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600,000 Preferred Securities
▇▇▇▇▇▇▇ First Capital Trust
---% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
--------------, 1997
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
▇▇▇▇▇▇▇ First National Corporation, an Arkansas
corporation (the "Company"), and its financing subsidiary,
▇▇▇▇▇▇▇ First Capital Trust, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the
"Offerors"), propose that the Trust issue and sell to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Company, Incorporated (sometimes referred to herein as
the "Underwriter"), pursuant to the terms of this Agreement,
600,000 of the Trust's ---% Cumulative Trust Preferred
Securities, with a liquidation amount of $25.00 per preferred
security (the "Preferred Securities"), to be issued under the
Trust Agreement (as hereinafter defined), the terms of which are
more fully described in the Prospectus (as hereinafter defined).
The aforementioned 600,000 Preferred Securities to be sold to the
Underwriter are herein called the "Firm Preferred Securities."
Solely for the purpose of covering over-allotments in the sale of
the Firm Preferred Securities, the Offerors further propose that
the Trust issue and sell to the Underwriter, at its option, up to
an additional 90,000 Preferred Securities (the "Option Preferred
Securities") upon exercise of the over-allotment option granted
in Section 1 hereof. The Firm Preferred Securities and any
Option Preferred Securities are herein collectively referred to
as the "Designated Preferred Securities."
The Offerors hereby confirm as follows their agreement
with you in connection with the proposed purchase of the
Designated Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED
---------------------------------------------------
SECURITIES; DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
-----------------------------------------------------------
(a) On the basis of the representations, warranties
and agreements herein contained, and subject to the terms and
conditions herein set forth, the Offerors hereby agree that the
Trust shall issue and sell to the Underwriter and the Underwriter
agrees to purchase from the Trust, at a purchase price of $25.00
per share (the "Purchase Price"), the Firm Preferred Securities.
Because the proceeds from the sale of the Firm Preferred
Securities will be used to
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purchase from the Company its Debentures (as hereinafter defined
and as described in the Prospectus), the Company shall pay to the
Underwriter a commission of $----- per Firm Preferred Security
purchased (the "Firm Preferred Securities Commission").
In addition, on the basis of the representations,
warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the Trust hereby grants to
the Underwriter an option to purchase all or any portion of the
90,000 Option Preferred Securities, and upon the exercise of such
option in accordance with this Section 1, the Offerors hereby
agree that the Trust shall issue and sell to the Underwriter all
or any portion of the Option Preferred Securities at the same
Purchase Price per share paid for the Firm Preferred Securities.
Because the proceeds from the sale of the Option Preferred
Securities will be used to purchase from the Company its
Debentures, the Company shall pay to the Underwriter a commission
of $----- per Option Preferred Security for each Option Preferred
Security purchased (the "Option Preferred Securities
Commission"). The option hereby granted (the "Option") shall
expire 30 days after the date upon which the Registration
Statement (as hereinafter defined) becomes effective and may be
exercised only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of
the Firm Preferred Securities. The Option may be exercised in
whole or in part at any time (but not more than once) by the
Underwriter giving notice (confirmed in writing) to the Trust
setting forth the number of Option Preferred Securities as to
which the Underwriter is exercising the Option and the time, date
and place for payment and delivery of certificates for such
Option Preferred Securities. Such time and date of payment and
delivery for the Option Preferred Securities (the "Option Closing
Date") shall be determined by the Underwriter, but shall not be
earlier than two nor later than five full business days after the
exercise of such Option, nor in any event prior to the Closing
Date (as hereinafter defined). The Option Closing Date may be
the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred
Securities Commission and delivery of certificates for the Firm
Preferred Securities shall be made at the Underwriter's offices,
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other place as shall be agreed to by the Underwriter and the
Offerors, at 10:00 a.m., St. Louis time, on --------, 1997, or at
such other time not more than five full business days thereafter
as the Offerors and the Underwriter shall determine (the "Closing
Date"). If the Underwriter exercises the option to purchase any
or all of the Option Preferred Securities, payment of the
Purchase Price and Option Preferred Securities Commission and
delivery of certificates for such Option Preferred Securities
shall be made on the Option Closing Date at the Underwriter's
offices, or at such other place as the Offerors and the
Underwriter shall determine. Such payments shall be made to an
account designated by the Trust by wire transfer or certified or
bank cashier's check, in same day funds, in the amount of the
Purchase Price therefor, against delivery by or on behalf of the
Trust to the Underwriter of certificates for the Designated
Preferred Securities to be purchased by the Underwriter.
The Agreement contained herein with respect to the
timing of the Closing Date and Option Closing Date is intended
to, and does, constitute an express agreement, as described in
Rule 15c6-1(c) and (d) promulgated under the 1934 Act (as defined
herein), for a settlement date other than four business days
after the date of the contract.
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Certificates for Designated Preferred Securities to be
purchased by the Underwriter shall be delivered by the Offerors
in fully registered form in such authorized denominations and
registered in such names as the Underwriter 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 Preferred Securities
to be purchased by the Underwriter shall be made available by the
Offerors to the Underwriter for inspection, checking and
packaging at such office as the Underwriter 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 Preferred Securities at the time
and place specified pursuant to this Agreement is a further
condition of the Underwriter's obligations hereunder.
(b) The Offerors propose that the Trust issue the
Designated Preferred Securities pursuant to an Amended and
Restated Trust Agreement among State Street Bank and Trust
Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein,
(collectively, the "Trustees"), and the Company, in substantially
the form heretofore delivered to the Underwriter, said Agreement
being hereinafter referred to as the "Trust Agreement." In
connection with the issuance of the Designated Preferred
Securities, the Company proposes (i) to issue its Subordinated
Debentures ( the "Debentures") pursuant to an Indenture, to be
dated as of --------, 1997, between the Company and State Street
Bank and Trust Company, as Trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Preferred Securities
pursuant to a Guarantee Agreement between the Company and State
Street Bank and Trust Company, as guarantee trustee (the
"Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
------------------------------
(a) The Offerors jointly and severally represent and
warrant to, and agree with, the Underwriter 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 Offerors have prepared and filed with the
Commission a registration statement on Form S-3 (File
Numbers 333------ and 333-------01) for the registration of
the Designated Preferred Securities, the Guarantee and
$17,250,000 aggregate principal amount of Debentures under
the Securities Act of 1933, as amended (the "1933 Act"),
including the related prospectus subject to completion, and
one or more amendments to such registration statement may
have been so filed, in each case in
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conformity in all material respects with the requirements of
the 1933 Act, the rules and regulations promulgated thereunder
(the "1933 Act Regulations") and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and
regulations thereunder. Copies of such registration
statement, including any amendments thereto, each
Preliminary Prospectus (as defined herein) contained therein
and the exhibits, financial statements and schedules to such
registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the
Underwriter. After the execution of this Agreement, the
Offerors will file with the Commission (A) if such
registration statement, as it may have been amended, has
been declared by the Commission to be effective under the
1933 Act, a prospectus in the form most recently included in
an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration
statement), with such changes or insertions as are required
by Rule 430A of the 1933 Act Regulations ("Rule 430A") or
permitted by Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)") and as have been provided to and not objected to by
the Underwriter prior to (or as are agreed to by the
Underwriter subsequent to) the execution of this Agreement,
or (B) if such registration statement, as it may have been
amended, has not been declared by the Commission to be
effective under the 1933 Act, an amendment to such
registration statement, including a form of final
prospectus, necessary to permit such registration statement
to become effective, a copy of which amendment has been
furnished to and not objected to by the Underwriter prior to
(or is agreed to by the Underwriter subsequent to) the
execution of this Agreement. As used in this Agreement, the
term "Registration Statement" means such registration
statement, as amended at the time when it was or is declared
effective under the 1933 Act, including (1) all financial
schedules and exhibits thereto, (2) all documents (or
portions thereof) incorporated by reference therein filed
under the 1934 Act, and (3) any information omitted
therefrom pursuant to Rule 430A and included in the
Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion
filed with such registration statement or any amendment
thereto including all documents (or portions thereof)
incorporated by reference therein under the 1934 Act
(including the prospectus subject to completion, if any,
included in the Registration Statement and each prospectus
filed pursuant to Rule 424(a) under the ▇▇▇▇ ▇▇▇); 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
schedules and all documents (or portions thereof)
incorporated by reference therein under the 1934 Act. The
date on which the Registration Statement becomes effective
is hereinafter referred to as the "Effective Date."
