EXHIBIT 1.1
1,850,000 Preferred Securities
First Merchants Capital Trust I
8.75% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
April 12, 2002
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
as Co-representatives of the Several Underwriters
named in Schedule I hereto
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
First Merchants Corporation, an Indiana corporation (the "Company") and its
financing subsidiary, First Merchants Capital Trust I, a Delaware business trust
(the "Trust," and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell to the several underwriters listed on
Schedule I hereto (the "Underwriters"), pursuant to the terms of this Agreement,
1,850,000 of the Trust's 8.75% Cumulative Trust Preferred Securities, with a
liquidation amount of $25 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 1,850,000 Preferred Securities to be sold to the Underwriters 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 Underwriters, at
their option, up to an additional 277,500 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." ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated and RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
are acting as co-representatives of the Underwriters and in such capacity are
sometimes herein referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters 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.
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 each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25 per Preferred Security (the
"Purchase Price"), the respective number of Firm Preferred Securities set forth
opposite the name of such Underwriter in Schedule I hereto. Because the proceeds
from the sale of the Firm Preferred Securities will be used to purchase from the
Company its Debentures (as hereinafter defined and as described in the
Prospectus),
the Company shall pay to each Underwriter a commission of $0.9375 per Firm
Preferred Security purchased (the "Firm Preferred Securities Commission"). The
Representatives may by notice to the Company amend Schedule I to add, eliminate
or substitute names set forth therein (other than to eliminate the names of the
Representatives) and to amend the number of Firm Preferred Securities to be
purchased by any firm or corporation listed thereon, provided that the total
number of Firm Preferred Securities listed on Schedule I shall equal 1,850,000.
In addition, on the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Trust hereby grants to the Underwriters, severally and not jointly, an option to
purchase all or any portion of the 277,500 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 Underwriters, severally
and not jointly, all or any portion of the Option Preferred Securities at the
same Purchase Price per share paid for the Firm Preferred Securities. If any
Option Preferred Securities are to be purchased, each Underwriter, severally and
not jointly, agrees to purchase from the Trust that proportion (subject to
adjustment as you may determine to avoid fractional shares) of the number of
Option Preferred Securities to be purchased that the number of Firm Preferred
Securities set forth opposite the name of such Underwriter in Schedule I hereto
(or such number increased as set forth in Section 9 hereof) bears to 1,850,000.
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
Underwriters a commission of $0.9375 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 you giving notice
(confirmed in writing) to the Trust setting forth the number of Option Preferred
Securities as to which the Underwriters are exercising the Option and the time,
date and place for payment and delivery of the Global Securities (as hereafter
defined) 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 you, but shall not be earlier than two nor later than five full
business days after the exercise of such Option, nor in any event prior to the
Closing Date (as hereinafter defined). The Option Closing Date may be the same
as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities Commission
and delivery of the Global Securities (as hereinafter defined) for the Firm
Preferred Securities shall be made at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other place as shall be agreed to by you and the Offerors, at 10:00 a.m., St.
Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), not later than 12:00 p.m. on
the fourth) full business day following the date of this Agreement (the "Closing
Date"), or unless postponed in accordance with the provisions of Section 9. The
Trust shall deliver or cause to be delivered to you for the account of the
Underwriters against payment to or upon the order of the Trust of the Purchase
Price in federal or other immediately available funds, the Firm Preferred
Securities in the form of one or more permanent global securities in definitive
form (the "Global Securities") deposited with the Property Trustee (as
identified below) as custodian for the Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission for such Option Preferred Securities shall be made on the Option
Closing Date at ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated's offices, or at such
other place as the Offerors and you shall determine. Upon delivery, the Option
Preferred Securities shall be in the form of one or more Global Securities
registered in the name of Cede & Co., as nominee of DTC and the Global
2
Securities for such Option Securities shall be delivered to the Property Trustee
as custodian for DTC. Such payments shall be made to an account designated by
the Trust by wire transfer of same day funds, in the amount of the Purchase
Price therefor, against delivery by or on behalf of the Trust to you for the
respective accounts of the several Underwriters of one or more Global
Certificates for the Designated Preferred Securities to be purchased by the
Underwriters.
Time shall be of the essence, and delivery of the Global Securities for the
Designated Preferred Securities at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated Preferred
Securities pursuant to an Amended and Restated Trust Agreement among Wachovia
Trust Company, National Association, as Delaware Trustee and Property Trustee,
the Administrative Trustees named therein (collectively, the "Trustees"), and
the Company, in substantially the form heretofore delivered to the Underwriters,
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 8.75% Subordinated Debentures due 2032 (the
"Debentures") pursuant to an Indenture, to be dated as of April 17, 2002,
between the Company and Wachovia Trust Company, National Association, as
indenture trustee (the "Base Indenture"), and a supplement thereto, to be dated
as of April 17, 2002 (the "Supplemental Indenture," and together with the Base
Indenture and any other amendments or supplements thereto, the "Indenture"), and
(ii) to guarantee certain payments on the Designated Preferred Securities
pursuant to a Preferred Securities Guarantee Agreement between the Company and
Wachovia Trust Company, National Association, as guarantee trustee (the
"Guarantee"), to the extent described therein.
(c) The Company entered into an Agreement of Reorganization and Merger
dated October 14, 2001 (the "Merger Agreement") with Lafayette Bancorporation,
an Indiana corporation ("Lafayette"), pursuant to which, on April 1, 2002 (the
"Merger Effective Date"), Lafayette merged with and into the Company with the
Company continuing as the surviving entity (the "Merger"). As used herein,
unless the context clearly requires otherwise, the term "Company" shall include
Lafayette. The entire proceeds from the sale of the Debentures will be used by
the Company to pay for a portion of the cash consideration to be paid in the
Merger and related costs and expenses. In connection with the Merger, the
Company filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-4 (File No. 333-75750) which constitutes a
proxy statement for each of the Company and Lafayette relating to the approval
of the Merger by the shareholders of each of the Company and Lafayette and which
constitutes a prospectus of the Company relating to the issuance to shareholders
of Lafayette of shares of capital stock of the Company as consideration for the
Merger for those shareholders of Lafayette who are entitled to receive shares of
the Company pursuant to the Merger Agreement. Such registration statement,
including the exhibits, appendices and schedules thereto, if any, at the time it
became effective is in this Agreement called the "Merger Proxy/Registration
Statement." For purposes of this Agreement, all references to the Merger
Proxy/Registration Statement or any amendment or supplement thereto shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering Analysis and Retrieval ("▇▇▇▇▇") system.
(d) As used herein, the following terms shall have the following
meanings:
"Base Prospectus" shall mean the base prospectus referred to in Section
2(ii) hereof contained in the Registration Statement.
3
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or becomes effective.
"Preliminary Prospectus" shall mean any preliminary prospectus supplement
to the Base Prospectus which describes the Designated Preferred Securities and
the offering thereof and is used prior to filing of the Prospectus, together
with the Base Prospectus.
"Prospectus" shall mean the prospectus supplement relating to the
Designated Preferred Securities that was first filed pursuant to Rule 424(b)
after the date hereof, together with the Base Prospectus.
"Registration Statement" shall mean the registration statement referred to
in Section 2(ii) hereof, including exhibits and financial statements, as amended
at the date hereof (or, if not effective at the date hereof, in the form in
which it shall become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the 1933 Act.
"Rule 430A Information" shall mean information with respect to the
Designated Preferred Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 2(ii)
hereof.
Any reference herein to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein which were filed under
the 1934 Act or the 1934 Act Regulations (as hereafter defined) on or before the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the 1934 Act or the 1934 Act Regulations after the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Final Prospectus or the Prospectus, as the case may
be, deemed to be incorporated therein by reference.
