of the
Company and the Subsidiaries to conduct their business; and (B) the
Company and the Subsidiaries possess and are operating in all material
respects in compliance with the terms, provisions and conditions of all
Permits, consents, licenses, franchises and governmental and regulatory
authorizations ("Authorizations") and required to conduct their
businesses as described in the Prospectus and which are material to the
Company and the Subsidiaries on a consolidated basis, except in those
instances where the loss thereof or non-compliance therewith would not
have a material adverse effect on the condition (financial or
otherwise), business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis; to the best of such
counsel's knowledge, all such Authorizations are valid and in full
force and effect, and, to the best of such counsel's knowledge, no
action, suit or proceeding is pending or threatened which may lead to
the revocation, termination, suspension or non-renewal of any such
Authorization, except in those instances where the loss thereof or
non-compliance therewith would not materially impair the ability of the
Company or the Subsidiaries to conduct their businesses.
(xvi) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, the Company will not be, an
"investment company," or an entity "controlled" by an "investment
company" as defined in the Investment Company Act.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Company including, without limitation, certificates as to the
identity of any and all material contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchises, licenses or other
agreements or instruments, and all material permits, easements, consents,
licenses, franchises and
25
government regulatory authorizations, for purposes of paragraphs (vi), (xi) and
(xv) hereof, and certificates of public officials. In addition, it is
contemplated that such counsel shall rely on the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President - Legal of the Company, as to certain matters regarding the
Company and the Subsidiaries, and such counsel shall state in its opinion the
amount of reliance it is placing on the opinion of such Company counsel and that
such reliance is, in the view of such counsel, reasonable under the
circumstances.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Company and
with their independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement and Prospectus and such counsel has no reason to believe (A) that the
Registration Statement or any amendment thereto (except for the financial
statements and related schedules and statistical data included therein or
omitted therefrom or Underwriters' Information, as to which such counsel need
express no opinion), at the time the Registration Statement or any such
amendment became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (B) that the Prospectus or any amendment or
supplement thereto (except for the financial statements and related schedules
and statistical data included therein or omitted therefrom or Underwriters'
Information, as to which such counsel need express no opinion), at the time the
Registration Statement became effective (or, if the term "Prospectus" refers to
the prospectus first filed pursuant to Rule 424(b) of the 1933 Act Regulations,
at the time the Prospectus was issued), at the time any such amended or
supplemented Prospectus was issued, at the Closing Date and, if applicable, the
Option Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (C) that there is
any amendment to the Registration Statement required to be filed that has not
already been filed.
(e) ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇., counsel for the Underwriters,
shall have furnished you their signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, with respect to the sufficiency of all
corporate procedures and other legal matters relating to this Agreement, the
validity of the Designated Shares, the Registration Statement, the Prospectus
and such other related matters as you may reasonably request and there shall
have been furnished to such counsel such documents and other information as they
may request to enable them to pass on such matters. In giving such opinion,
▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇. may rely as to matters of fact upon statements and
certifications of officers of the Company and of other appropriate persons and
may rely as to matters of law, other than law of the United States and the State
of Missouri, upon the opinions of Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Vice President - Legal of the Company described herein.
(f) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from PricewaterhouseCoopers LLP a letter, dated the date of this Agreement and
the Closing Date (and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Representatives,
26
confirming that they are independent public accountants with respect to Company,
within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in
effect that:
(i) In their opinion, the consolidated financial statements
of the Company audited by them and included in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other
inquiries and procedures as may be specified in such letter, which
procedures do not constitute an audit in accordance with U.S. generally
accepted auditing standards, nothing came to their attention that
caused them to believe that, if applicable, the unaudited interim
consolidated financial statements of the Company included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act,
the 1934 Act, the 1933 Act Regulations and the 1934 Act Regulations or
are not in conformity with U.S. generally accepted accounting
principles applied on a basis substantially consistent, except as noted
in the Registration Statement, with the basis for the audited
consolidated financial statements of the Company included in the
Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements
and other information referred to below, a reading of the latest
available unaudited condensed consolidated financial statements of the
Company, inspection of the minute books of the Company since the date
of the latest audited financial statements of the Company included in
the Registration Statement, inquiries of officials of the Company
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the consolidated
capital stock of the Company, any increase in the consolidated debt of the
Company or any decrease in the consolidated shareholders equity of the Company,
in each case as compared with amounts shown in the latest unaudited interim
consolidated statement of financial condition of the Company included in the
Registration Statement except in each case for changes, increases or decreases
which the Registration Statement specifically discloses, have occurred or may
occur or which are described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements included in the Registration Statement
to the specified date referred to in Clause (iii)(A), there were any decreases
in the consolidated net income of the Company or in the per share amount of net
income of the Company as compared with the comparable period of the preceding
year and with any other period of corresponding length specified by the
Underwriters, except in each case for increases or decreases which the
27
Registration Statement discloses have occurred or may occur, or which are
described in such letter.