(iii) The documents incorporated by reference in
the Preliminary Prospectus or Prospectus or from which
information is so incorporated by reference, when they
became effective or were filed with the Commission, as the
case may be, complied in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations,
and when read together and with the other information in the
Preliminary Prospectus or Prospectus, as the case may be, at
the time the Registration Statement became or becomes
effective and at the Closing Date and any Option Closing
Date, did not or will not, as the case may be, contain an
untrue statement of a material fact or omit
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to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) No order preventing or suspending the use of
any Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) has been issued by
the Commission, nor has the Commission, to the knowledge of
the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary
Prospectus, at the time of filing thereof, (A) complied in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and (B) did not contain an
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading; provided,
--------
however, that this representation and warranty does not
-------
apply to statements or omissions made in reliance upon and
in conformity with information furnished in writing to the
Offerors by the Underwriter expressly for inclusion in the
Prospectus beneath the heading "Underwriting" and the last
sentence on the cover page of the Prospectus (such
information referred to herein as the "Underwriter's
Information").
(v) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date
and, if applicable, the Option Closing Date, the
Registration Statement and any post-effective amendment
thereto (A) complied and will comply in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations and the Trust Indenture Act (and the rules and
regulations thereunder) and (B) did not and will not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, not misleading. At the
Effective Date and at all times when the Prospectus is
required to be delivered in connection with offers and sales
of Designated Preferred Securities, including, without
limitation, the Closing Date and, if applicable, the Option
Closing Date, the Prospectus, as amended or supplemented,
(A) complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act
Regulations and the Trust Indenture Act (and the rules and
regulations thereunder) and (B) did not contain and will not
contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that this representation and warranty
-------- -------
does not apply to Underwriter's Information.
(vi) (A) The Company is duly organized, validly
existing and in good standing under the laws of the State of
Arkansas, with full corporate and other power and authority
to own, lease and operate its properties and conduct its
business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted and is duly
registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is
validly existing as a statutory business trust in good
standing under the Delaware Business Trust Act with the
power and authority (trust and other) to own its property
and conduct its business as
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described in the Registration Statement and Prospectus, to
issue and sell its common securities (the "Common Securities")
to the Company pursuant to the Trust Agreement, to issue and
sell the Designated Preferred Securities, to enter into and
perform its obligations under this Agreement and to consummate
the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and
is in good standing in each jurisdiction in which the
conduct of its business or the ownership of its property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the Trust; the Trust has
conducted and will conduct no business other than the
transactions contemplated by this Agreement and described in
the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust
Agreement and the agreements and instruments contemplated by
the Trust Agreement and described in the Prospectus; the
Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the
Prospectus; the Trust is not a party to or subject to any
action, suit or proceeding of any nature; the Trust is not,
and at the Closing Date or any Option Closing Date will not
be, to the knowledge of the Offerors, classified as a
business entity taxable as a corporation for United States
federal income tax purposes; and the Trust is, and as of the
Closing Date or any Option Closing Date will be, treated as
a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(vii) The Company has 6 subsidiaries. They are
listed on Exhibit A attached hereto and incorporated herein
---------
(the "Subsidiaries"). 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. ▇▇▇▇▇▇▇ First National Bank is
referred to as the "Bank." Each Subsidiary is a bank,
corporation or business trust duly organized, validly existing
and in good standing under the laws of its respective
jurisdiction of incorporation. 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 most recent Preliminary Prospectus) and as currently being
conducted. The deposit accounts of the Bank are insured by
the Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation (the "FDIC") up to the maximum amount
provided by law; and no proceedings for the modification,
termination or revocation of any such insurance are pending
or, to the knowledge of the Offerors, threatened.
(viii) The Company and each of the Subsidiaries
is duly qualified to transact business as a foreign
corporation and is in good standing in each other
jurisdiction in which it owns or leases property or conducts
its business so as to require such qualification and in
which the failure to so qualify would, individually or in
the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, 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
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U.S.C. Section 55 or 12 U.S.C. Section 1831o, and (C) except
as disclosed in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), are
directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, restriction
upon voting or transfer, preemptive rights, claim or equity.
Except as disclosed in the Prospectus, there are no
outstanding rights, warrants or options to acquire or
instruments convertible into or exchangeable for any capital
stock or equity securities of the Offerors or the
Subsidiaries.
(ix) The capital stock of the Company and the
equity securities of the Trust conform to the description
thereof contained in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary
Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized
and validly issued and are fully paid and nonassessable, and
no such shares were issued in violation of the preemptive or
similar rights of any security holder of an Offeror; no
person has any preemptive or similar right to purchase any
shares of capital stock or equity securities of the
Offerors. Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding rights, options or
warrants to acquire any securities of the Offerors, and
there are no outstanding securities convertible into or
exchangeable for any such securities and no restrictions
upon the voting or transfer of any capital stock of the
Company or equity securities of the Trust pursuant to the
Company's corporate charter or bylaws, the Trust Agreement
or any agreement or other instrument to which an Offeror is
a party or by which an Offeror is bound.
(x) (A) The Trust has all requisite power and
authority to issue, sell and deliver the Designated
Preferred Securities in accordance with and upon the terms
and conditions set forth in this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate and trust action
required to be taken by the Offerors for the authorization,
issuance, sale and delivery of the Designated Preferred
Securities in accordance with such terms and conditions has
been validly and sufficiently taken. The Designated
Preferred Securities, when delivered in accordance with this
Agreement, will be duly and validly issued and outstanding,
will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, will be entitled to
the benefits of the Trust Agreement, will not be issued in
violation of or subject to any preemptive or similar rights,
and will conform to the description thereof in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) and the Trust Agreement. None of the Designated
Preferred Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage, pledge,
encumbrance, restriction upon voting or transfer, preemptive
rights, claim, equity or other defect.
(B) The Debentures have been duly and
validly authorized, and, when duly and validly executed,
authenticated and issued as provided in the Indenture and
delivered to the Trust pursuant to the Trust Agreement, will
constitute valid and
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legally binding obligations of the Company entitled to the
benefits of the Indenture and will conform to the description
thereof contained in the Prospectus.
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and
delivered to the guarantee trustee for the benefit of the
Trust, will constitute a valid and legally binding
obligation of the Company and will conform to the
description thereof contained in the Prospectus.
(D) The Agreement as to Expenses and
Liabilities (the "Expense Agreement") has been duly and
validly authorized, and, when duly and validly executed and
delivered by the Company, will constitute a valid and
legally binding obligation of the Company and will conform
to the description thereof contained in the Prospectus.
(xi) The Offerors and the Subsidiaries have
complied in all material respects with all federal, state
and local statutes, regulations, ordinances and rules
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
most recent Preliminary Prospectus) and as currently being
conducted.
(xii) The Offerors and the Subsidiaries have
all material permits, easements, consents, licenses,
franchises and other governmental and regulatory
authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own
and lease their properties and conduct their businesses in
the manner described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and as
currently being conducted in all material respects. All
such Permits are in full force and effect and each of the
Offerors and the Subsidiaries are in all material respects
complying therewith, and no event has occurred that allows,
or after notice or lapse of time would allow, revocation or
termination thereof or will result in any other material
impairment of the rights of the holder of any such Permit,
subject in each case to such qualification as may be
adequately disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). Such Permits contain no restrictions that
would materially impair the ability of the Company or the
Subsidiaries to conduct their businesses in the manner
consistent with their past practices. Neither the Offerors
nor any of the Subsidiaries have received notice or
otherwise has knowledge of any proceeding or action relating
to the revocation or modification of any such Permit.