2. Representations and Warranties.
The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The reports filed with the Commission by the Company under
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
4
statements therein, in light of the circumstances in which they were made,
not misleading. The reports filed with the Commission by Lafayette under
the 1934 Act and 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 meet the requirements for the use of Form S-3
under the 1933 Act and have prepared and filed with the Commission a
registration statement on Form S-3 (File Numbers 333-75748, ▇▇▇-▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇-▇▇ and 333-75748-03), including a related base prospectus, for
registration under the 1933 Act of the offering and sale of the Designated
Preferred Securities, the Guarantee and up to $70,000,000 aggregate
principal amount of Debentures under the 1933 Act. The Offerors may have
filed one or more amendments to such registration statement, including a
Preliminary Prospectus, each of which has previously been furnished to you,
in each case in 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. The
Offerors shall next file with the Commission one of the following: (1)
after the Effective Date of such registration statement, a final prospectus
supplement relating to the Designated Preferred Securities in accordance
with Rules 430A and 424(b), (2) prior to the Effective Date of such
registration statement, an amendment to such registration statement
(including the form of final prospectus supplement) or (3) a final
prospectus in accordance with Rules 415 and 424(b). In the case of clause
(1), the Offerors have included in such registration statement, as amended
at the Effective Date, all information (other than Rule 430A Information)
required by the 1933 Act and the 1933 Act Regulations to be included in
such registration statement and the Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all other
such required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the date hereof or, to the
extent not completed at the date hereof, shall contain only such specific
additional information and other changes (beyond that contained in the Base
Prospectus and any Preliminary Prospectus) as the Company has advised you,
prior to the date hereof, shall be included or made therein. The
Registration Statement, at the date hereof, meets the requirements set
forth in Rule 415(a)(1)(x). Copies of such registration statement,
including any amendments thereto and any documents incorporated by
reference therein, the Base Prospectus and each Preliminary Prospectus
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 Representatives.
(iii) The documents incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the 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 the 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 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. As of the date that each Preliminary Prospectus was filed with
the Commission or as of the date that the Prospectus and any amendment or
supplement
5
thereto was filed with the Commission (or, if not filed, on the date
provided by the Offerors to the Underwriters in connection with the
offering and sale of the Designated Preferred Securities), as the case may
be, no event has or will have occurred which should have been set forth in
an amendment or supplement to any of the documents incorporated by
reference in the Preliminary Prospectus or the Prospectus which has not
then been set forth in such an amendment or supplement.
(iv) No order preventing or suspending the use of the Prospectus
(or, if the Prospectus is not in existence, any 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 any of the Underwriters expressly
for inclusion in the Prospectus beneath the heading "Underwriting" (such
information referred to herein as the "Underwriters' Information"). As of
the date that each Preliminary Prospectus was filed with the Commission or
as of the date that the Prospectus and any amendment or supplement thereto
was filed with the Commission (or, if not filed, on the date provided by
the Offerors to the Underwriters in connection with the offering and sale
of the Designated Preferred Securities), as the case may be, no event has
or will have occurred which should have been set forth in an amendment or
supplement to any Preliminary Prospectus or the Prospectus which has not
been set forth in any Preliminary Prospectus, the Prospectus or such an
amendment or supplement. Each Preliminary Prospectus and the Prospectus
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to its ▇▇▇▇▇ system, except to the extent
permitted by Regulation S-T.
(v) The Registration Statement has been declared effective under
the 1933 Act, and no post-effective amendment to the Registration Statement
has been filed with the Commission as of the date of this Agreement. No
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or, to
the Company's knowledge, threatened by the Commission. 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; provided, however, that this representation and warranty does
not apply to Underwriters' Information. 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, the 1934 Act and the 1934 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 Underwriters' Information. As of the date that
the
6
Registration Statement was filed with the Commission, no event has or will
have occurred which should have been set forth in an amendment or
supplement to such registration statement which has not then been set forth
in such an amendment or supplement. The Registration Statement will be
identical to the electronically transmitted copy thereof filed with the
Commission pursuant to its ▇▇▇▇▇ system, except to the extent permitted by
Regulation S-T. As of the date hereof 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 Trust Agreement, the
Indenture and the Guarantee did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder.
(vi) The Merger Proxy/Registration Statement has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Merger Proxy/Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or, to
the best knowledge of the Offerors, are contemplated by the Commission, and
any request on the part of the Commission for additional information has
been complied with. The Company is legally permitted, pursuant to the terms
of the 1933 Act, to distribute the shares of its capital stock as required
by the Merger Agreement pursuant to the Merger Proxy/Registration
Statement. At the time the Merger Proxy/Registration Statement was declared
effective under the 1933 Act, on the dates that the Merger
Proxy/Registration Statement was delivered to the respective shareholders
of the Company and/or Lafayette and at the Merger Effective Date, the
Merger Proxy/Registration Statement complied in all material respects with
the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations and did not 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.
(vii)
(A) The Company is duly organized, validly existing and in
good standing under the laws of the State of Indiana, with full corporate
and other power and authority to own, lease and operate its properties and
conduct its business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
each 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 described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary 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 could not have, either individually or in
the aggregate, 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 (or, if the
Prospectus is not in existence, in each Preliminary Prospectus); the Trust
is not a party to or bound by any agreement or instrument other than this
Agreement, the Trust Agreement among the Administrative Trustees, the
Company and Wachovia Trust Company, National Association,
7
dated December 12, 2001 (the "Original Trust Agreement") and the agreements
and instruments contemplated by the Trust Agreement and described in the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
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 (or, if the Prospectus is
not in existence, in each Preliminary Prospectus); the Trust is not a party
to or subject to any action, suit or proceeding of any nature; the Trust
is, and at the Closing Date or any Option Closing Date will be, classified
as a grantor trust for United States federal income tax purposes; the Trust
is not, and at the Closing Date or any Option Closing Date will not be,
classified as an association 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.
(viii) The Company has only the direct and indirect subsidiaries
identified 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. Each
Subsidiary is a corporation, business trust, limited liability company, or
bank duly organized or incorporated, as the case may be, validly existing
and in good standing under the laws of its respective jurisdiction of
organization. Each such Subsidiary has full 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, in each Preliminary Prospectus) and
as currently being conducted. The deposit accounts of Decatur Bank & Trust
Company, First Merchants Bank, National Association, The First National
Bank of Portland, First United Bank, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Bank & Trust Company,
The Madison Community Bank, The ▇▇▇▇▇▇▇▇ County Bank, The Union County
National Bank of Liberty, and Lafayette Bank and Trust Company
(collectively, the "Banks," individually, a "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.
(ix) The Company and each of the Subsidiaries is duly qualified
to transact business as a foreign corporation, bank, limited liability
company or business trust, as the case may be, 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 could, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. All of the issued and outstanding
shares of capital stock or membership interests of the Subsidiaries (A)
have been duly authorized and are validly issued, (B) are fully paid and
nonassessable, and (C), except as set forth on Exhibit A attached hereto
and incorporated herein, are wholly owned, directly or indirectly, by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon voting or transfer, preemptive rights, claim,
equity or other defect.
(x) The capital stock of the Company and the equity securities of
the Trust conform in all material respects to the description thereof
contained in the Prospectus (or, if the Prospectus is not in existence, in
each 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
8
the Prospectus (or, if the Prospectus is not in existence, in each
Preliminary Prospectus), there are no outstanding rights, options or
warrants to acquire any securities of the Offerors or the Subsidiaries, and
there are no outstanding securities convertible into or exchangeable for
any securities of the Offerors or the Subsidiaries 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 articles of incorporation
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. As of the date
set forth therein, the Company had an authorized and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus) and the capitalization of the Company immediately following the
Effective Time will be as set forth in the Prospectus (or, if the
Prospectus is not in existence, each Preliminary Prospectus) under the
caption "Capitalization" (except for subsequent issuances, if any, pursuant
to this Agreement, the Merger Agreement, the Company's dividend
reinvestment plan, pursuant to the Company's acquisitions in January, 2002
of two title insurance agencies, or reservations or employee benefit plans
referred to in the Prospectus (or, if the Prospectus is not in existence,
in each Preliminary Prospectus)).
