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Success Bancshares, Inc.
Success Capital Trust I
1,725,000 % Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Trust Preferred Security)
May _, 1998
UNDERWRITING AGREEMENT
EVEREN Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated
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Success Bancshares, Inc.
Success Capital Trust I
1,725,000 % Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Trust Preferred Security)
UNDERWRITING AGREEMENT
EVEREN Securities, Inc.
May __, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated
Individually and as Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Success Bancshares, Inc., a Delaware corporation (the "Company"), and its
fiduciary subsidiary, Success Capital Trust I (the "Trust" and, together with
the Company, the "Offerors"), a statutory business trust organized under the
Delaware Business Trust Act (the "Delaware Act"), confirm their agreement with
the several underwriters listed in Schedule I hereto (the "Underwriters"), for
whom EVEREN Securities, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated have been duly
authorized to act as representatives, with respect to the proposed issuance and
sale by the Trust of its % Cumulative Trust Preferred Securities
(liquidation amount $10 per security) representing undivided beneficial
interests in the assets of the Trust (the "Trust Preferred Securities"). The
Offerors propose that the Trust issue the Trust Preferred Securities pursuant to
an Amended and Restated Trust Agreement among Bankers Trust Company, as property
trustee (the "Property Trustee), Bankers Trust (Delaware), as Delaware trustee
(the "Delaware Trustee"), the administrative trustees named therein (the
"Administrative Trustees") and the Company (the "Trust
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Agreement"). The Trust Preferred Securities will be guaranteed by the Company
with respect to distributions and payments upon liquidation, redemption and
otherwise (the "Guarantee") pursuant to a Guarantee Agreement (the "Guarantee
Agreement") between the Company and Bankers Trust Company, as trustee (the
"Guarantee Trustee"). The proceeds of the sale of the Trust Preferred
Securities will be combined with the proceeds from the sale by the Trust to the
Company of the Trust's common securities (the "Common Securities") and will be
used to purchase junior subordinated deferrable interest debentures (the
"Junior Subordinated Debentures") issued by the Company pursuant to an
Indenture ("Indenture") between the Company and Bankers Trust Company, as
trustee (the "Indenture Trustee"). The Offerors hereby confirm their respective
agreements with the Underwriters as follows:
1. The Trust Preferred Securities. The 1,500,000 Trust Preferred
Securities proposed to be sold by the Trust are hereinafter referred to as the
"Firm Securities." The Trust also proposes to grant to the Underwriters an
option to purchase up to 225,000 additional Trust Preferred Securities (the
"Additional Securities") if requested by the Underwriters as provided in
Section 3 hereof. The Firm Securities and the Additional Securities are herein
collectively called the "Securities. "
2. Registration Statement and Prospectus. The Offerors have prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations (the "Rules and Regulations") of the Commission
thereunder (collectively, the "Act"), and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act")' a registration statement on Form S-1 (File
Nos. 333-51271 and 333-51271-01) including a prospectus, relating to the
Securities, the Junior Subordinated Debentures and the Guarantee, that may have
been amended; each such amendment was so prepared and filed. The registration
statement, as amended at the time when it became or becomes effective,
including all financial schedules and exhibits thereto and all of the
information (if any) deemed to be part of the registration statement at the
time of its effectiveness pursuant to Rule 430A under the Act ("Rule 430A"), is
hereinafter referred to as the "Registration Statement"; the prospectus in the
form first provided to the Underwriters by the Offerors in connection with the
offering and sale of the Securities (whether or not required to be filed
pursuant to Rule 424(b) under the Act ("Rule 424(b)")) is hereinafter referred
to as the "Prospectus," except that if any revised prospectus shall be provided
to the Underwriters by the Offerors for use in connection with the offering of
the Securities that differs from the Prospectus (whether or not any such
revised prospectus is required to be filed by the Offerors pursuant to Rule
424(b)), the term "Prospectus" shall refer to the revised prospectus from and
after the time it is first provided to the
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Underwriters for such use; and each preliminary prospectus included in the
Registration Statement prior to the time it became or becomes effective is
herein referred to as a "Preliminary Prospectus."
3. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to the
terms and conditions hereof, (i) the Trust agrees to issue and sell to the
Underwriters, at a price of $10.00 per Security (the "Purchase Price"),
1,500,000 Firm Securities; and (ii) each Underwriter agrees, severally and not
jointly, to purchase from the Trust, at the Purchase Price, the aggregate
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule I hereto. As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Securities (together with the proceeds from the sale by the Trust to the
Company of the Common Securities) will be used to purchase the Junior
Subordinated Debentures, the Company will agree to pay at the Closing Date to
the Underwriters a commission per Security equal to $0.40 per Security, or
$600,000 in the aggregate ($690,000 if the over-allotment option with respect
to the Additional Securities is exercised in full).
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, (i) the Trust agrees
to sell to the Underwriters, at the Purchase Price, up to 225,000 Additional
Securities; and (ii) the Underwriters shall have the right to purchase,
severally and not jointly, from time to time, up to an aggregate of 225,000
Additional Securities at the Purchase Price. Additional Securities may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Securities. If
any Additional Securities are to be purchased, each Underwriter, severally and
not jointly, agrees to purchase the number of Additional Securities that bears
the same proportion to the total number of Additional Securities to be
purchased as the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Securities.
4. Agreements of the Offerors as to Delivery and Payment. The Offerors
agree with each Underwriter that:
(a) Delivery to the Underwriters of, and payment to the Trust for, the
Firm Securities shall be made at 10:00 A.M., Chicago time, on the third (or if
the Firm Securities are priced, as contemplated by Rule 15c6-1(c) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after 4:30
p.m. Eastern time, on the fourth) full business day (such time and date being
referred to as the "Closing Date") following the date of the initial public
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offering of the Firm Securities as advised to you by the Company, at such place
as you shall designate.
(b) Delivery to the Underwriters of and payment for any
Additional Securities to be purchased by the Underwriters shall be made
at such place as you shall designate, at 10:00 A.M., Chicago time, on
such date or dates (individually, an "Option Closing Date" and collectively,
the "Option Closing Dates"), which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date, as shall be specified in
a written notice from you to the Offerors of the Underwriters' determination
to purchase a number, specified in said notice, of Additional Securities. Any
such notice may be given at any time within 30 days after the date of this
Agreement.
(c) The Securities will be delivered by the Trust to the
Underwriters on the Closing Date or the applicable Option Closing Date against
payment of the Purchase Price therefor by certified or official bank check or
wire transfer of next-day funds payable to the order of the Trust to an account
designated by the Trust. Delivery of the Securities may be made by credit
through full fast transfer to the accounts at The Depository Trust Company
designated by you. Certificates representing the Securities, in
definitive form and in such denominations and registered in such names as
you may request in writing not less than two business days prior to the
Closing Date or the applicable Option Closing Date notice to the Offerors
shall be prepared and will be made available for inspection not later than
9:30 A.M., Chicago time, on the business day next preceding the Closing Date
or the applicable Option Closing Date, with any transfer taxes payable
upon initial issuance or the transfer thereof duly paid by the Company for
the respective accounts of the Underwriters against payment of the Purchase
Price therefor.