(xiii) Neither of the Offerors nor any of the
Subsidiaries is in breach or violation of their corporate
charter, by-laws or other governing documents (including
without limitation, the Trust Agreement) in any material
respect. Neither of the Offerors nor any of the
Subsidiaries are, and to the knowledge of the Offerors no
other party is, in violation, breach or default (with or
without notice or lapse of time or both) in the performance
or observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any
other agreement or
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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 material adverse consequences to the
Offerors and the Subsidiaries on a consolidated basis, and to
the knowledge of the Offerors, no other party has asserted
that the Offerors or any of the Subsidiaries is in such
violation, breach or default (provided that the foregoing
shall not apply to defaults by borrowers from the Bank), or
(B) except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), any order, decree, judgment, rule or regulation
of any court, arbitrator, government, or governmental agency
or instrumentality, domestic or foreign, having jurisdiction
over the Offerors or the Subsidiaries or any of their
respective properties the breach, violation or default of
which could have a material adverse effect on the condition,
financial or otherwise, earnings, affairs, business,
prospects, or results of operations of the Offerors and the
Subsidiaries on a consolidated basis.
(xiv) The execution, delivery and performance
of this Agreement and the consummation of the transactions
contemplated by this Agreement, the Trust Agreement, the
Registration Statement and the Prospectus (or, if the
Prospectus in not in existence, the most recent Preliminary
Prospectus) do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of
the Offerors or the Subsidiaries or the Designated Preferred
Securities pursuant to, constitute a breach or violation of,
or constitute a default under, with or without notice or
lapse of time or both, any of the terms, provisions or
conditions of the charter or by-laws of the Company or the
Subsidiaries, the Trust Agreement, the Guarantee, the
Indenture, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license,
Permit or any other agreement or instrument to which the
Offerors or the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound or
any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction
over the Offerors or the Subsidiaries or any of their
respective properties which conflict, creation, imposition,
breach, violation or default would have either singly or in
the aggregate a material adverse effect on the condition,
financial or otherwise, earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of or filing, registration or
qualification with, any person (including, without
limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by
this Agreement, the Trust Agreement, the Indenture, the
Guarantee, the Registration Statement and the Prospectus,
except such as have been obtained under the 1933 Act, the
Trust Indenture Act and from the Nasdaq Stock Market's
National Market relating to the listing of the Designated
Preferred Securities, and such as may be required under
state securities laws or Interpretations or Rules of the
National Association of Securities Dealers, Inc. ("NASD") in
connection with the purchase and distribution of the
Designated Preferred Securities by the Underwriter.
(xv) The Offerors have all requisite corporate
power and authority to enter into this Agreement and this
Agreement has been duly and validly authorized,
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executed and delivered by the Offerors and constitutes the
legal, valid and binding agreement of the Offerors,
enforceable against the Offerors in accordance with its terms,
except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws relating
to or affecting creditors' rights generally and except as any
indemnification or contribution provisions thereof may be
limited under applicable securities laws. Each of the
Indenture, the Trust Agreement, the Guarantee and the
Expense Agreement has been duly authorized by the Company,
and, when executed and delivered by the Company on the
Closing Date, each of said agreements will constitute a
valid and legally binding obligation of the Company and will
be enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy or other laws
relating to or affecting creditors' rights generally and
except as any indemnification or contribution provisions
thereof may be limited under applicable securities laws.
Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act and
will conform to the description thereof contained in the
Prospectus.
(xvi) The Company and the Subsidiaries have
good and marketable title in fee simple to all real property
and good title to all personal property owned by them and
material to their business, in each case free and clear of
all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other
defects except such as are referred to in the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) or such as do not materially affect
the value of such property in the aggregate and do not
materially interfere with the use made or proposed to be
made of such property; and all of the leases under which the
Company or the Subsidiaries hold real or personal property
are valid, existing and enforceable leases and in full force
and effect with such exceptions as are not material and do
not materially interfere with the use made or proposed to be
made of such real or personal property, and neither the
Company nor any of the Subsidiaries is in default in any
material respect of any of the terms or provisions of any
leases.
(xvii) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, 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.
(xviii) The consolidated financial statements
including the notes thereto, included by incorporation by
reference or otherwise in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) with respect to the
Company and the Subsidiaries, comply in all material
respects with the 1933 Act and the 1933 Act Regulations and
present fairly the consolidated financial position of the
Company and the Subsidiaries as of the dates indicated and
the consolidated results of operations, cash flows and
shareholders' equity of the Company and the Subsidiaries for
the periods specified and have been prepared in conformity
with generally accepted accounting principles applied on a
consistent basis. The selected and summary consolidated
financial data concerning the Offerors and the
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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 Offerors 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).
(xix) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), except as otherwise
stated therein:
(A) neither of the Offerors nor any of the
Subsidiaries have 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), earnings, business, prospects
or results of operations of the Offerors 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), earnings, business,
prospects or results of operations of the Offerors and
the Subsidiaries on a consolidated basis, whether or
not arising in the ordinary course of business;
(C) neither of the Offerors nor any of the
Subsidiaries have 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), earnings, business, prospects
or results of operations of the Offerors and the
Subsidiaries on a consolidated basis;
(D) neither of the Offerors have declared or
paid any dividend, and neither of the Offerors nor any
of the Subsidiaries have become delinquent in the
payment of principal or interest on any outstanding
borrowings; and
(E) there has not been any change in the
capital stock, equity securities, long-term debt,
obligations under capital leases or, other than in the
ordinary course of business, short-term borrowings of
the Offerors or the Subsidiaries.
(xx) Except as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary
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Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Offerors,
threatened, against or affecting the Offerors or the
Subsidiaries or any of their respective properties before or
by any court or any regulatory, administrative or governmental
official, commission, board, agency or other authority or
body, or any arbitrator, wherein an unfavorable decision,
ruling or finding could have a material adverse effect on the
consummation of this Agreement or the transactions
contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries
on a consolidated basis or which is required to be disclosed
in the Registration Statement or the Prospectus (or such
Preliminary Prospectus) and is not so disclosed.
(xxi) There are no contracts or other
documents required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act
Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as
exhibits or incorporated by reference to the Registration
Statement, or that are required to be summarized in the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) that are not so
summarized.
(xxii) Neither of the Offerors has taken,
directly or indirectly, any action designed to result in or
which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the
price of any security of the Offerors to facilitate the sale
or resale of the Designated Preferred Securities, and
neither of the Offerors is aware of any such action taken or
to be taken by any affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own,
or possess adequate rights to use, all patents, copyrights,
trademarks, service marks, trade names and other rights
necessary to conduct the businesses now conducted by them in
all material respects or as described in the Prospectus (or,
if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and neither the Offerors 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), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, and the Offerors do
not know of any basis for any such infringement or conflict.
(xxiv) Except as adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), no labor dispute
involving the Company or the Subsidiaries exists or, to the
knowledge of the Offerors, is imminent which might be
expected to have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis or which is required to
be disclosed in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus).
Neither the Company nor any of the Subsidiaries have
received notice of any existing or threatened labor dispute
by the employees of any of its principal suppliers,
customers or contractors which might be expected to have a
material adverse
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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.
(xxv) The Offerors and the Subsidiaries have
timely and properly prepared and filed all necessary
federal, state, local and foreign tax returns which are
required to be filed and have paid all taxes shown as due
thereon and have paid all other taxes and assessments to the
extent that the same shall have become due, except such as
are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a
material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries
on a consolidated basis. The Offerors have no knowledge of
any tax deficiency which has been or might be assessed
against the Offerors or the Subsidiaries which, if the
subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries
on a consolidated basis.