(xi)
(A) The Trust has all requisite trust 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, in each 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 duly taken. The Designated Preferred Securities, when delivered and
paid for in accordance with this Agreement, will be duly and validly issued
and outstanding, will represent valid fully paid and nonassessable
undivided beneficial interests in the assets of the Trust, will be entitled
to the benefits of the Trust Agreement pertaining to holders of Preferred
Securities, 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, in each 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 legally binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by and/or
subject to bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of
equity, will be in the form contemplated by, and entitled to the benefits
pertaining to holders of Debentures under the Indenture, will conform in
all material respects to the description thereof contained in the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus) and will be owned by the Trust free and clear of any security
interest, mortgage, pledge, lien, encumbrance, restriction upon transfer,
preemptive rights, claim, equity or other defect.
(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 holders of
9
the Preferred Securities, will constitute a valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, or similar laws
affecting the rights of creditors generally and subject to general
principles of equity, and will conform in all material respects to the
description thereof contained in the Prospectus (or, if the Prospectus is
not in existence, in each Preliminary Prospectus).
(D) The Agreement as to Expenses and Liabilities between the
Company and the Trust (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 enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by and/or
subject to bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of
equity, and will conform in all material respects to the description
thereof contained in the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus).
(xii) The Merger Agreement was duly authorized, executed and
delivered by the Company and Lafayette and constituted a valid, legal and
binding agreement of the Company and Lafayette, enforceable against the
Company and Lafayette in accordance with its terms, and conformed in all
material respects to the description thereof contained in the Merger
Proxy/Registration Statement. The shares of the capital stock of the
Company delivered pursuant to the terms of the Merger Agreement were duly
authorized for issuance by the Company pursuant to the Merger Agreement,
were issued, executed and authenticated in accordance with the Merger
Agreement and delivered as provided in the Merger Agreement, and are
validly issued and fully paid and non-assessable and conform in all
material respects to the description thereof in the Merger
Proxy/Registration Statement. The issuance of such shares of capital stock
was not subject to preemptive or other similar rights. With the exception
of the delivery of the Merger consideration, all conditions to the
obligations of each of the Company and Lafayette to consummate the Merger
have been satisfied or duly waived and the net proceeds from the sale of
the Designated Preferred Securities and the Company's cash on hand will be
sufficient to pay the cash consideration payable to Lafayette shareholders
pursuant to the Merger and related fees and expenses and to fund ordinary
business operations consistent with past practices.
(xiii) The Offerors and the Subsidiaries have complied in all
material respects with all foreign, federal, state and local statutes,
regulations, ordinances and rules as now in effect and applicable to the
ownership and operation of their properties or the conduct of their
businesses as described in and contemplated by the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, in each
Preliminary Prospectus) and as currently being conducted. Neither the
Company nor any non-banking Subsidiary engages directly or indirectly in
any activity prohibited by the Board of Governors of the Federal Reserve
System (the "FRB") or the BHC Act or the regulations promulgated
thereunder.
(xiv) 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, in each Preliminary Prospectus) and as
currently being conducted. All such Permits are in full force and effect
and each of the Offerors and the Subsidiaries are in all material respects
complying
10
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. 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.
(xv) Neither of the Offerors nor any of the Subsidiaries are in
breach or violation of their corporate charter, by-laws or other governing
documents (including without limitation, the Original Trust Agreement) in
any material respect. Neither of the Offerors nor any of the Subsidiaries
is, 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 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, individually or in the aggregate with
other breaches, violations or defaults, have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries on a
consolidated basis, 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, or (B) 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, individually or in the aggregate with
other breaches, violations or defaults, have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries on a
consolidated basis.
(xvi) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this Agreement,
the Merger Agreement, the Trust Agreement, the Guarantee, the Indenture,
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in each Preliminary Prospectus) (including, without
limitation, the issuance and sale of the Designated Preferred Securities
and the use of proceeds from the sale of the Designated Preferred
Securities as described in the Prospectus under the caption "Use of
Proceeds") 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 (A)
the charter or by-laws of the Company or the Subsidiaries, (B) 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 (C) 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 could have, either individually 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
11
connection with the transactions contemplated by this Agreement, the Merger
Agreement, the Trust Agreement, the Indenture, the Guarantee, the Expense
Agreement, the Registration Statement and the Prospectus (or any
Preliminary Prospectus), except such as have been obtained under the 1933
Act and the Trust Indenture Act and from the Nasdaq 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 Underwriters.
(xvii) The Company has all requisite power and authority and the
Trust has all requisite trust power and authority to enter into this
Agreement and this Agreement has been duly and validly authorized, 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
bankruptcy, insolvency, reorganization or similar laws affecting the rights
of creditors generally and subject to general principles of equity 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 bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity 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.
(xviii) 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, in each 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 and existing leases, enforceable against the
parties thereto, 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 material leases.
(xix) BKD LLP, who have certified certain of the consolidated
financial statements of the Company and the Subsidiaries including the
notes thereto, included or incorporated by reference 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.
(xx) The consolidated financial statements including the notes
thereto, included or incorporated by reference in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus) with respect to the Company and the
Subsidiaries comply with the 1933 Act and the 1933 Act Regulations and
present fairly in all material respects the consolidated financial position
of the Company and the Subsidiaries as of
12
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
consolidated financial statements including the notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, in each Preliminary Prospectus)
with respect to Lafayette and its subsidiaries comply with the 1933 Act and
the 1933 Act Regulations and present fairly in all material respects the
consolidated financial position of Lafayette and its subsidiaries as of the
dates indicated and the consolidated results of operations, cash flows and
shareholders' equity of Lafayette and its subsidiaries for the periods
specified and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The selected
consolidated financial data concerning the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus) comply in
all material respects with the 1933 Act and the 1933 Act Regulations,
present fairly the information set forth therein, have been derived from
the financial statements or operating records of the Company and have been
compiled on a basis consistent with that of the consolidated financial
statements of the Company and the Subsidiaries in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus). The selected consolidated financial data
concerning Lafayette and its subsidiaries included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus) comply in all material respects with the 1933
Act and the 1933 Act Regulations, present fairly the information set forth
therein, have been derived from the financial statements or operating
records of Lafayette and have been compiled on a basis consistent with that
of the consolidated financial statements of Lafayette and its subsidiaries
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, in each Preliminary Prospectus). The summary pro forma
consolidated financial information and the pro forma combined consolidated
financial information included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus) present fairly, in all material respects, the information
relating to the Company, and the information relating to Lafayette, shown
therein, and have been compiled on a basis consistent with that of the
audited consolidated financial statements of the Company and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein. The other financial, statistical and
numerical information included in the Registration Statement and the
Prospectus (or such Preliminary Prospectus) is accurate in all material
respects, complies in all material respects with the 1933 Act and the 1933
Act Regulations, has been derived from the financial statements or
operating records of the Company or Lafayette, as the case may be, presents
fairly the information shown therein, and to the extent applicable has 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, if the Prospectus is not in existence, in each
Preliminary Prospectus).