5. Further Agreements of the Offerors. The Offerors also agree with each
Underwriter that:
(a) they will, if the Registration Statement has not heretofore become
effective under the Act, file an amendment to the Registration Statement or,
if necessary pursuant to Rule 430A under the Act, a post-effective amendment
to the Registration Statement, as soon as practicable after the
execution and delivery of this Agreement, and will use their best efforts to
cause the Registration Statement or such post-effective amendment to become
effective at the earliest possible time; and the Offerors will comply fully and
in a timely manner with the applicable provisions of Rule 424(b) and Rule
430A under the Act;
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(b) they will advise you promptly and, if requested by you, confirm
such advice in writing, (i) when the Registration Statement has become
effective, if and when the Prospectus is sent for filing pursuant to Rule 424
under the Act and when any post-effective amendment to the Registration
Statement becomes effective, (ii) of the receipt of any comments from the
Commission that relate to the Registration Statement or requests by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement, or of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the initiation or, to
the best knowledge of the Offerors, threat of any proceedings for such
purpose by the Commission or any state securities commission or other
regulatory authority, and (iv) of the happening of any event or information
becoming known during the period referred to in paragraph (e) below that makes
any statement of a material fact made in the Registration Statement untrue or
that requires the making of any additions to or changes in the Registration
Statement (as amended or supplemented from time to time) in order to make the
statements therein not misleading or that makes any statement of a material
fact made in the Prospectus (as amended or supplemented from time to time)
untrue or that requires the making of any additions to or changes in the
Prospectus (as amended or supplemented from time to time) in order to make the
statements therein, not misleading; if at any time the Commission shall issue
or institute proceedings (or threaten to institute any such proceedings) to
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue or institute proceedings (or threaten to institute proceedings) to
issue an order suspending the qualification or exemption of the Securities
under any state securities or blue sky laws, the Offerors shall use best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(c) they will furnish to you without charge one signed copy of the
Registration Statement as first filed with the Commission and of each amendment
to it, including all exhibits filed therewith, and will furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request;
(d) they will not file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or make
any amendment or supplement to the Prospectus of which you shall not previously
have been advised and provided a copy a reasonable
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period of time prior to the filing thereof or to which you or your counsel
shall reasonably object, and they will prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the Registration
Statement or supplement to the Prospectus that may be necessary or advisable in
connection with the distribution of the Securities by you in your or your
counsel's opinion, and will use best efforts to cause the same to become
effective as promptly as possible;
(e) promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as a prospectus is required by the
Act to be delivered in connection with the sales by an underwriter or a dealer
(in the opinion of your counsel), they will furnish to each Underwriter and
dealer without charge as many copies of the Prospectus (and any amendment or
supplement of the Prospectus) as such Underwriter or dealer may reasonably
request for the purposes contemplated by the Act, and the Offerors consent to
the use of the Prospectus and any amendment or supplement thereto by any
Underwriter or any dealer, both in connection with the offering or sale of the
Securities and for such period of time thereafter as the Prospectus is required
by the Act to be delivered in connection therewith;
(f) if during the period specified in paragraph (e) any event shall
occur or information become known as a result of which in the reasonable good
faith opinion of your counsel it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances existing as of the date the Prospectus is delivered to a
purchaser, not misleading, or it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and, subject to
paragraph 5(d) above, they will file with the Commission at the sole expense of
the Company an appropriate amendment or supplement to the Prospectus so that
the statements of any material facts in the Prospectus, as so amended and
supplemented, will not in light of the circumstances when it is so delivered,
be misleading, or so that the Prospectus will comply with law and it will
furnish to the Underwriters and to such dealers as the Underwriters shall
specify, at the sole expense of the Company, such number of copies thereof as
such Underwriters or dealers may reasonably request;
(g) prior to any public offering of the Securities, it will cooperate
with you and counsel for the Underwriters in connection with the registration
or qualification of the Securities for offer and sale by the several
Underwriters and by dealers under the state securities or blue sky laws of such
jurisdictions as you may reasonably request (provided that the Offerors shall
not be obligated to qualify as foreign corporations in any jurisdiction in
which they are
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not so qualified or to take any action which would subject them to general
consent to service of process in any jurisdiction in which they are not now so
subject), and the Offerors will continue such qualification in effect so long
as required by law for the distribution of the Securities and will file such
consents to service of process or other documents as may be necessary in order
to effect such registration or qualification (provided that the Offerors shall
not be obligated to take any action that would subject it to general consent to