(xxvi) Each of the material contracts,
agreements and instruments described or referred to in the
Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, the most recent 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 Offerors or the Subsidiaries, enforceable
in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting
creditors' rights generally. Except as disclosed in the
Prospectus (or such Preliminary Prospectus), to the
knowledge of the Offerors, no other party to any such
agreement is (with or without notice or lapse of time or
both) in breach or default in any material respect
thereunder.
(xxvii) No relationship, direct or indirect,
exists between or among the Offerors or the Subsidiaries, on
the one hand, and the directors, officers, trustees,
shareholders, customers or suppliers of the Offerors or the
Subsidiaries, on the other hand, which is required to be
described in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) which is not adequately described
therein.
(xxviii) No person has the right to request or
require the Offerors or the Subsidiaries to register any
securities for offering and sale under the 1933 Act by
reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Designated
Preferred Securities except as adequately disclosed in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xxix) The Designated Preferred Securities have
been approved for quotation on the Nasdaq Stock Market's
National Market subject to official notice of issuance.
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(xxx) Except as described in or contemplated
by the Prospectus (or, if the Prospectus is not in
existence, the most recent 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 Offerors, (B) to make any loans or
advances to, or investments in, the Offerors or (C) to
transfer any of its property or assets to the Offerors.
(xxxi) Neither of the Offerors is an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company
Act").
(xxxii) The Offerors have not distributed and
will not distribute prior to the Closing Date any prospectus
in connection with the Offering, other than a Preliminary
Prospectus, the Prospectus, the Registration Statement and
the other materials permitted by the 1933 Act and the 1933
Act Regulations and reviewed by the Underwriter.
3. OFFERING BY THE UNDERWRITER. After the Registration
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Statement becomes effective or, if the Registration Statement is
already effective, after this Agreement becomes effective, the
Underwriter proposes to offer the Firm Preferred Securities for
sale to the public upon the terms and conditions set forth in the
Prospectus. The Underwriter may from time to time thereafter
reduce the public offering price and change the other selling
terms, provided the proceeds to the Trust shall not be reduced as
a result of such reduction or change.
The Underwriter may reserve and sell such of the
Designated Preferred Securities purchased by the Underwriter as
the Underwriter may elect to dealers chosen by it (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 Underwriter may allow, and
Selected Dealers may re-allow, a concession set forth in the
Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors
---------------------------------
jointly and severally covenant with the Underwriter as follows:
(a) The Offerors shall use their best efforts to cause
the Registration Statement and any amendments thereto, if not
effective at the time of execution of this Agreement, to become
effective as promptly as possible. If the Registration Statement
has become or becomes effective pursuant to Rule 430A and
information has been omitted therefrom in reliance on Rule 430A,
then, the Offerors will prepare and file in accordance with
Rule 430A and Rule 424(b) copies of the Prospectus or, if
required by Rule 430A, a post-effective amendment to the
Registration Statement (including the Prospectus) containing all
information so omitted and will provide evidence satisfactory to
the Underwriter of such timely filing.
(b) The Offerors shall notify the Underwriter
immediately, and confirm such notice in writing:
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(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 Preferred Securities
for offering or sale in any jurisdiction or the institution
or threat of institution of any proceedings for any of such
purposes. The Offerors shall use their best efforts to
prevent the issuance of any such stop order or of any other
such order and if any such order is issued, to cause such
order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriter,
from time to time without charge, as soon as available, as many
copies as the Underwriter 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) each Preliminary Prospectus and all
amendments and supplements thereto, and (v) the Prospectus, and
all amendments and supplements thereto.
(d) During the time when a prospectus is required to
be delivered under the 1933 Act, the Offerors shall comply to the
best of their ability with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as
to permit the completion of the distribution of the Designated
Preferred Securities as contemplated herein and in the Trust
Agreement and the Prospectus. The Offerors shall not file any
amendment to the registration statement as originally filed or to
the Registration Statement and shall not file any amendment
thereto or make any amendment or supplement to any Preliminary
Prospectus or to the Prospectus of which the Underwriter shall
not previously have been advised in writing and provided a copy a
reasonable time prior to the proposed filings thereof or to which
the Underwriter or its counsel shall object. If it is necessary,
in the Company's reasonable opinion or in the reasonable opinion
of the Company's counsel to amend or supplement the Registration
Statement or the Prospectus in connection with the distribution
of the Designated Preferred Securities, the Offerors shall
forthwith amend or supplement the Registration Statement or the
Prospectus, as the case may be, by preparing and filing with the
Commission (provided the Underwriter or its counsel does not
reasonably object), and furnishing to the Underwriter, such
number of copies as the Underwriter 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 the Underwriter
and its counsel). 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
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statements therein, in light of the circumstances under which they
were made, not misleading, or if for any reason it is necessary at
any time to amend or supplement the Prospectus to comply with the
1933 Act and the 1933 Act Regulations, the Offerors shall, subject
to the second sentence of this subsection (d), forthwith amend or
supplement the Prospectus by preparing and filing with the
Commission, and furnishing to the Underwriter, such number of
copies as the Underwriter may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus
(in form and substance satisfactory to the Underwriter and its
counsel) so that, as so amended or supplemented, the Prospectus
shall not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(e) The Offerors shall cooperate with the Underwriter
and its counsel in order to qualify the Designated Preferred
Securities for offering and sale under the securities or blue sky
laws of such jurisdictions as the Underwriter may reasonably
request and shall continue such qualifications in effect so long
as may be advisable for distribution of the Designated Preferred
Securities; provided, however, that the Offerors shall not be
required to qualify to do business as a foreign corporation or
file a general consent to service of process in any jurisdiction
in connection with the foregoing. The Offerors shall file such
statements and reports as may be required by the laws of each
jurisdiction in which the Designated Preferred Securities have
been qualified as above. The Offerors will notify the
Underwriter immediately of, and confirm in writing, the
suspension of qualification of the Designated Preferred
Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to
their security holders in the manner contemplated by Rule 158 of
the 1933 Act Regulations and furnish to the Underwriter as soon
as practicable, but in any event not later than 16 months after
the Effective Date, a consolidated earnings statement of the
Offerors conforming with the requirements of Section 11(a) of the
1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale
of the Designated Preferred Securities to be sold by the Trust
hereunder in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(h) For five years from the Effective Date, the
Offerors shall furnish to the Underwriter copies of all reports
and communications (financial or otherwise) furnished by the
Offerors to the holders of the Designated Preferred Securities as
a class, copies of all reports and financial statements filed
with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the
Commission) or with any national securities exchange or the
Nasdaq Stock Market's National Market and such other documents,
reports and information concerning the business and financial
conditions of the Offerors as the Underwriter may reasonably
request, other than such documents, reports and information for
which the Offerors has the legal obligation not to reveal to the
Underwriter.
(i) For a period of 30 days from the Effective Date,
the Offerors shall not, directly or indirectly, offer for sale,
sell or agree to sell or otherwise dispose of any Designated
Preferred Securities other than pursuant to this Agreement, any
other beneficial interests in the assets of the Trust or any
securities of the Trust or the Company that are substantially
similar to
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the Designated Preferred Securities, including any guarantee of
such beneficial interests or substantially similar securities, or
securities convertible into or exchangeable for or that represent
the right to receive any such beneficial interest or substantially
similar securities without the Underwriter's prior written consent.
(j) The Offerors shall use their best efforts to cause
the Designated Preferred Securities to become quoted on the
Nasdaq Stock Market's National Market, or in lieu thereof a
national securities exchange, and to remain so quoted for at
least five years from the Effective Date or for such shorter
period as may be specified in a written consent of the
Underwriter, provided this shall not prevent the Company from
redeeming the Designated Preferred Securities pursuant to the
terms of the Trust Agreement. If the Designated Preferred
Securities are exchanged for Debentures, the Company will use its
best efforts to have the Debentures promptly listed on the Nasdaq
Stock Market's National Market or other organization on which the
Designated Preferred Securities are then listed, and to have the
Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and
through the date which is the later of (i) the day following the
date on which the Underwriter's option to purchase the Option
Preferred Securities shall expire or (ii) the day following the
Option Closing Date with respect to any Option Preferred
Securities that the Underwriter shall elect to purchase, except
as described in or contemplated by the Prospectus, neither the
Offerors nor any of the Subsidiaries shall take any action (or
refrain from taking any action) which will result in the Offerors
or the Subsidiaries incurring any material liability or
obligation, direct or contingent, or enter into any material
transaction, except in the ordinary course of business, and there
will not be any material change in the financial position,
capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the
Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not take, directly or
indirectly, any action designed to result in or which has
constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any
security of the Offerors to facilitate the sale or resale of the
Designated Preferred Securities and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the
Offerors.