(xxi) 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, in each Preliminary Prospectus), except as otherwise
stated therein:
(A) neither of the Offerors nor any of the Subsidiaries has
sustained any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree which is
material, individually or in the aggregate, to the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis;
13
(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, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(C) neither of the Offerors nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or entered
into any material transactions, other than in the ordinary course of
business, which are material, individually or in the aggregate, to the
condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis;
(D) neither of the Offerors has declared or paid any
dividend, and neither of the Offerors nor any of the Subsidiaries has
become delinquent in the payment of principal or interest on any
outstanding borrowings;
(E) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital leases or,
other than in the ordinary course of business, short-term borrowings of the
Offerors or the Subsidiaries; and
(F) there has not occurred any other event and there has
arisen no set of circumstances required by the 1933 Act or the 1933 Act
Regulations to be disclosed in the Registration Statement or the Prospectus
which has not been so set forth in the Registration Statement or the
Prospectus as fairly and accurately summarized therein.
(xxii) Since the respective dates as of which information is
given in the Registration Statement, the Prospectus (or, if the Prospectus
is not in existence, in each Preliminary Prospectus) and the Merger
Proxy/Registration Statement, there has not been any material adverse
change in the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operation of Lafayette and Lafayette Bank
on a consolidated basis, whether or not arising in the ordinary course of
business.
(xxiii) 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, individually or in the aggregate with other unfavorable decisions,
rulings or findings, 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, if the Prospectus is not in existence, in each Preliminary
Prospectus) and is not so disclosed.
(xxiv) 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 into the Registration Statement, or that are required to be
summarized in the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus) that are not so summarized.
14
(xxv) 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 in violation of the
Commission's rules and regulations, including, but not limited to,
Regulation M, and neither of the Offerors is aware of any such action taken
or to be taken by any affiliate of the Offerors.
(xxvi) 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, in each Preliminary Prospectus) and neither
the Company nor the Subsidiaries have received any notice of infringement
or conflict with asserted rights of others with respect to any patents,
copyrights, trademarks, service marks, trade names or other rights which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis, and the Offerors do not know of any basis for any such
infringement or conflict which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xxvii) No labor dispute involving the Company or the
Subsidiaries exists or, to the knowledge of the Offerors, is imminent which
could, individually or in the aggregate with other disputes, have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis or which is required
to be disclosed in the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus). Neither the Company nor any of
the Subsidiaries has received notice of any existing or threatened labor
dispute by the employees of any of its principal suppliers, customers or
contractors which could, individually or in the aggregate with other
disputes, have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis.
(xxviii) 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
could not, individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries on a
consolidated basis. 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, could, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxix) Each of the contracts, agreements and instruments material
to the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and its Subsidiaries on a
consolidated basis, or listed, described, or attached as an exhibit to the
Company's and Lafayette's respective Annual Reports on Form 10-K for the
year
15
ended December 31, 2001 as filed with the Commission is in full force and
effect and is the legal, valid and binding agreement of the Offerors or the
Subsidiaries and the other parties thereto, enforceable in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity, except
where the cancellation, termination or unenforceability could not,
individually or in the aggregate with other cancellations, terminations or
unenforceable contracts, agreements and instruments, have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company and
the Subsidiaries on a consolidated basis. Neither the Company nor any
Subsidiary is (with or without notice or lapse of time or both) in breach
or default in any material respect under any such contacts, agreements or
instruments referred to in the preceding sentence (or upon consummation of
the transactions contemplated by this Agreement will be in breach or
default in any material respect thereunder) and, 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.
(xxx) No relationship, direct or indirect, exists between or
among the Company or the Subsidiaries, on the one hand, and the directors,
officers, trustees, shareholders, customers or suppliers of the Company or
the Subsidiaries, on the other hand, which is required to be described in
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in each Preliminary Prospectus) which is not adequately
described therein.
(xxxi) 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, in each Preliminary
Prospectus).
(xxxii) The Designated Preferred Securities have been approved
for quotation on the Nasdaq National Market subject to official notice of
issuance.
(xxxiii) Except as described in the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus), there are
no contractual encumbrances or restrictions or material legal restrictions
required to be described therein, on the ability of the Subsidiaries (A) to
pay dividends or make any other distributions on its capital stock or to
pay any indebtedness owed to the Company, (B) to make any loans or advances
to, or investments in, the Company or (C) to transfer any of its property
or assets to the Company.
(xxxiv) Neither of the Offerors is an "investment company," an
entity "controlled" by an "investment company" or an "investment adviser"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act") or the Investment Advisers Act of 1940, as
amended (the "Investment Advisers Act").
(xxxv) The Offerors have not distributed and will not distribute
prior to the Closing Date or, if applicable, the Option 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 Representatives.
(xxxvi) The activities of the Offerors and the Subsidiaries are
permitted under applicable federal and state banking laws and regulations.
The Company has all necessary
16
approvals, including the approval of the Office of the Comptroller of the
Currency (the "OCC") , the FDIC, the Indiana Department of Financial
Institutions (the "DFI") and the FRB, as applicable, to own the capital
stock of the Subsidiaries. Neither the Company nor any of the Subsidiaries
is a party or subject to any agreement or memorandum with, or directive or
other order issued by, the FRB, the OCC, the FDIC, the DFI or other
regulatory authority having jurisdiction over it (each, a "Regulator," and
collectively, the "Regulators"), which imposes any restrictions or
requirements not generally applicable to entities of the same type as the
Company and the Subsidiaries. Neither the Company nor any Subsidiary is
subject to any order or other directive from any Regulator to make any
material change in the method of conducting their respective businesses,
and no such directive is pending or threatened by such Regulators.
(xxxvii) The Banks and the other Subsidiaries have properly
administered all accounts for which they act as a fiduciary, including but
not limited to accounts for which they serve as a trustee, agent,
custodian, personal representative, guardian, conservator or investment
advisor, in accordance with the terms of the governing documents and
applicable state and federal law and regulation and common law, except
where the failure to be in compliance could not, individually or in the
aggregate, have a material adverse effect upon the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis. None of the
Banks or other Subsidiaries nor any of their directors, officers or
employees has committed any material breach of trust with respect to any
such fiduciary account, and the accountings for each such fiduciary account
are true and correct in all material respects and accurately reflect the
assets of such fiduciary account in all material respects.
(xxxviii)Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred any
liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated thereby.
(xxxix) No report or application filed by the Company or any of
its Subsidiaries with the FRB, the OCC, the FDIC, the DFI or any other
Regulator, as of the date it was filed or amended, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading when made or failed to comply in all material respects with the
applicable requirements of the FRB, the OCC, the FDIC, the DFI or such
other Regulator, as the case may be.
(xl) Based upon current guidelines of the FRB, proceeds from the
sale of the Debentures will constitute "Tier 1" capital (as defined in 12
C.F.R. Part 225), subject to applicable regulatory restrictions on the
amount thereof that can be included in Tier 1 capital.
(xli) None of the Offerors, the Subsidiaries or, to the best
knowledge of the Offerors, any other person associated with or acting on
behalf of the Offerors or any of the Subsidiaries, including, without
limitation, any director, officer, agent, or employee of any of the
Subsidiaries or the Company has, directly or indirectly, while acting on
behalf of such Offeror or Subsidiary (i) used any corporate funds for
unlawful contributions, gifts, entertainment, or other unlawful expenses
relating to political activity; (ii) made any unlawful contribution to any
candidate for foreign or domestic office, or to any foreign or domestic
government officials or employees or other person charged with similar
public or quasi-public duties, other than payments required or permitted by
the laws of the United States or any jurisdiction thereof or to foreign or
domestic political parties or campaigns from corporate funds, or failed to
disclose fully any contribution in violation of law; (iii) violated any
provision of the Foreign Corrupt Practices
17
Act of 1977, as amended; or (iv) made any other payment of funds for either
or both of the Offerors or a Subsidiary or retained any funds which
constitute a violation of any law, rule or regulation or which was or is
required to be disclosed in the Registration Statement or the Prospectus
pursuant to the requirements of the 1933 Act or the 1933 Act Regulations.