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (ii) and (iii) above, they have carried out certain
specified procedures, not constituting an audit in accordance with U.S.
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Underwriters
which are derived from the general accounting records and consolidated
financial statements of the Company which appear in the Registration
Statement specified by the Underwriters in the Registration Statement,
and have compared such amounts, percentages and financial information
with the accounting records and the material derived from such records
and consolidated financial statements of the Company have found them to
be in agreement.
In the event that the letter to be delivered on the date hereof, on the
Closing Date (and, if applicable, any Option Closing Date) referred to above set
forth any such changes, decreases or increases as specified in Clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in Clause
(iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts shown in the latest unaudited
consolidated statement of financial condition of the Company included in the
Registration Statement, (y) reflect a material adverse change in the items
specified in Clause (iii)(B) above as compared with the corresponding periods of
the prior year or other period specified by the Representatives, or (z) reflect
a material adverse change in items specified in Clause (iv) above from the
amounts shown in the Preliminary Prospectus distributed by the Underwriters in
connection with the offering contemplated hereby or from the amounts shown in
the Prospectus.
(g) At the Closing Date and, if applicable, the Option Closing
Date, you shall have received certificates of the chief executive officer and
the chief financial and accounting officer of the Company, which certificates
shall be deemed to be made on behalf of the Company dated as of the Closing Date
and, if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2 hereof are accurate as of the
Closing Date and, if applicable, the Option Closing Date, and that the Company
have complied with all agreements and satisfied all conditions on their part to
be performed or satisfied at or prior to such Closing Date; (ii) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change in the
condition (financial or otherwise), business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis; (iii) since such
dates there has not been any material transaction entered into by the Company or
the Subsidiaries other than transactions in the ordinary course of business; and
(iv) they have carefully examined the Registration Statement and the Prospectus
as amended or supplemented and nothing has come to their attention that would
lead them to believe that either the Registration Statement or the Prospectus,
or any amendment or supplement thereto as
28
of their respective effective or issue dates, contained, and the Prospectus as
amended or supplemented at such Closing Date (and, if applicable, the Option
Closing Date), contains any untrue statement of a material fact, or omits to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; and (v) covering such other matters as you may
reasonably request. The officers' certificate of the Company shall further state
that no stop order affecting the Registration Statement is in effect or, to
their knowledge, threatened.
(h) On the Closing Date, you shall have received signed
agreements, dated the date of this Agreement, from certain of the directors,
officers and shareholders of the Company in accordance with Section 4(i).
(i) The NASD, upon review of the terms of the public offering of
the Designated Shares, shall not have objected to the Underwriters'
participation in such offering.
(j) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Company shall have furnished to you and counsel for the
Underwriters all such other documents, certificates and opinions as they have
reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Company shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the Underwriters' obligations hereunder may be terminated by you on notice to
the Company at, or at any time before, the Closing Date or the Option Closing
Date, as applicable. Any such termination shall be without liability of the
Underwriters to the Company.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each of its directors, officers and agents, and each person, if
any, who controls any Underwriter within the meaning of the 1933 Act, against
any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable attorney fees and expenses),
joint or several, arising out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact made by the Company contained in
Section 2 of this Agreement (or any certificate delivered by the Company
pursuant to Sections 6(g) and 6(j) hereto) or the registration statement as
originally filed or the Registration Statement, any Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, (ii) any omission or
alleged omission to state a material fact in the registration statement as
originally filed or the Registration Statement, the Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, required to be stated
therein or necessary to make the statements therein not misleading, and against
any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorney fees), joint or several, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Prospectus
29
or the Prospectus, or in any amendment or supplement thereto, or arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
(iii) the enforcement of this indemnification provision or the contribution
provisions of Section 7(d); and shall reimburse each such indemnified party for
any reasonable legal or other expenses as incurred, but in no event less
frequently than 30 days after each invoice is submitted, incurred by them in
connection with investigating or defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded;
PROVIDED, HOWEVER, that the Company shall not be liable in any such case to the
extent, but only to the extent, that any such losses, claims, damages,
liabilities and expenses arise out of or are based upon any untrue statement or
omission or allegation thereof that has been made therein or omitted therefrom
in reliance upon and in conformity with the "Underwriters' Information";
PROVIDED FURTHER, HOWEVER, that the indemnification contained in this paragraph
with respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or of any person controlling any Underwriter) to the extent any
such losses, claims, damages, liabilities or expenses directly results from the
fact that such Underwriter sold Designated Shares to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus (as amended or supplemented if any amendments or supplements
thereto shall have been furnished to you in sufficient time to distribute same
with or prior to the written confirmation of the sale involved), if required by
law, and if such loss, claim, damage, liability or expense would not have arisen
but for the failure to give or send such person such document. The foregoing
indemnity agreement is in addition to any liability the Company may otherwise
have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of the 1933 Act, to the same extent as
required by the foregoing indemnity from the Company to each Underwriter, but
only with respect to the Underwriters' Information. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to any such indemnified party.