(m) Prior to the Closing Date (and, if applicable, the
Option Closing Date), the Offerors will not issue any press
release or other communication directly or indirectly or hold any
press conference with respect to the Offerors, the Subsidiaries
or the offering of the Designated Preferred Securities (the
"Offering") without the Underwriter's prior written consent.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is
-------------------
terminated or the sale of the Designated Preferred Securities to
the Underwriter is consummated, the Company covenants and agrees
that it will pay or cause to be paid (directly or by
reimbursement) all costs and expenses incident to the performance
of the obligations of the Offerors under this Agreement,
including:
(a) the preparation, printing, filing, delivery and
shipping of the initial registration statement, the Preliminary
Prospectus or Prospectuses, the Registration Statement
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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), the certificates for the Designated
Preferred Securities and the Preliminary and Final Blue Sky
Memoranda and any legal investment surveys and any supplements
thereto;
(b) all fees, expenses and disbursements of the
Offerors' counsel and accountants;
(c) all fees and expenses incurred in connection with
the qualification of the Designated Preferred Securities,
Debentures and the Guarantee under the securities or blue sky
laws of such jurisdictions as the Underwriter may request,
including all filing fees and fees and disbursements of counsel
to the Underwriter in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary
and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(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 Preferred
Securities and, if applicable, the Guarantee and the Debentures
on the Nasdaq Stock Market's National Market;
(f) the cost of furnishing to the Underwriter 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 to any
transfer agent or registrar;
(h) all costs and expenses (including stock transfer
taxes) incurred in connection with the printing, issuance and
delivery of the Designated Preferred Securities to the
Underwriter;
(i) all expenses incident to the preparation,
execution and delivery of the Trust Agreement, the Indenture and
the Guarantee; and
(j) all other costs and expenses incident to the
performance of the obligations of the Company hereunder and under
the Trust Agreement that are not otherwise specifically provided
for in this Section 5.
If the sale of Designated Preferred Securities
contemplated by this Agreement is not completed due to the
termination pursuant to the terms, the Company will pay the
Underwriter its accountable out-of-pocket expenses in connection
herewith or in contemplation of the performance of the
Underwriter's obligations hereunder, including without limitation
travel expenses, reasonable fees, expenses and disbursements of
counsel or other out-of-pocket expenses incurred by the
Underwriter in connection with any discussion of the Offering or
the
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contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the
marketing, purchase, sale or delivery of the Designated Preferred
Securities, in each case following presentation of reasonably
detailed invoices therefor.
If the sale of Designated Preferred Securities
contemplated by this Agreement is completed, the Company shall
not be responsible for payment of fees or disbursements of
counsel to the Underwriter other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of
the Underwriter.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The
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obligations of the Underwriter to purchase and pay for the Firm
Preferred Securities and, following exercise of the option
granted by the Offerors in Section 1 of this Agreement, the
Option Preferred Securities, are subject, in the Underwriter's
sole discretion, to the accuracy of and compliance with the
representations and warranties and agreements of the Offerors
herein as of the date hereof and as of the Closing Date (or in
the case of the Option Preferred Securities, if any, as of the
Option Closing Date), to the accuracy of the written statements
of the Offerors made pursuant to the provisions hereof, to the
performance by the Offerors of their covenants and obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared
effective prior to the time of execution hereof, the Registration
Statement shall become effective not later than 10:00 a.m., St.
Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as
the Underwriter may agree to in writing. If required, the
Prospectus and any amendment or supplement thereto shall have
been timely filed in accordance with Rule 424(b) and Rule 430A
under the 1933 Act and Section 4(a) hereof. No stop order
suspending the effectiveness of the Registration Statement or any
amendment or supplement thereto shall have been issued under the
1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall
be pending, or, to the knowledge of the Offerors or the
Underwriter, 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 the Underwriter and complied with to the
satisfaction of the Underwriter and its counsel.
(b) The Underwriter shall not 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 the Underwriter's opinion, is material or omits to
state a fact which, in the Underwriter's opinion, is material and
is required to be stated therein or is necessary to make
statements therein (in the case of the Prospectus or any
amendment or supplement thereto, in light of the circumstances
under which they were made) not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Trust Agreement, and the Designated Preferred
Securities, and the authorization and form of the Registration
Statement and Prospectus, other than financial statements and
other financial data, and all other legal matters relating to
this Agreement and the transactions contemplated hereby or by the
Trust Agreement
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shall be satisfactory in all material respects to counsel to the
Underwriter, and the Offerors and the Subsidiaries shall have
furnished to such counsel all documents and information relating
thereto that they may reasonably request to enable them to pass
upon such matters.
(d) ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇., counsel to the
Offerors, shall have furnished to the Underwriter their signed
opinion, dated the Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to counsel to
the Underwriter, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
State of Arkansas, 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. 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. To the
best of such counsel's knowledge, 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.
(ii) The capital stock, Debentures and Guarantee
of the Company and the equity securities of the Trust
conform to the description thereof contained in the
Prospectus in all material respects. To the best of such
counsel's knowledge, the capital stock of the Company
authorized and issued as of March 31, 1997 is as set forth
under the caption "Capitalization" in the Prospectus, has
been duly authorized and validly issued, and is fully paid
and nonassessable. To the best of such counsel's knowledge,
there are no outstanding rights, options or warrants to
purchase, no other outstanding securities convertible into
or exchangeable for, and no commitments, plans or
arrangements to issue, any shares of capital stock of the
Company or equity securities of the Trust, except as
described in the Prospectus.
(iii) The issuance, sale and delivery of the
Designated Preferred Securities and Debentures in accordance
with the terms and conditions of this Agreement and the
Indenture have been duly authorized by all necessary actions
of the Offerors. All of the Designated Preferred Securities
have been duly and validly authorized and, when delivered in
accordance with this Agreement will be duly and validly
issued, fully paid and nonassessable, and will conform to
the description thereof in the Registration Statement, the
Prospectus and the Trust Agreement. The Designated
Preferred Securities have been approved for quotation on the
Nasdaq Stock Market's National Market subject to official
notice of issuance. There are no preemptive or other rights
to subscribe for or to purchase, and other than as disclosed
in the Prospectus no restrictions upon the voting or
transfer of, any shares of capital stock or equity
securities of the Offerors or the Subsidiaries pursuant to
the corporate charter, by-laws or other governing documents
(including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries,
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or, to the best of such counsel's knowledge, any agreement or
other instrument to which either Offeror or any of the
Subsidiaries is a party or by which either Offeror or any of
the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and
trust power to enter into and perform their obligations
under this Agreement, and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors
and constitutes the legal, valid and binding obligations of
the Offerors enforceable in accordance with its terms,
except as the enforcement hereof or thereof may be limited
by general principles of equity and by bankruptcy or other
laws relating to or affecting creditors' rights generally,
and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and
certain remedies may not be available in the case of a non-
material breach.
(v) Each of the Indenture, the Trust Agreement
and the Guarantee has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and
of general principles of equity.
(vi) The Debentures have been duly authorized,
executed, authenticated and delivered by the Company, are
entitled to the benefits of the Indenture and are legal,
valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, subject
to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general
principles of equity.
(vii) The Expense Agreement has been duly
authorized, executed and delivered by the Company, and is a
valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general
principles of equity.