(xlii) Neither the Company nor any Subsidiary has any liability
under any "pension plan," as defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). The employee benefit plans,
including employee welfare benefit plans, of the Company and each of the
Subsidiaries (the "Employee Plans") have been operated in material
compliance with the applicable provisions of ERISA, the Internal Revenue
Code of 1986, as amended (the "Code"), all regulations, rulings and
announcements promulgated or issued thereunder and all other applicable
governmental laws and regulations (except to the extent such noncompliance
could not, individually or in the aggregate, have a material adverse effect
upon the condition (financial or otherwise) earnings, affairs, business,
prospects or results of operations of the Offerors or the Subsidiaries on a
consolidated basis). No reportable event under Section 4043(c) of ERISA has
occurred with respect to any Employee Plan of the Company or any of the
Subsidiaries for which the reporting requirements have not been waived by
the Pension Benefit Guaranty Corporation. No prohibited transaction under
Section 406 of ERISA, for which an exemption does not apply, has occurred
with respect to any Employee Plan of the Company or any of the
Subsidiaries. There are no pending or, to the knowledge of the Offerors,
threatened, claims by or on behalf of any Employee Plan, by any employee or
beneficiary covered under any such Employee Plan or by any governmental
authority or otherwise involving such Employee Plans or any of their
respective fiduciaries (other than for routine claims for benefits). All
Employee Plans that are group health plans have been operated in material
compliance with the group health plan continuation coverage requirements of
Section 4980B of the Code.
(xliii) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general or specific authorizations, (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization, and (D) the
recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
The books, records and accounts and systems of internal accounting controls
of the Company and its Subsidiaries comply in all material respects with
the requirements of Section 13(b)(2) of the 1934 Act.
(xliv) Except as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus), there is no factual basis for any action, suit or other
proceeding involving the Company or the Subsidiaries or any of their
material assets for any failure of the Company or any of the Subsidiaries,
or any predecessor thereof, to comply with any requirements of federal,
state or local regulation relating to air, water, solid waste management,
hazardous or toxic substances, or the protection of health or the
environment; except where such action, suit or other proceeding could not,
individually or in the aggregate with other actions, suits or proceedings,
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis. Except as described
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, in each Preliminary Prospectus) or as could not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis, none of the property owned or leased
18
by the Company or any of the Subsidiaries or their predecessors is
contaminated with any waste or hazardous substances, and neither the
Company nor any of the Subsidiaries may be deemed an "owner or operator" of
a "facility" or "vessel" which owns, possesses, transports, generates or
disposes of a "hazardous substance" as those terms are defined in ss.9601
of the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. ss.9601 et seq.
(xlv) The Company and the Subsidiaries maintain insurance
covering in all material respects their properties, personnel and business.
Such insurance insures against such losses and risks as, in the judgment of
the executive officers of the Company, are adequate to protect in all
material respects the Company and the Subsidiaries and their businesses.
Neither the Company nor any of the Subsidiaries has received notice from
any insurer or agent of such insurer that substantial capital improvements
or other expenditures shall have to be made in order to continue such
insurance. All such insurance is outstanding and duly in force on the date
hereof and shall be outstanding and duly in force on the Closing Date and,
if applicable, the Option Closing Date, with such exceptions as would not
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xlvi) Other than the Merger, neither the Company nor any
Subsidiary has any agreement or understanding with any person (A)
concerning the future acquisition by the Company or the Banks of a
controlling interest in any entity or (B) concerning the future acquisition
by any person of a controlling interest in the Company or any Subsidiary,
in either case that is required by the 1933 Act or the 1933 Act Regulations
to be disclosed by the Company that is not disclosed in the Prospectus.
3. Offering by the Underwriters.
After the Registration Statement becomes effective or, if the Registration
Statement is already effective, after this Agreement becomes effective, the
Underwriters propose to offer the Firm Preferred Securities for sale to the
public upon the terms and conditions set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering price
and change the other selling terms, provided the proceeds to the Trust shall not
be reduced as a result of such reduction or change. Because the NASD is expected
to view the Preferred Securities as interests in a direct participation program,
the offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's conduct rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters 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 Underwriters 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 Underwriters as
follows:
(a) The Offerors shall 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
19
with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule
430A, a post-effective amendment to the Registration Statement (including the
Prospectus) containing all information so omitted and will provide evidence
satisfactory to the Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice
in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus
has been filed;
(ii) of the receipt of any comments or requests from the
Commission;
(iii) of any request of the Commission to amend or supplement the
Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated 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 Underwriters, from time to time
without charge, as soon as available, as many copies as the Underwriters may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) the Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply 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 you shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings thereof or to
which you or counsel for the Underwriters shall reasonably object. If it is
necessary, in the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel, to amend or supplement the Registration Statement or the
Prospectus in connection with the distribution of the Designated 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 Underwriters or counsel for the Underwriters does
not reasonably object), and furnishing to you such number of copies as you may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or the Prospectus, as the case may be
(in form and substance satisfactory to you and counsel for the Underwriters). If
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus to correct an untrue statement of a material fact or
to include a material fact necessary to make
20
the statements therein, in light of the circumstances under which they were
made, not misleading, or if for any reason it is necessary at any time to amend
or supplement the Prospectus to comply with the 1933 Act and the 1933 Act
Regulations, the Offerors shall, subject to the second sentence of this
subsection (d), forthwith at their cost and expense amend or supplement the
Prospectus by preparing and filing with the Commission, and furnishing to you,
such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory to you and counsel for the Underwriters) so that, as so
amended or supplemented, the Prospectus shall not contain an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) The Offerors shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
you may reasonably request and shall continue such qualifications in effect so
long as may be advisable for distribution of the Designated 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 you 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 use their best efforts to permit the Preferred
Securities to be eligible for clearance and settlement through the facilities of
DTC.
(g) 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 you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net 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."
(i) For five years from the Effective Date, the Offerors shall furnish
to the Representatives 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 National Market or other self-regulatory organization and
such other documents, reports and information concerning the business and
financial conditions of the Offerors as the Representatives may reasonably
request, other than such documents, reports and information for which the
Offerors has the legal obligation not to reveal to the Representatives.
(j) For a period of 90 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, any other beneficial
interests in the assets of the Trust or any securities of the Trust or the
Company that are substantially similar to the Designated Preferred Securities
(other than the Common Securities of the Trust to be issued to the Company),
including any guarantee of such beneficial interests or substantially
21
similar securities, or securities convertible into or exchangeable for or that
represent the right to receive any such beneficial interest or substantially
similar securities, except for the registration of the Designated Preferred
Securities and the sales to the Underwriters pursuant to this Agreement, without
the prior written consent of the Representatives.
(k) The Offerors shall use their best efforts to cause the Designated
Preferred Securities to become quoted on the Nasdaq National Market, or in lieu
thereof a national securities exchange, and to remain so quoted, 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 shall use its best efforts
to have the Debentures promptly listed on the Nasdaq National Market or other
organization on which the Designated Preferred Securities are then listed, and
to have the Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters 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, or take or refrain from taking any
action which will cause or result in any material adverse change in the
financial position, capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the Offerors and
the Subsidiaries on a consolidated basis.
(m) Except as described in the Prospectus, the Offerors shall not, for
a period of 180 days after the date hereof, without the prior written consent of
the Representatives, purchase, redeem or call for redemption, or prepay or give
notice of prepayment (or announce any redemption or call for redemption, or any
repayment or notice of prepayment) of the Offerors' securities; provided,
however, that this shall not apply to repurchases by the Company of its common
stock.