service of process in any jurisdiction in which they are not now so subject);
(h) they will not, prior to the exercise in full or termination or
expiration of the option to purchase the Option Securities, incur any material
liability or obligation, direct or contingent, or enter into any material
transaction, other than in the ordinary course of business, except as
contemplated by the Prospectus;
(i) they will mail and make generally available to their security
holders and furnish to the Underwriters as soon as reasonably practicable a
consolidated earnings statement covering a period of at least 12 months
beginning after the "effective date" (as defined in Rule 158 under the Act) of
the Registration Statement (but in no event commencing later than 90 days after
such date) that will satisfy the provisions of Section 11 (a) of the Act and
Rule 158 thereunder, and will advise you in writing when such statement has
been made so available;
(j) during the period of three years after the date of this
Agreement, they will furnish to you a copy (i) as soon as practicable after the
filing thereof, of each report filed by either of the Offerors with the
Commission, any securities exchange or the National Association of Securities
Dealers, Inc. ("NASD"); (ii) as soon as practicable after the release thereof,
of each material press release in respect of either of the Offerors; (iii) as
soon as available, of each report of the Company mailed to shareholders; and
(iv) as soon as available, such other publicly available information concerning
the Offerors as you may reasonably request;
(k) whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective as to all of its provisions or
is terminated, to pay all costs, fees and expenses incident to the performance
by the Offerors of their obligations hereunder, including (i) the preparation,
printing, filing and distribution under the Act of the Registration Statement
(including financial statements and exhibits), each Preliminary Prospectus and
all amendments and supplements to any of them prior to or during the period
specified in paragraph (e) above of this Section 5, (ii) the
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word processing, reproduction and distribution of this Agreement, the
Blue Sky Survey and any other agreements, memoranda, correspondence and other
documents prepared and delivered by the Underwriters or their counsel in
connection with the offering of the Securities (including in each case any
disbursements of counsel for the Underwriters relating to such preparation and
delivery), (iii) the registration or qualification of the Securities for offer
and sale under the securities or blue sky laws of the several states, including
in each case the fees and disbursements of counsel for the Underwriters,
relating to such registration or qualification and memoranda relating thereto,
(iv) filings and clearance with the NASD in connection with the offering and
sale of the Securities, (v) the listing of the Securities on the Nasdaq
National Market ("Nasdaq"), (vi) furnishing such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with the offering
or sale of the Securities by the Underwriters or by dealers to whom the
Securities may be sold, (vii) obtaining the opinions to be provided pursuant to
Sections 8(f), 8(g) and 8(h) of this Agreement and (viii) the performance by
the Offerors of all of their other obligations under this Agreement; if the
sale of the Securities provided for herein is not consummated because the
Underwriters exercise their right to terminate this Agreement pursuant to
Section 9 hereof and any of the following have occurred during the term of
this Agreement: (a) there has been any material adverse change in the
condition (financial or otherwise), earnings, affairs, business or prospects
of the Company, or (b) either Offeror shall refuse or be unable to comply with
any provision hereof (except as the result of a breach of this Agreement by
the Underwriters), the Company will promptly reimburse the Underwriters upon
demand for all reasonable out-of-pocket expenses (including the fees and
disbursements of counsel for the Underwriters), not to exceed $25,000 in the
aggregate, that shall have been incurred by the Underwriters in connection with
the proposed purchase and sale of Securities;
(l) they will use the net proceeds received by them from the sale of
the Securities and the Junior Subordinated Debentures in the manner specified
in the Prospectus and will file such reports with the Commission with respect
to the application of the proceeds therefrom as may be required in accordance
with Rule 463 under the Act and will furnish you copies of any such reports as
soon as practicable after the filing thereof;
(m) if, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule 430A,
then immediately following the execution and delivery of this Agreement, they
will prepare, and file or transmit for filing with the Commission in accordance
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with such Rule 430A and Rule 424(b), copies of an amended prospectus, or, if
required by such Rule 430A, a post-effective amendment to the Registration
Statement (including an amended prospectus), containing all information so
omitted;
(n) they will use best efforts to cause the Securities to be listed,
subject to notice of issuance or sale, on Nasdaq and will comply with all
registration, filing and reporting requirements of Nasdaq;
(o) they will not take, directly or indirectly, any action designed to
or which might reasonably be expected to cause or result in the stabilization
or manipulation of the price of any security of either Offeror to facilitate
the sale or resale of the Securities;
(p) they will inform the Florida Department of Banking and Finance at
any time prior to the consummation of the distribution of the Securities by the
Underwriters if either of them commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba, with such
information to be provided within 90 days after the commencement thereof or
after a change occurs with respect to previously reported information; and
(q) they will use its best efforts to do and perform all things
required to be done and performed under this Agreement by them prior to or
after the Closing Date or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the Securities.
6. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to, and
agree with, each Underwriter as of the date hereof, the Closing Date and each
Option Closing Date (except for such representations that are specified as
being made as of a particular date) as follows:
(i) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus relating to the proposed
offering of the Securities nor instituted or threatened any proceedings
for that purpose. The Registration Statement, on the date it was or is
declared effective by the Commission, each Preliminary Prospectus, on the
date of the filing thereof with the Commission, and the Prospectus and
any amendment or supplement thereto, on the date of filing thereof with
the Commission (or if not filed, on the date provided by the Offerors to
the Underwriters in connection with the
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offering and sale of the securities) and at the Closing Date and each Option
Closing Date conformed or will conform in all material respects with the
requirements of the Act, the Rules and Regulations and the Trust Indenture Act
and the rules and regulations thereunder. The Registration Statement, on the
date it was or is declared effective by the Commission, upon the filing or
first delivery to the Underwriters of the Prospectus (or any supplement to the
Prospectus (including any term sheet meeting the requirements of Rule 434 of
the Rules and Regulations) and at the Closing Date and each Option Closing Date
did not or will not contain an untrue statement of 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; each Preliminary Prospectus; and on the date of the filing
thereof with the Commission, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof 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 Securities) and at the Closing Date and each Option
Closing Date did not and will not include an untrue statement of 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; provided that the foregoing shall not apply to
statements in or omissions from the Registration Statement and the Prospectus
made or omitted in reliance upon, and in conformity with, information relating
to the Underwriters furnished in writing to the Offerors by or on behalf of the
Underwriters with your consent expressly for use therein. The Offerors hereby
acknowledge for all purposes under this Agreement that (A) the statements set
forth under the caption "Underwriting" in the Prospectus and (B) the
stabilization legend on the gate-fold of the Prospectus constitute the only
written information furnished to the Offerors by or on behalf of the
Underwriters for use in the preparation of the Registration Statement or the
Prospectus or any amendment or supplement thereto.
(ii) The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of Delaware and is duly registered
as a bank holding company under the Bank Holding Company Act of 1956, as
amended (the "BHC Act"), supervised by the Board of Governors of the Federal
Reserve System (the "FRB"). The Trust, Success National Bank, a national
banking association chartered under the federal laws of the United States (the
"Bank"), and Success Realty Ventures, Inc., a Delaware corporation (each of the
Bank and
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Success Realty Ventures, Inc., a "Subsidiary" and, collectively, the
"Subsidiaries") constitute the only subsidiaries of the Company. Each
Subsidiary has been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization, as the
case may be. Each of the Company and its Subsidiaries has full power and
authority, corporate or otherwise, to own or lease its properties and assets
and to conduct its business as described in the Registration Statement and the
Prospectus and is duly qualified to do business and in good standing in each
jurisdiction in which it owns or leases real property or in which the conduct
of its business or the ownership or leasing of property requires such
qualification, except where the failure to be so qualified, either individually
or in the aggregate, would not have a material adverse effect on the condition
(financial or otherwise), business, assets, prospects, net worth or results of
operations of the Trust, the Company and the Subsidiaries, taken as a whole (a
"Material Adverse Effect"). Other than the Trust and the Subsidiaries, the
Company does not have any "significant subsidiaries" as defined in Rule 1-02 of
Regulation S-X under the Act. The accounts of the Bank are insured by the Bank
Insurance Fund of the Federal Deposit Insurance Corporation (the "FDIC") up to
the maximum applicable amount in accordance with the rules and regulations of
the FDIC, and no proceedings for the termination or revocation of such
membership or insurance are pending, or to the best knowledge of the Offerors,
threatened.
(iii) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with full trust power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under this Agreement, the Securities, the Common Securities and the
Trust Agreement and is authorized to do business in each jurisdiction in which
such qualification is required, except where the failure to so qualify would
not have a Material Adverse Effect. The Trust has conducted and will conduct no
business other than the transactions contemplated by the Trust Agreement and
described in the Prospectus. The Trust is not a party to or otherwise bound by
any agreement other than those described in the Prospectus. The Trust is and
will be classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation.
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(iv) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and Prospectus, (A) none of the Offerors or the Subsidiaries has incurred any
material liabilities or obligations, direct or contingent, or entered into any
material transactions not in the ordinary course of business, nor purchased any
of its outstanding capital stock or declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock or otherwise, and (B)
there has not been any material adverse change in either Offeror's or any
Subsidiary's condition (financial or otherwise), business, affairs, prospects
or results of operations or any material change in their respective capital
stock, shortterm debt or long-term debt.