(viii) To the best of such counsel's knowledge,
neither of the Offerors nor any of the Subsidiaries is in
breach or violation of, or default under, with or without
notice or lapse of time or both, its corporate charter, by-
laws or governing document (including without limitation,
the Trust Agreement). The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated by this Agreement, and the Trust
Agreement do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of
the Offerors or the Subsidiaries or the Designated Preferred
Securities pursuant to, or constitute a material breach or
violation of, or constitute a material default under, with
or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws or
governing document (including without limitation, the Trust
Agreement) of the Offerors or the Subsidiaries, or to the
best of such counsel's knowledge, any material contract,
indenture, mortgage, deed
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of trust, loan or credit agreement, note, lease, franchise,
license or any other agreement or instrument to which either
Offeror or the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound or any
order, decree, judgment, franchise, license, Permit, rule or
regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign,
known to such counsel having jurisdiction over the Offerors
or the Subsidiaries or any of their respective properties
which, in each case, is material to the Offerors and the
Subsidiaries on a consolidated basis. 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 under Arkansas law in connection with the
transactions contemplated by this Agreement in connection
with the purchase and distribution of the Designated
Preferred Securities by the Underwriter.
(ix) To the best of such counsel's knowledge,
holders of securities of the Offerors either do not have any
right that, if exercised, would require the Offerors to
cause such securities to be included in the Registration
Statement or have waived such right. To the best of such
counsel's knowledge, neither the Offerors nor any of the
Subsidiaries is a party to any agreement or other instrument
which grants rights for or relating to the registration of
any securities of the Offerors.
(x) Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's
knowledge, (i) no action, suit or proceeding at law or in
equity is pending or threatened in writing to which the
Offerors or the Subsidiaries is or may be a party, and (ii)
no action, suit or proceeding is pending or threatened in
writing against or affecting the Offerors or the
Subsidiaries or any of their properties, before or by any
court or governmental official, commission, board or other
administrative agency, authority or body, or any arbitrator,
wherein an unfavorable decision, ruling or finding could
reasonably be expected to have a material adverse effect on
the consummation of this Agreement or the issuance and sale
of the Designated Preferred Securities as contemplated
herein or the condition (financial or otherwise), earnings,
affairs, business, or results of operations of the Offerors
and the Subsidiaries on a consolidated basis or which is
required to be disclosed in the Registration Statement or
the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order
of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body
or authority) is required in connection with the
transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus,
except such as have been obtained under the 1933 Act, the
Trust Indenture 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 Preferred Securities by the Underwriter.
(xii) The Registration Statement and the
Prospectus and any amendments or supplements thereto and any
documents incorporated therein by reference (other than the
financial statements or other financial data included
therein or omitted therefrom and Underwriter's Information,
as to which such counsel need express no
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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.
(xiii) To the best of such counsel's knowledge,
there are no contracts, agreements, leases or other
documents of a character required to be disclosed in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so
disclosed or filed.
(xiv) The statements under the captions
"Description of the Preferred Securities," "Description of
the Subordinated Debentures," "Description of the
Guarantee," "Relationship Among the Preferred Securities,
the Subordinated Debentures and the Guarantee," "Certain
Federal Income Tax Consequences," "ERISA Considerations" and
"Supervision and Regulation" in the Prospectus or
incorporated therein by reference, insofar as such
statements constitute a summary of legal and regulatory
matters, documents or instruments referred to therein, are
accurate descriptions of the matters summarized therein in
all material respects and fairly present the information
called for with respect to such legal matters, documents and
instruments, other than financial and statistical data as to
which said counsel expresses no opinion or belief.
(xv) 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.
(xvi) Except as described in or contemplated
by the Prospectus, to the best of such counsel's knowledge,
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
indebtedness owed to the Offerors, (B) to make any loans or
advances to, or investments in, the Offerors or (C) to
transfer any of its property or assets to the Offerors.
(xvii) To the best of such counsel's knowledge,
(A) the business and operations of the Offerors and the
Subsidiaries comply in all material respects with all
statutes, ordinances, laws, rules and regulations applicable
thereto and which are material to the Offerors and the
Subsidiaries on a consolidated basis, except in those
instances where non-compliance would not materially impair
the ability of the Offerors and the Subsidiaries to conduct
their business; and (B) the Offerors and the Subsidiaries
possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all
Permits that are required to conduct their businesses as
described in the Prospectus and that are material to the
Offerors and the Subsidiaries on a consolidated basis,
except in those instances where the loss thereof or non-
compliance therewith would not have a material adverse
effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the
Offerors and the Subsidiaries on a consolidated basis; to
the best of such counsel's knowledge, all such Permits are
valid
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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 Permit,
except in those instances where the loss thereof or non-
compliance therewith would not materially impair the ability
of the Offerors or the Subsidiaries to conduct their
businesses.
In giving the above opinion, such counsel may state
that, insofar as such opinion involves factual matters, they have
relied upon certificates of officers of the Offerors including,
without limitation, certificates as to the identity of any and
all material contracts, indentures, mortgages, deeds of trust,
loans or credit agreements, notes, leases, franchises, licenses
or other agreements or instruments, and all material permits,
easements, consents, licenses, franchises and government
regulatory authorizations, for purposes of paragraphs (viii),
(xiii) and (xvii) hereof and certificates of public officials.
In giving such opinion, such counsel may rely upon (A) the
opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Finger described herein as to
matters of Delaware law and (B) the opinion of Ramsay,
Bridgforth, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, as to matters of Arkansas law
and 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 Offerors and with their
independent public accountants and with the Underwriter and its
counsel, at which conferences such counsel made inquiries of such
officers, representatives and accountants and discussed in detail
the contents of the Registration Statement and Prospectus and the
documents incorporated therein by reference (without taking
further action to verify independently the statements made in the
Registration Statement and the Prospectus, and without assuming
responsibility for the accuracy or completeness of such
statements, except to the extent expressly provided above) 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 Underwriter's 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 or
the documents incorporated therein by reference (except for the
financial statements and related schedules and statistical data
included therein or omitted therefrom or Underwriter's
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 not misleading in light of the
circumstances under which they were made, or (C) that there is
any amendment to the Registration Statement required to be filed
that has not already been filed.
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(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Finger, special Delaware
counsel to the Offerors, shall have furnished to the Underwriter
their signed opinion, dated as of Closing Date or the Option
Closing Date, as the case may be, in form and substance
satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act and, under the Trust
Agreement and the Delaware Business Trust Act, has the trust
power and authority to conduct its business as described in
the Prospectus.
(ii) The Trust Agreement is a legal, valid and
binding agreement of the Trust and the Trustees, and is
enforceable against the Company, as sponsor, and the
Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the
Delaware Business Trust Act, the execution and delivery of
the Underwriting Agreement by the Trust, and the performance
by the Trust of its obligations thereunder, have been
authorized by all requisite trust action on the part of the
Trust.
(iv) The Designated Preferred Securities have been
duly authorized by the Trust Agreement, and when issued and
sold in accordance with the Trust Agreement, the Designated
Preferred Securities will be, subject to the qualifications
set forth in paragraph (v) below, fully paid and
nonassessable beneficial interest in the assets of the Trust
and entitled to the benefits of the Trust Agreement. The
form of certificates to evidence the Designated Preferred
Securities has been approved by the Trust and is in due and
proper form and complies with all applicable requirements of
the Delaware Business Trust Act.
(v) Holders of Designated Preferred Securities,
as beneficial owners of the Trust, will be entitled to the
same limitation of personal liability extended to
shareholders of private, for-profit corporations organized
under the General Corporation Law of the State of Delaware.
Such opinion may note that the holders of Designated
Preferred Securities may be obligated to make payments as
set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Preferred
Securities is not subject to preemptive rights.
(vii) The issuance and sale by the Trust of
the Designated Preferred Securities and the Common
Securities, the execution, delivery and performance by the
Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate
(a) the Trust Agreement, or (b) any applicable Delaware law,
rule or regulation.