(n) The Offerors shall not take, directly or indirectly, any action
designed to result in or which constitutes or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any security
of the Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the Offerors.
(o) 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 without your prior consent.
(p) The Offerors shall comply with all registration, filing and
reporting requirements of the 1934 Act for so long as the Preferred Securities
or the Debentures shall remain outstanding.
5. Payment of Expenses.
Whether or not this Agreement is terminated or the sale of the Designated
Preferred Securities to the Underwriters is consummated, the Company covenants
and agrees that it will pay or cause to be paid (directly or by reimbursement)
all costs and expenses incident to the performance of the obligations of the
Offerors under this Agreement, including:
22
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, each Preliminary Prospectus, the Registration
Statement and the Prospectus and any amendments or supplements thereto, and the
printing, delivery and shipping of this Agreement and any other underwriting
documents (including, without limitation, selected dealers agreements);
(b) all fees, expenses and disbursements of the 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 you may
request, including all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith.
(d) all fees and expenses incurred in connection with filings made
with the NASD and DTC;
(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 National Market;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture, the Guarantee and the Expense Agreement;
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 termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
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 for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
23
6. Conditions of the Underwriters' Obligations.
The obligations of the Underwriters 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 your sole discretion, to the accuracy of the representations and
warranties and compliance with the 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 you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Representatives, shall be contemplated
by the Commission or any state authority. Any request on the part of the
Commission or any state authority for additional information (to be included in
the Registration Statement or Prospectus or otherwise) shall have been disclosed
to you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of a fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading. (c)
All corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Trust Agreement, and the Designated
Preferred Securities, and the authorization and form of the Registration
Statement and the 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 shall be satisfactory
in all material respects to counsel for the Underwriters, 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) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP, counsel for the Offerors, shall have
furnished to you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing under the laws of the State of Indiana, and is duly registered as
a bank holding company under the BHC Act. To the best of such counsel's
knowledge, the entities listed on Exhibit A are the only subsidiaries,
direct or indirect, of the Company. Each of the Subsidiaries is duly
incorporated or organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation
24
or organization, as the case may be. Each of the Company and the
Subsidiaries has full power (corporate or otherwise) and authority to own
or lease its properties and to conduct its business as such business is
currently conducted in all material respects. Each of the Company and the
Subsidiaries is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result, individually or in the
aggregate, in a material adverse effect on the condition (financial or
otherwise), business, prospects or results of operations of the Company and
the Subsidiaries on a consolidated basis. To the best of such counsel's
knowledge, except as set forth on Exhibit A to the Agreement, all
outstanding shares of capital stock of the Subsidiaries are owned, directly
or indirectly, by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, and none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
subsidiary, 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. For purposes of this opinion, the term
"Subsidiary" shall not include Independent Bankers' Life Reinsurance
Company of Indiana, Ltd.
(ii) The 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. The authorized, issued and outstanding
capital stock of the Company is as set forth under the caption
"Capitalization" in the Prospectus (except for subsequent issuances, if
any, pursuant to the Underwriting Agreement, the Merger Agreement, the
Company's acquisitions in January, 2002 of two title insurance agencies, or
pursuant to reservations, agreements or employee benefit plans or programs
referred to in the Prospectus or pursuant to the Company's dividend
reinvestment plan). The capital stock of the Company has been duly
authorized and validly issued, and is fully paid and nonassesable. 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. 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 or pursuant to the Company's dividend reinvestment plan, and
none of the outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(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 and paid for 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 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 equity securities of the Offerors pursuant to the corporate
charter, by-laws or other governing documents (including without
limitation, the Trust Agreement) of the Offerors, or, to the best of such
counsel's knowledge, any agreement or other instrument to which either
Offeror is a party or by which either Offeror may be bound.
25
(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 against the Company
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, and
delivered by the Company 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. The holders of
the Debentures are entitled to the benefits of the Indenture pertaining to
holders of Debentures.
(vii) Each of the Expense Agreement and the Merger Agreement has
been duly authorized, executed and delivered by the Company, and is a valid
and legally binding obligation of the Company enforceable against the
Company 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). To the best of such counsel's knowledge,
no breach or default by the Company or any Subsidiary exists (nor has any
event occurred which with notice, lapse of time, or both, would result in a
breach of, or constitute a default under) in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license or any other
agreement or instrument to which either the Company or any Subsidiary is a
party or by which any of them or any of their respective properties may be
bound. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement, the Merger
Agreement, the Trust Agreement, the Indenture, the Guarantee or the other
agreements contemplated hereby or thereby 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 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, by-laws or governing
document (including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or any material contract, indenture,
mortgage, deed 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,
26
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.
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors 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 Company nor any of the Subsidiaries is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Offerors.
(x) To the best of such counsel's knowledge, no action, suit or
proceeding at law or in equity is pending or threatened 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, 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 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 the
Nasdaq National Market with respect to listing matters, 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 Underwriters. All governmental and regulatory
authorizations, approvals, consents, orders and filings, registrations and
qualifications required in order to consummate the Merger have been
obtained or otherwise received.
(xii) Each of the Registration Statement, the Prospectus and the
Merger Proxy/Registration Statement and any amendments or supplements
thereto (other than the exhibits, financial statements or other financial
data included therein or omitted therefrom and Underwriters' Information,
as to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations as of their respective dates of effectiveness or issuance. The
Company's Annual Report on Form 10-K and Current Report on Form 8-K
incorporated by reference in the Registration Statement and the Prospectus
(other than the exhibits, financial statements or other financial data
included therein or omitted therefrom, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations as of their
respective dates of effectiveness or filing.
(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, Merger Proxy/Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement or Merger Proxy/Registration Statement that are not so disclosed
or filed.
27
(xiv) The statements under the captions "Risk Factors",
"Description of the Trust", "Description of the Preferred Securities,"
"Description of the Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Debentures and the
Guarantee," "Certain Federal Income Tax Consequences," and "ERISA
Considerations" in the Prospectus and the statements under the captions
"Description of the Trusts", "Description of the Preferred Securities,"
"Description of the Debentures," "Description of the Guarantees,"
"Relationship Among the Preferred Securities, the Debentures and the
Guarantee," in the Base Prospectus and the statements under the captions
"Regulation and Supervision" in "Item 1. Business" and "Item 3. Legal
Proceedings" in the Company's Annual Report on Form 10-K for the year ended
December 31, 2001, incorporated by reference into the Prospectus, insofar
as such statements constitute a description of legal or regulatory matters,
documents or instruments referred to therein, are accurate descriptions of
the matters purported to be summarized therein in all material respects and
fairly present the information called for with respect to such legal or
regulatory matters, documents and instruments.
(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 disclosed in the Prospectus, there are no
material legal restrictions or, to the best knowledge of such counsel,
contractual encumbrances or restrictions required to be disclosed on the
ability of the Subsidiaries (A) to pay dividends or make any other
distributions on its capital stock or to pay indebtedness owed to the
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, the Offerors and
the Subsidiaries possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all Permits,
consents, licenses, franchises and governmental and regulatory
authorizations ("Authorizations") required to conduct their business as
currently conducted and which 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 Authorizations are valid and in full force and effect,
and, to the best of such counsel's knowledge, no action, suit or proceeding
is pending or threatened which may lead to the revocation, termination,
suspension or non-renewal of any such Authorization, except in those
instances where the loss thereof or non-compliance therewith would not
materially impair the ability of the Offerors or the Subsidiaries to
conduct their businesses and 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.