(v) The Junior Subordinated Debentures have been duly authorized by
the Company and at the Closing Date will have been duly executed by the Company
and, when authenticated in the manner provided in the Indenture and delivered
against payment therefor as described in the Prospectus, will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforceability of the same may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general equity principles,
will be in the form contemplated by, and entitled to the benefits of, the
Indenture and will conform in all material respects to the statements relating
thereto in the Prospectus.
(vi) The Common Securities have been duly authorized by the Trust and,
when issued and delivered by the Trust to the Company against payment therefor
as described in the Registration Statement and Prospectus, will be validly
issued and (subject to the terms of the Trust Agreement) fully paid and
nonassessable undivided beneficial interests in the assets of the Trust and
will conform in all material respects to all statements relating thereto
contained in the Prospectus. The issuance of the Common Securities is not
subject to preemptive or other similar rights. At the Closing Date all of the
issued and outstanding Common Securities of the trust will be directly owned by
the Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(vii) The Securities have been duly authorized by the Trust Agreement
and, when issued and delivered pursuant to this Agreement against payment of
the consideration set forth herein, will be validly
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issued and fully paid and non-assessable undivided beneficial interests in the
Trust, will be entitled to the benefits of the Trust Agreement and will in all
material respects conform to the statements relating thereto contained in the
Prospectus. The issuance of the Securities is not subject to preemptive or
other similar rights. Holders of Securities will be entitled to the same
limitation of personal liability under Delaware law as extended to stockholders
of a private corporation for profit.
(viii) Each of this Agreement, the Indenture, the Trust Agreement and
the Guarantee Agreement has been duly authorized, executed and delivered by the
Company and/or the Trust, as the case may be, and constitutes a legal, valid
and binding obligation of the Company and/or the Trust, as the case may be,
enforceable in accordance with its terms, except as enforceability of the same
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general equity
principles. Each Offeror has full power and authority to enter into this
Agreement, the Indenture, the Trust Agreement and the Guarantee Agreement, as
the case may be, and, in the case of the Trust, to authorize, issue and sell
the Securities as contemplated by this Agreement, and each of the Indenture,
the Trust Agreement and the Guarantee Agreement has been duly qualified under
the Trust Indenture Act and will conform in all material respects to the
statements relating thereto in the Registration Statement and the Prospectus.
(ix) Neither the Company nor any Subsidiary is in violation of its
respective charter or by-laws. The Trust is not in violation of the Trust
Agreement or its certificate of trust filed with the State of Delaware on April
21, 1998 (the "Certificate of Trust"). Neither Offeror nor any Subsidiary is in
violation of or in breach of or in default in (nor has any event occurred that
with notice or lapse of time, or both, would be a breach of or a default in)
the performance of any obligation, agreement or condition contained in any
material agreement, lease, contract, permit, license, franchise agreement,
mortgage, loan agreement, debenture, note, deed of trust, bond, indenture or
other evidence of indebtedness or any other instrument or obligation
(collectively, "Obligations and Instruments") to which any of them is a party
or by which any of them or any of their respective properties or assets is
bound or affected (except for such contravention or default as would not have a
Material Adverse Effect). Neither Offeror nor any Subsidiary is in violation of
any statute, judgment, decree, order, rule or regulation (collectively, "Laws")
applicable to any of them or any of their
13
15
respective properties or assets that, alone, or together with other violations
of Laws would result in a Material Adverse Effect. To the best knowledge of the
Offerors, no other party under any contract or other agreement to which either
Offeror or any Subsidiary is a party is in material default thereunder except
for such defaults as would not individually or in the aggregate result in a
Material Adverse Effect.
(x) The execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement and the Guarantee Agreement and the consummation
of the transactions contemplated hereby or thereby will not, alone or upon
notice or the passage of time or both, (A) require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body or third party (except such as may be
required under the Act and the securities or blue sky laws of the various
states or by the NASD), (B) result in the creation or imposition of any lien,
charge or encumbrance upon any of the properties or assets of either Offeror
pursuant to the terms and provisions of any Obligation or Instrument, (C)
conflict with or constitute a breach or default under any Obligation or
Instrument to which either Offeror is a party or by which either of them or any
of their respective properties or assets is bound (except for such creation,
conflict, breach or default as would not have a Material Adverse Effect), or
conflict with or result in a breach or violation of any of the terms and
provisions of the Company's charter or by-laws, the Trust's Trust Agreement or
its Certificate of Trust, or (D) assuming compliance with the Act and all
applicable state securities or Blue Sky laws, violate or conflict with any Laws
applicable to the Company or any of its properties or assets (except for such
violation or conflict as could not have a Material Adverse Effect). No action,
suit or proceeding before any court or arbitrator or any governmental body,
agency or official (domestic or foreign) is pending against or, to the best
knowledge of the Offerors, threatened against either Offeror, that, if
adversely determined, could reasonably be expected to in any manner invalidate
this Agreement, the Indenture, the Trust Agreement or the Guarantee Agreement.