(c) If any action or claim shall be brought or asserted against
any indemnified party or any person controlling an indemnified party in respect
of which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has
30
failed to assume the defense or to employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party or such controlling
person and the indemnifying party and such indemnified party or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to it that are different from or in addition to those
available to the indemnifying party (in which case, if such indemnified party or
controlling person notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party or such controlling person) it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys at any time and for all such indemnified party and
controlling persons, which firm shall be designated in writing by the
indemnified party (and, if such indemnified parties are Underwriters, by you, as
Representatives). Each indemnified party and each controlling person, as a
condition of such indemnity, shall use reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. The indemnifying
party shall not be liable for any settlement of any such action effected without
its written consent, but if there shall be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Designated Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such
31
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated Shares
(before deducting expenses) received by the Company bear to the total
underwriting discounts, commissions and compensation received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this paragraph (d)
were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Shares underwritten by such Underwriter and
distributed to the public were offered to the public exceeds the amount of any
damages that such 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 paragraph (d), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of the 1933 Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company subject in each case to the
preceding sentence. The obligations of the Company under this paragraph (d)
shall be in addition to any liability which the Company may otherwise have and
the obligations of the Underwriters under this paragraph (d) shall be in
addition to any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling an Underwriter or by or on behalf of the Company, or such directors,
trustees or officers (or any person controlling the Company), (ii) acceptance of
any Designated Shares and payment therefor hereunder and (iii) any termination
of this Agreement. A successor of any Underwriter or of the Company, such
directors, trustees or officers (or of any person controlling an Underwriter or
the Company) shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 7.
32
8. TERMINATION.
You shall have the right to terminate this Agreement at any time at or
prior to the Closing Date or, with respect to the Underwriters' obligation to
purchase the Option Shares, at any time at or prior to the Option Closing Date,
without liability on the part of the Underwriters to the Company, if:
(a) The Company shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Company or any of the Subsidiaries shall have sustained
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which in the judgment
of the Representatives materially impairs the investment quality of the
Designated Shares;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which in your reasonable
judgment is reasonably likely to have a material adverse effect on, the
condition (financial or otherwise), business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis, whether or not
arising in the ordinary course of business;
(d) There has occurred any outbreak or escalation of hostilities
or other calamity or crisis (including, without limitation, an act of terrorism)
or material change in general economic, political or financial conditions, or
internal conditions, the effect of which on the financial markets of the United
States is such as to make it, in your reasonable judgment, impracticable to
market the Designated Shares or enforce contracts for the sale of the Designated
Shares;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or The Nasdaq Stock Market's National Market shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority; or
(f) A banking moratorium shall have been declared by either
federal or Indiana authorities; or
(g) Any action shall have been taken by any government in respect
of its monetary affairs which, in your reasonable judgment, has a material
adverse effect on the United States securities markets so as to make it, in your
reasonable judgment, impracticable to market the Designated Shares or enforce
contracts for the sale of the Designated Shares.
If this Agreement shall be terminated pursuant to this Section 8, the
Company shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
33
9. DEFAULT OF UNDERWRITERS.
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Shares hereunder, the other Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Designated Shares which such defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that the
non-defaulting Underwriters shall be under no obligation to purchase such
Designated Shares if the aggregate number of Designated Shares to be purchased
by such non-defaulting Underwriters shall exceed 110% of the aggregate
underwriting commitments set forth in Schedule I hereto, and provided further,
that no non-defaulting Underwriter shall be obligated to purchase Designated
Shares to the extent that the number of such Designated Shares is more than 110%
of such Underwriter's underwriting commitment set forth in Schedule I hereto.
In the event that the non-defaulting Underwriters are not obligated
under the above paragraph to purchase the Designated Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase, the Representatives
may in its discretion arrange for one or more of the Underwriters or for another
party or parties to purchase such Designated Shares on the terms contained
herein. If within one business day after such default the Representatives do not
arrange for the purchase of such Designated Shares, then the Company shall be
entitled to a further period of one business day within which to procure another
party or parties satisfactory to the Representatives to purchase such Designated
Shares on such terms.