(xviii) Neither the Company nor the Trust is and, after giving
effect to the offering and sale of the Designated Preferred Securities and
the application of the proceeds thereof as described in the Prospectus,
neither the Company nor the Trust will be, an "investment company," an
entity "controlled" by an "investment company" or an "investment adviser"
as defined in the Investment Company Act and the Investment Advisers Act.
28
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) and
(xvii) hereof, and certificates of public officials. In giving such opinion,
such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special
Delaware counsel to the Offerors as to certain matters relating to the Trust and
the Designated Preferred Securities which are governed by Delaware law.
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 you and your counsel, at which
conferences such counsel made inquiries of such officers, representatives and
accountants and discussed in detail the contents of the Registration Statement,
the Prospectus and the Merger Proxy/Registration Statement and the documents
incorporated therein by reference and such counsel has no reason to believe (A)
that the Registration Statement and the Merger Proxy/Registration Statement or
any amendment thereto (except for the financial statements and related schedules
included therein or omitted therefrom or Underwriters' Information, as to which
such counsel need express no opinion), at the time the Registration Statement
and the Merger Proxy/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 not misleading or (B) that the Prospectus or any amendment or
supplement thereto and the documents incorporated therein by reference (except
for the financial statements and related schedules included therein or omitted
therefrom or Underwriters' Information, as to which such counsel need express no
opinion), at the time the Registration Statement became effective (or, if the
term "Prospectus" refers to the prospectus first filed pursuant to Rule 424(b)
of the 1933 Act Regulations, at the time the Prospectus was issued), at the time
any such amended or supplemented Prospectus was issued, at the Closing Date and,
if applicable, the Option Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or (C)
that there is any amendment to the Registration Statement and the Merger
Proxy/Registration Statement required to be filed that has not already been
filed.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the
Offerors, shall have furnished to you 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 has all requisite trust power to enter into and
perform its obligations under this Agreement. The Trust Agreement is a
legal, valid and binding agreement of the Company, as sponsor, 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, this Agreement and its execution and delivery 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.
29
(iv) The issuance, sale and delivery of the Designated Preferred
Securities in accordance with the Trust Agreement have been duly authorized
by all necessary action of the Trust. The Designated Preferred Securities
have been duly and validly 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 certificate 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 or other similar 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, 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) ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇., counsel for the Underwriters, shall
have furnished you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, with respect to the sufficiency of all
corporate procedures and other legal matters relating to this Agreement, the
validity of the Designated Preferred Securities, the Registration Statement, the
Prospectus and such other related matters as you may reasonably request and
there shall have been furnished to such counsel such documents and other
information as they may request to enable them to pass on such matters. In
giving such opinion, ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇. may rely as to matters of fact
upon statements and certifications of officers of the 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
LLP and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from BKD LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ and Company LLP letters, dated the date of this
Agreement and the Closing Date (and, if applicable, the Option Closing Date),
respectively, in form and substance satisfactory to the Representatives,
confirming that, with respect to BKD LLP, they are independent public
accountants with respect to the Company and the Subsidiaries, within the meaning
of the 1933 Act and the 1933 Act Regulations and, with respect to ▇▇▇▇▇, ▇▇▇▇▇▇
and Company, LLP, they are independent public accountants with respect to
Lafayette and
30
its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations, and each stating in effect that:
(i) In their opinion, the consolidated financial statements of
the Company or Lafayette, as the case may be, audited by them and included
or incorporated by reference in the Registration Statement comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act, the 1934 Act, the 1933 Act Regulations and the 1934 Act
Regulations.
(ii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company or
Lafayette, as the case may be, inspection of the minute books of the
Company or Lafayette, as the case may be, since the date of the latest
audited financial statements of the Company or Lafayette, as the case may
be, included or incorporated by reference in the Registration Statement,
inquiries of officials of the Company or Lafayette, as the case may be,
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 or Lafayette, as the case may be, any increase
in the consolidated debt of the Company or Lafayette, as the case may be,
or any decreases in consolidated total assets or consolidated shareholders'
equity of the Company or Lafayette, as the case may be, or any changes,
decreases or increases in other items specified by the Representatives, in
each case as compared with amounts shown in the latest consolidated
statement of financial condition of the Company or Lafayette, as the case
may be, included or incorporated by reference 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 consolidated
financial statements of the Company or Lafayette, as the case may be,
included or incorporated by reference 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 Lafayette, as the case may be, or in the per share amount of net
income of the Company or Lafayette, as the case may be, or any changes,
decreases or increases in other items specified by the Representatives as
compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representatives,
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.
(iii) In addition to the audit referred to in their report
included or incorporated by reference in the Registration Statement and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraph (ii) 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
Representatives which are derived from the general accounting records and
consolidated financial statements of the Company or Lafayette, as the case
may be, which appear in the Registration Statement and the documents
incorporated by reference therein specified by the Representatives, and
have compared such amounts, percentages and financial information
31
with the accounting records and the material derived from such records and
consolidated financial statements of the Company or Lafayette, as the case
may be, have found them to be in agreement.
(iv) With respect to the pro forma financial information which
appear in the Registration Statement and the documents incorporated by
reference therein, BKD LLP shall provide the information contemplated in,
and comment upon the matters described in, Example D "Comments on Pro Forma
Information" included in SAS No. 72 "Letters for Underwriters and Certain
Other Requesting Parties."
In the event that the letter to be delivered on the date hereof, on the
Closing Date (and, if applicable, any Option Closing Date) referred to above set
forth any such changes, decreases or increases as specified in clauses (ii)(A)
or (ii)(B) above, or any exceptions from such agreement specified in clause
(iii) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
clause (ii)(A) above as compared with the amounts shown in the latest
consolidated statement of financial condition of the Company or Lafayette, as
the case may be, included or incorporated by reference in the Registration
Statement, (y) reflect a material adverse change in the items specified in
clause (ii)(B) above as compared with the corresponding periods of the prior
year or other period specified by the Representatives, or (z) reflect a material
adverse change in items specified in clause (iii) above from the amounts shown
in the Preliminary Prospectus distributed by the Underwriters in connection with
the offering contemplated hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the chief executive officer and the
chief financial and accounting officer of the Company, which certificates shall
be deemed to be made on behalf of the Company, dated as of the Closing Date and,
if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2 hereof are accurate as of the
Closing Date and, if applicable, the Option Closing Date, and that each of the
Offerors has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to such Closing Date and, if
applicable, the Option 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 Company
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 case
of the Prospectus, in the light of the circumstances under which they were made)
not misleading; and (v) covering such other matters as you may reasonably
request. The officers' certificate of the Company shall further state that no
stop order affecting the Registration Statement is in effect or, to their
knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option Closing Date,
you 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
32
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 described in 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.
(j) On the Closing Date, all conditions precedent under each of the
Merger Agreement, the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement, other than delivery of the Merger consideration, shall have
been satisfied or duly waived, and you shall have received copies of all
documentation required to evidence same.
(k) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the Underwriters'
participation in such offering.