Such opinion may state that it is limited to the laws
of the State of Delaware and that the opinion expressed in
paragraph (ii) above is subject to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation,
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fraudulent conveyance and other similar laws relating to or
affecting the rights and remedies of creditors generally, (ii)
principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution.
(f) ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Underwriter, shall
have furnished to the Underwriter their signed opinion, dated the
Closing Date or the Option Closing Date, as the case may be, with
respect to the sufficiency of all corporate procedures and other
legal matters relating to this Agreement, the validity of the
Designated Preferred Securities, the Registration Statement, the
Prospectus and such other related matters as to the Underwriter
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, ▇▇▇▇▇ ▇▇▇▇ LLP may rely as to matters of fact upon
statements and certifications of officers of the Offerors and of
other appropriate persons and may rely as to matters of law,
other than law of the United States and the State of Missouri,
and upon the opinions of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇. and
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Finger described herein.
(g) On the date of this Agreement and on the Closing
Date (and, if applicable, any Option Closing Date), the
Underwriter shall have received from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ 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 Underwriter, 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
and 1933 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
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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, any decreases in consolidated total assets
or shareholders equity of the Company, or any changes,
decreases or increases in other items specified by the
Underwriter, 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 interest
income, net interest income, or net income of the
Company or in the per share amount of net income of the
Company, or any changes, decreases or increases in any
other items specified by the Underwriter, in each case
as compared with the comparable period of the preceding
year and with any other period of corresponding length
specified by the Underwriter, except in each case for
increases or decreases which the Registration Statement
discloses have occurred or may occur, or which are
described in such letter.
(iv) In addition to the audit referred to in their
report included 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 Underwriter which are derived from the
general accounting records and consolidated financial
statements of the Company which appear in the Registration
Statement specified by the Underwriter 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 letters to be delivered 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 Underwriter's obligations
that the Underwriter 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
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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 Underwriter, or (z) reflect a
material change in items specified in Clause (iv) above from the
amounts shown in the Preliminary Prospectus distributed by the
Underwriter in connection with the offering contemplated hereby
or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option
Closing Date, the Underwriter shall have received certificates of
the chief executive officer and the chief financial and
accounting officer of the Company, which certificates shall be
deemed to be made on behalf of the Company dated as of the
Closing Date and, if applicable, the Option Closing Date,
evidencing satisfaction of the conditions of Section 6(a) and
stating that (i) the representations and warranties of the
Company set forth in Section 2(a) hereof are accurate as of the
Closing Date and, if applicable, the Option Closing Date, and
that the Offerors have complied with all agreements and satisfied
all conditions on their part to be performed or satisfied at or
prior to such Closing Date; (ii) since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change in the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis; (iii) since such dates
there has not been any material transaction entered into by the
Offerors or the Subsidiaries other than transactions in the
ordinary course of business; and (iv) they have carefully
examined the Registration Statement and the Prospectus as amended
or supplemented and nothing has come to their attention that
would lead them to believe that either the Registration Statement
or the Prospectus, or any amendment or supplement thereto as of
their respective effective or issue dates, contained, and the
Prospectus as amended or supplemented at such Closing Date (and,
if applicable, the Option Closing Date), contains any untrue
statement of a material fact, or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and (v) covering such other
matters as the Underwriter may reasonably request. The officers'
certificate of the Company shall further state that no stop order
affecting the Registration Statement is in effect or, to their
knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option
Closing Date, the Underwriter shall have received a certificate
of an authorized representative of the Trust to the effect that
to the best of his or her knowledge based upon a reasonable
investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of
the Closing Date (and, if applicable, the Option Closing Date);
the Trust has complied with all the agreements and satisfied all
the conditions required by this Agreement to be performed or
satisfied by the Trust on or prior to the Closing Date and since
the most recent date as of which information is given in the
Prospectus, except as contemplated by the Prospectus, the Trust
has not incurred any material liabilities or obligations, direct
or contingent, or entered into any material transactions not in
the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise)
of the Trust.
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(j) On the Closing Date, the Underwriter shall have
received duly executed counterparts of the Trust Agreement, the
Guarantee, the Indenture and the Expense Agreement.
(k) The NASD, upon review of the terms of the public
offering of the Designated Preferred Securities, shall not have
objected to the Underwriter's participation in such offering.
(l) Prior to the Closing Date and, if applicable, the
Option Closing Date, the Offerors shall have furnished to the
Underwriter and its counsel 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 the
Underwriter. The Offerors shall furnish the Underwriter with
conformed copies of such opinions, certificates, letters and
other documents as the Underwriter 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 Underwriter's
obligations hereunder may be terminated by the Underwriter 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 Underwriter to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) The Offerors agree to jointly and severally
indemnify and hold harmless the Underwriter, each of its
directors, officers and agents, and each person, if any, who
controls the 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 (i) upon any untrue statement or alleged untrue
statement of a material fact made by the Company or the Trust
contained in Section 2(a) of this Agreement (or any certificate
delivered by the Company or the Trust pursuant to Sections 6(h),
6(i) or 6(l) hereof) 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) upon any blue sky application or other document executed by
the Company or the Trust specifically for that purpose or based
upon written information furnished by the Company or the Trust
filed in any state or other jurisdiction in order to qualify any
of the Designated Preferred Securities under the securities laws
thereof (any such application, document or information being
hereinafter referred to as a "Blue Sky Application"), (iii) any
omission or alleged omission to state a material fact in the
registration statement as originally filed or the Registration
Statement, the Preliminary Prospectus or the Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky
Application required to be stated therein or necessary to make
the statements therein not misleading, and against any and all
losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorney fees), joint or
several, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, or arising out of or based upon any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the
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statements therein, in the light of the circumstances under which
they were made, not misleading or (iv) the enforcement of this
indemnification provision or the contribution provisions of Section
7(d); and shall reimburse each such indemnified party for any
reasonable legal or other expenses as incurred, but in no event
less frequently than 30 days after each invoice is submitted,
incurred by them in connection with investigating or defending
against or appearing as a third-party witness in connection with
any such loss, claim, damage, liability or action, notwithstanding
the possibility that payments for such expenses might later be held
to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Offerors shall not be
-----------------
liable in any such case to the extent, but only to the extent,
that any such losses, claims, damages, liabilities and expenses
arise out of or are based upon any untrue statement or omission
or allegation thereof that has been made therein or omitted
therefrom in reliance upon and in conformity with the
Underwriter's Information; provided, that the indemnification
--------
contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of the Underwriter (or
of any person controlling the Underwriter) to the extent any such
losses, claims, damages, liabilities or expenses directly results
from the fact that the Underwriter sold Designated Preferred
Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the
Prospectus (as amended or supplemented if any amendments or
supplements thereto shall have been furnished to the Underwriter
in sufficient time to distribute same with or prior to the
written confirmation of the sale involved), if required by law,
and if such loss, claim, damage, liability or expense would not
have arisen but for the failure to give or send such person such
document. The foregoing indemnity agreement is in addition to
any liability the Company or the Trust may otherwise have to any
such indemnified party.
(b) The Underwriter agrees to indemnify and hold
harmless each Offeror, each of its directors, each of its
officers who signed the Registration Statement and each person,
if any, who controls an Offeror within the meaning of the 1933
Act, to the same extent as required by the foregoing indemnity
from the Company to the Underwriter, but only with respect to the
Underwriter's Information or in a Blue Sky Application. The
foregoing indemnity agreement is in addition to any liability
which the Underwriter may otherwise have to any such indemnified
party.