In the event that the Representatives or the Company do not arrange for
the purchase of any Designated Shares to which a default relates as provided
above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Shares of a
defaulting Underwriter or Underwriters as provided in this Section 9, (i) you
shall have the right to postpone the Closing Date for a period of not more than
five full business days, in order to effect any changes that, in the opinion of
counsel for the Underwriters or the Company, may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents or
agreements, and the Company agrees promptly to file any amendments to the
Registration Statement or supplements to the Prospectus which, in its opinion,
may thereby be made necessary and (ii) the respective numbers of Designated
Shares to be purchased by the remaining Underwriters or substituted underwriters
shall be taken as the basis of their underwriting obligation for all purposes of
this Agreement. Nothing herein contained shall relieve any defaulting
Underwriter of any liability it may have for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section 9 shall be
without liability on the part of any non-defaulting Underwriter or the Company,
except for expenses to be paid or reimbursed pursuant to Section 5 and except
for the provisions of Section 7.
10. EFFECTIVE DATE OF AGREEMENT.
If the Registration Statement is not effective at the time of execution
of this Agreement, this Agreement shall become effective on the Effective Date
at the time the Commission declares
34
the Registration Statement effective. The Company shall immediately notify the
Underwriters when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Shares for initial public offering. The Representatives
shall notify the Company immediately after it has taken any action which causes
this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Company, by notifying you or by you, as Representatives of
the several Underwriters, by notifying the Company, except that the provisions
of Sections 5 and 7 shall at all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other
statements of the Company and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Company or controlling persons
of the Company, or by or on behalf of the Underwriters or controlling persons of
the Underwriters and shall survive delivery of and payment for the Designated
Shares.
12. NOTICES.
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of telecommunication and
confirmed. Notices to Company shall be sent to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (with a copy to Vedder, Price,
▇▇▇▇▇▇▇ & Kammholz, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇) and notices to the Underwriters shall be sent to
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇, Rice &
▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇, Esq.). In all dealings with the Company under this
Agreement, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated shall act as representative
of and on behalf of the several Underwriters, and the Company shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
the Underwriters, made or given by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated on
behalf of the Underwriters, as if the same shall have been made or given in
writing by the Underwriters.
13. PARTIES.
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Company and, to the extent expressed, directors, trustees
and officers of the Company, any person controlling the Company or the
Underwriters, and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement. The term
35
"successors and assigns" shall not include any purchaser, in his status as such
purchaser, from the Underwriters of the Designated Shares.
14. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, and when a
counterpart has been executed by each party hereto all such counterparts taken
together shall constitute one and the same Agreement.
SIGNATURES APPEAR ON THE FOLLOWING PAGE
36
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company and you in accordance with
its terms.
Very truly yours,
▇▇▇▇▇ FINANCIAL CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ATTEST:
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, INC.
▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
BY: ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Authorized Signatory
BY: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Authorized Signatory
37
BY: J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Authorized Signatory
BY: ▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Authorized Signatory
For themselves and as Representatives of the several Underwriters
named in Schedule I hereto.
38
SCHEDULE I
REPRESENTATIVE NUMBER OF SHARES
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.................................................
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated. ...................................
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc.............................................
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc.................................................
EXHIBIT A
LIST OF SUBSIDIARIES
▇▇▇▇▇ Union Bank and Trust Company
▇▇▇▇▇ Home Equity Corporation
IHE Funding Corp.
IHE Funding Corp. II
▇▇▇▇▇ Funding Corp.
▇▇▇▇▇ Funding Corp. II
▇▇▇▇▇ Union Realty Corporation ▇▇▇▇▇ Union Collateral, Inc. ▇▇▇▇▇ Capital
Holdings Corporation ▇▇▇▇▇ Business Finance Corporation ▇▇▇▇▇ Franchise Capital
Corporation ▇▇▇▇▇ International Corporation Onset Capital Corporation Onset
Alberta Ltd.
▇▇▇▇▇ Union Securities, Inc.
▇▇▇▇▇ Reinsurance Corporation
▇▇▇▇▇ Union Insurance, Inc.
▇▇▇▇▇ Union Advisory Services, Inc.
▇▇▇▇▇ Union Investor Services, Inc.
▇▇▇▇▇ Union Bank, F.S.B.
▇▇▇▇▇ Union Credit Insurance Corporation
IFC Capital Trust I
IFC Capital Trust II
IFC Capital Trust III
IFC Capital Trust IV
IFC Capital Trust V
IFC Mortgage Corporation
▇▇▇▇▇ Mortgage Corporation
▇▇▇▇▇ Equipment Finance Corporation
▇▇▇▇▇ Leasing Corporation
▇▇▇▇▇ Ventures LLC
▇▇▇▇▇ Ventures SBIC LLC