(l) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have been
fulfilled when and as required by this Agreement, this Agreement and all of the
Underwriters' obligations hereunder may be terminated by you on notice to the
Company at, or at any time before, the Closing Date or the Option Closing Date,
as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. Indemnification and Contribution.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each of its directors, officers and agents, and each
person, if any, who controls any Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorneys fees and expenses), joint or
several, arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact made by or on behalf of the Company or the Trust
contained in Section 2 of this Agreement (or any certificate delivered by or on
behalf of the Company or the Trust pursuant to Sections 6(h), 6(i) and 6(l)
hereto) or in the registration statement as originally filed or the Registration
Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus or
the Merger Proxy/Registration Statement, or in any amendment or supplement
thereto, (ii) any omission or alleged omission to state a material fact in the
registration statement as originally filed or the Registration Statement, the
Base Prospectus, any Preliminary Prospectus, the Prospectus or the Merger
Proxy/Registration Statement, or in any amendment or supplement thereto,
required to be stated therein or necessary to make the statements therein not
misleading, and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and attorneys fees), joint
or several, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Base Prospectus, any Preliminary
Prospectus, the Prospectus or the Merger Proxy/Registration Statement, or in any
amendment or supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a
33
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (iii) the enforcement of this indemnification provision or the
contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable legal or other expenses as incurred, but in
no event less frequently than 30 days after each invoice is submitted, incurred
by them in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the 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 Underwriters'
Information. The foregoing indemnity agreement is in addition to any liability
the Company or the Trust may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each Offeror, each of the Company's directors, each of the
Company's officers who signed the Registration Statement, each of the
Administrative Trustees of the Trust 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 each Underwriter, but only with
respect to the Underwriters' Information. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to any
such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified party(ies) and controlling persons, which firm shall be
designated in writing by the indemnified party(ies) (and, if such indemnified
parties are Underwriters, by you, as Representatives). Each indemnified party
and each controlling person, as a condition of such indemnity, shall use
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. The indemnifying party shall not be liable for any
settlement of any such action effected without its written consent, but if there
shall be a final judgment for the plaintiff in
34
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
Underwriters 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 Underwriters 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 considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriters 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.
35
For purposes of this paragraph (d), each person who controls an Underwriter
within the meaning of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each person who controls 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 Underwriters under this paragraph (d) shall be in addition to
any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 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 any Underwriter or any person
controlling an 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 any Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 7.
(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.
You shall have the right to terminate this Agreement at any time at or
prior to the Closing Date or, with respect to the Underwriters' obligation to
purchase the Option Preferred Securities, at any time at or prior to the Option
Closing Date, without liability on the part of the Underwriters 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
Representatives 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 in your reasonable judgment 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 or escalation of hostilities or
other calamity or crisis (including, without limitation, an act of terrorism) or
material change in general economic, political or financial conditions, or
internal conditions, the effect of which on the financial markets of the United
States is such as to make it, in your reasonable judgment, impracticable to
market the Designated Preferred Securities or enforce contracts for the sale of
the Designated Preferred Securities;
36
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority; or
(f) A banking moratorium shall have been declared by either federal,
New York or Indiana authorities; or
(g) Any action shall have been taken by any government in respect of
its monetary affairs which, in your reasonable judgment, has a material adverse
effect on the United States securities markets so as to make it, in your
reasonable judgment, impracticable to market the Designated Preferred Securities
or to enforce contracts for the sale of the Designated Preferred Securities.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. Default of Underwriters.
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that the non-defaulting Underwriters shall be under no
obligation to purchase such Designated Preferred Securities if the aggregate
number of Designated Preferred Securities to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments set
forth in Schedule I hereto, and provided further, that no non-defaulting
Underwriter shall be obligated to purchase Designated Preferred Securities to
the extent that the number of such Designated Preferred Securities is more than
110% of such Underwriter's underwriting commitment set forth in Schedule I
hereto.
In the event that the non-defaulting Underwriters are not obligated under
the above paragraph to purchase the Designated Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company do not arrange for the
purchase of any Designated Preferred Securities to which a default relates as
provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their
37
underwriting obligation for all purposes of this Agreement. Nothing herein
contained shall relieve any defaulting Underwriter of any liability it may have
for damages occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 9 shall be without liability on the part of
any non-defaulting Underwriter or the Company, except for expenses to be paid or
reimbursed pursuant to Section 5 and except for the provisions of Section 7.
10. Effective Date of Agreement.
If the Registration Statement is not effective at the time of execution of
this Agreement, this Agreement shall become effective on the Effective Date at
the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of this
Agreement, this Agreement shall become effective at the earlier of 11:00 a.m.
St. Louis time, on the first full business day following the day on which this
Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have 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 you or by you, as Representatives of
the several Underwriters, by notifying either Offeror, except that the
provisions of Sections 5 and 7 shall at all times be effective.
11. Representations, Warranties and Agreements to Survive Delivery.
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters or any termination or cancellation of this Agreement and
shall survive delivery of and payment for the Designated Preferred Securities.
12. Notices.
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of telecommunication and
confirmed. Notices to Offerors shall be sent to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇ (with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Esq.) and notices to the Underwriters shall be sent to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
Company, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇,
Esq.). In all dealings with the Company under this Agreement, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
Company, Incorporated shall act as representative of and on behalf of the
several Underwriters, and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made or
given by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated on behalf of the Underwriters,
as if the same shall have been made or given in writing by the Underwriters.
38
13. Parties.
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person controlling the Offerors or the
Underwriters, and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, in his status as such
purchaser, from the Underwriters of the Designated Preferred Securities.
14. Governing Law.
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. Authority.
Any certificate signed by an authorized officer of the Company or the Trust
and delivered to the Representatives or to counsel for the Underwriters pursuant
to this Agreement shall be deemed a representation and warranty by the Company
and the Trust to the Underwriters as to the matters covered thereby.
39
16. Counterparts.
This Agreement may be executed by facsimile and in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
Signatures appear on the next page
40
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 MERCHANTS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Title: Senior Vice President
------------------------
FIRST MERCHANTS CAPITAL TRUST I
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Title: Administrative Trustee
-------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name:
-----------------------
Title:
----------------------
For itself and as co-Representative
of the several Underwriters named in
Schedule I hereto.
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Title: Managing Director
----------------------
For itself and as co-Representative
of the several Underwriters named in
Schedule I hereto.
41
SCHEDULE I
Underwriter Number of Securities
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated...........................858,000
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc..............................................572,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc............................................40,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc.............................................40,000
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc...............................40,000
Prudential Securities Incorporated..................................40,000
Advest, Inc.........................................................20,000
BB&T Capital Markets, a division of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇▇▇, Inc................................................20,000
City Securities Corporation.........................................20,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co..................................................20,000
▇▇▇▇▇▇▇▇▇▇ & Co. Inc................................................20,000
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Inc............................................20,000
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc........................................20,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC.........................................20,000
NatCity Investments, Inc............................................20,000
Sandler ▇'▇▇▇▇▇ & Partners, L.P.....................................20,000
▇▇▇▇▇▇▇▇ Inc........................................................20,000
▇▇▇▇▇▇▇▇ Capital Partners, L.P......................................20,000
▇▇▇▇▇ ▇. ▇▇▇▇▇ & Company.............................................5,000
▇▇▇▇▇▇▇ & Company, Inc...............................................5,000
▇▇▇▇▇, ▇▇▇▇▇ & Co....................................................5,000
▇▇▇▇▇▇▇▇▇▇ Securities Inc............................................5,000
Total............................................................1,850,000
EXHIBIT A
LIST OF SUBSIDIARIES
Decatur Bank & Trust Company
First Merchants Bank, National Association
First Merchants Insurance Services, Inc.
First Merchants Reinsurance Co. Ltd. (First Merchants Corporation owns 79%)
The First National Bank of Portland
First United Bank
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Bank & Trust Company
The Madison Community Bank
The ▇▇▇▇▇▇▇▇ County Bank
The Union County National Bank of Liberty
First Merchants Capital Trust I
First Merchants Capital Trust II
First Merchants Capital Trust III
Indiana Title Insurance Company
Indiana Title Insurance Company, LLC
(First Merchants Corporation owns, indirectly, 52.12%)
Lafayette Bank and Trust Company
Independent Bankers' Life Reinsurance Company of Indiana, Ltd.
(First Merchants Corporation owns, indirectly, 8.54%) (sale pending)