(c) If any action or claim shall be brought or
asserted against any indemnified party or any person controlling
an indemnified party in respect of which indemnity may be sought
from the indemnifying party, such indemnified party or
controlling person shall promptly notify the indemnifying party
in writing, and the indemnifying party shall assume the defense
thereof, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of all
expenses; provided, however, that the failure so to notify the
-----------------
indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under such
paragraph, and further, shall only relieve it from liability
under such paragraph to the extent prejudiced thereby. Any
indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such indemnified party or
such controlling person unless (i) the employment thereof has
been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the
defense or to employ counsel reasonably satisfactory to the
indemnified
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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 parties and controlling
persons, which firm shall be designated in writing by the
indemnified party and shall be reasonably satisfactory to the
indemnifying party. 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 be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party and any such
controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior
written consent of each indemnified party, settle, compromise or
consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnity
may be sought hereunder (whether or not such indemnified party or
any person who controls such indemnified party within the meaning
of the 1933 Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent
includes a release of each such indemnified party reasonably
satisfactory to each such indemnified party and each such
controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall
confirm in a written agreement with each indemnified party, that
notwithstanding any federal, state or common law, such
settlement, compromise or consent shall not alter the right of
any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this
Section 7 is unavailable or insufficient to hold harmless an
indemnified party under paragraphs (a), (b) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Offerors on the one hand and the Underwriter on
the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Offerors
on the one hand and the Underwriter on the other in connection
with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other
relevant equitable
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considerations. The relative benefits received by the Offerors on
the one hand and the Underwriter on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
of the Designated Preferred Securities (before deducting expenses)
received by the Offerors bear to the total underwriting discounts,
commissions and compensation received by the Underwriter, in each
case as set forth in the table on the cover page of the Prospectus.
The relative fault of the Offerors on the one hand and of the
Underwriter on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Offerors or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. Each Offeror and the
Underwriter 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), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten
by the Underwriter and distributed to the public were offered to
the public exceeds the amount of any damages that the 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 the Underwriter within the meaning of the 1933 Act shall
have the same rights to contribution as the Underwriter, and each
person who controls an Offeror within the meaning of the 1933
Act, each officer and trustee of an Offeror who shall have signed
the Registration Statement and each director of an Offeror shall
have the same rights to contribution as the Offerors subject in
each case to the preceding sentence. The obligations of the
Offerors under this paragraph (d) shall be in addition to any
liability which the Offerors may otherwise have and the
obligations of the Underwriter under this paragraph (d) shall be
in addition to any liability that the Underwriter may otherwise
have.
(e) The indemnity and contribution agreements
contained in this Section 7 and the representations and
warranties of the Offerors set forth in this Agreement shall
remain operative and in full force and effect, regardless of
(i) any investigation made by or on behalf of the Underwriter or
any person controlling the Underwriter or by or on behalf of the
Offerors, or such directors, trustees or officers (or any person
controlling an Offeror, (ii) acceptance of any Designated
Preferred Securities and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of the Underwriter or
of an Offeror, such directors, trustees or officers (or of any
person controlling the Underwriter or an Offeror) shall be
entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
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(f) The Company agrees to indemnify the Trust against
any and all losses, claims, damages or liabilities that may
become due from the Trust under this Section 7.
8. TERMINATION. The Underwriter shall have the right to
-----------
terminate this Agreement at any time at or prior to the Closing
Date or, with respect to the Underwriter's obligation to purchase
the Option Preferred Securities, at any time at or prior to the
Option Closing Date, without liability on the part of the
Underwriter to the Offerors, if:
(a) Either Offeror shall have failed, refused, or been
unable to perform any agreement on its part to be performed under
this Agreement, or any of the conditions referred to in Section 6
shall not have been fulfilled, when and as required by this
Agreement;
(b) The Offerors or any of the Subsidiaries shall have
sustained any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree which in the judgment of the
Underwriter materially impairs the investment quality of the
Designated Preferred Securities;
(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 is reasonably likely to have a material adverse effect on,
the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and
the Subsidiaries on a consolidated basis, whether or not arising
in the ordinary course of business;
(d) There has occurred any outbreak of hostilities or
other calamity or crisis or material change in general economic,
political or financial conditions, or internal conditions, the
effect of which on the financial markets of the United States is
such as to make it, in the Underwriter's reasonable judgment,
impracticable to market the Designated Preferred Securities or
enforce contracts for the sale of the Designated Preferred
Securities;
(e) Trading generally on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq Stock Market's National
Market shall have been suspended, or minimum or maximum prices
for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, by any of said exchanges
or market system or by the Commission or any other governmental
authority;
(f) A banking moratorium shall have been declared by
either federal or Arkansas authorities; or
(g) Any action shall have been taken by any government
in respect of its monetary affairs which, in the Underwriter's
reasonable judgment, has a material adverse effect on the United
States securities markets.
The Offerors shall have the right to terminate this
Agreement at any
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time at or prior to the Closing Date or, with respect to the sale
of the Option Preferred Securities, at any time at or prior to the
Option Closing Date, if a Tax Event or a Capital Treatment Event,
as such terms are defined in the Registration Statement, shall have
occurred.
If this Agreement shall be terminated pursuant to this
Section 8, the Offerors shall not then be under any liability to
the Underwriter except as provided in Sections 5 and 7 hereof.
9. EFFECTIVE DATE OF AGREEMENT. If the Registration
---------------------------
Statement is not effective at the time of execution of this
Agreement, this Agreement shall become effective on the Effective
Date at the time the Commission declares the Registration
Statement effective. The Company shall immediately notify the
Underwriter 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 Underwriter shall
release the Designated Preferred Securities for initial public
offering. The Underwriter shall notify the Offerors immediately
after it has taken any action which causes this Agreement to
become effective.
Until such time as this Agreement shall have become
effective, it may be terminated by the Offerors, by notifying the
Underwriter, or by the Underwriter, by notifying either Offeror,
except that the provisions of Sections 5 and 7 shall at all times
be effective.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
-----------------------------------------------------
DELIVERY. The representations, warranties, indemnities,
--------
agreements and other statements of the Offerors and their
officers and trustees set forth in or made pursuant to this
Agreement and the agreements of the Underwriter contained in
Section 7 hereof shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of
the Offerors or controlling persons of either Offeror, or by or
on behalf of the Underwriter or controlling persons of the
Underwriter or any termination or cancellation of this Agreement
and shall survive delivery of and payment for the Designated
Preferred Securities.
11. 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 either Offeror shall
be sent to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇. ▇▇▇▇▇▇ May (with a copy to ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇,
▇.▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇, Esq.; and to Ramsay, Bridgforth,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.); and notices to the
Underwriter shall be sent to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇ ▇▇▇▇ LLP,
One Metropolitan Square, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.).
12. PARTIES. The Agreement herein set forth is made solely
-------
for the benefit of the Underwriter and the Offerors and, to the
extent expressed, directors, trustees and officers of the
Offerors, any person controlling the Offerors or the Underwriter,
and their respective successors
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and assigns. No other person shall acquire or have any right under
or by virtue of this Agreement. The term "successors and assigns"
shall not include any purchaser, in his status as such purchaser,
from the Underwriter of the Designated Preferred Securities.
13. 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.
14. 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.
[The remainder of this page is intentionally left blank.]
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If the foregoing is in accordance with the your
understanding of our agreement, please sign and return to us a
counterpart hereof, whereupon this shall become a binding
agreement between the Company, the Trust and you in accordance
with its terms.
Very truly yours,
▇▇▇▇▇▇▇ FIRST NATIONAL
CORPORATION
By:-------------------------------
Name:
Title:
▇▇▇▇▇▇▇ FIRST CAPITAL TRUST
By:-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of June ---, 1997.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By:---------------------------
Name:
Title:
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EXHIBIT A
LIST OF SUBSIDIARIES
▇▇▇▇▇▇▇ First Capital Trust
▇▇▇▇▇▇▇ First National Bank
▇▇▇▇▇▇▇ First Bank of Jonesboro
▇▇▇▇▇▇▇ First Bank of South Arkansas
▇▇▇▇▇▇▇ First Bank of ▇▇▇▇▇
▇▇▇▇▇▇▇ First Bank of Northwest Arkansas
37