(xi) Except as set forth in the Prospectus, there is no action, suit,
proceeding, inquiry or investigation, governmental or otherwise before any
court, arbitrator or governmental agency or body (collectively, "Proceedings")
pending to which either Offeror or any Subsidiary is a party or to which any of
their respective properties or assets are subject, that, if determined
adversely to them, might result in
14
16
a Material Adverse Effect, or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of any of the
Securities to be sold hereunder, and, to the best knowledge of the Offerors, no
such Proceedings are threatened or contemplated.
(xii) There is no contract, document, agreement or transaction to
which either Offeror or any Subsidiary is a party, or that involved or involves
any of them or any of their respective properties or assets that is required to
be described in or filed as exhibits to the Registration Statement or the
Prospectus by the Act or the Rules and Regulations that have not been so
described or filed.
(xiii) No action has been taken with respect to either Offeror, and,
to the best knowledge of the Offerors, no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency that suspends
the effectiveness of the Registration Statement, prevents or suspends the use
of any Preliminary Prospectus or the Prospectus or suspends the sale of the
Securities in any jurisdiction referred to in Section 5(g) hereof. No
injunction, restraining order or order of any nature by a federal or state
court of competent jurisdiction has been issued with respect to either Offeror
that might prevent the issuance of the Securities, suspend the effectiveness of
the Registration Statement, prevent or suspend the use of any Preliminary
Prospectus or the Prospectus or suspend the sale of the Securities in any
jurisdiction referred to in Section 5(g) hereof; and every request of the
Commission, or any securities authority or agency of any jurisdiction, for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) has been complied with in all material respects.
(xiv) All of the issued and outstanding shares of capital stock of the
Company are duly authorized and are validly issued, fully paid and
non-assessable, have been issued in compliance with all federal and state
securities laws, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities, and the holders
thereof are not subject to personal liability by reason of being such holders.
The capital stock of the Company conforms to the description thereof in the
Registration Statement and Prospectus under the caption "Capitalization."
Except as otherwise stated in the Registration Statement and Prospectus, there
are no preemptive rights or other rights to subscribe for or to purchase, or
any restriction upon the voting or transfer of, any shares of the Company's
capital stock
17
pursuant to the Company's charter, by-laws or any agreement or other instrument
to which the Company is a party to by which the Company is bound. Neither the
filing of the Registration Statement nor the offering or sale of the Junior
Subordinated Debentures or Securities as contemplated by this Agreement gives
rise to any rights for or relating to the registration of any shares of capital
stock of the Company. All of the issued and outstanding shares of capital stock
of each Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and except as set forth on Schedule 11 hereto,
the Company owns of record and beneficially, free and clear of any securities
interests, claims, liens, proxies, equities or other encumbrances, all of the
issued and outstanding shares of such stock. Except as described in the
Registration Statement and the Prospectus, there are no options, warrants,
agreements, contracts or other rights in existence to purchase or acquire from
the Company or any Subsidiary any shares of the capital stock of the Company or
such Subsidiary.
(xv) The Indenture, the Trust Agreement and the Guarantee Agreement
are in substantially the respective forms filed as exhibits to the Registration
Statement.
(xvi) The Company's obligations under the Guarantee are subordinated
and junior in right of payment to all "Senior and Subordinated Debt" (as
defined in the Indenture) of the Company.
(xvii) The Junior Subordinated Debentures are subordinate and junior
in right of payment to all "Senior and Subordinated Debt" of the Company.
(xviii) Each of the Administrative Trustees is an employee of the
Company and has been duly authorized by the Company to execute and deliver the
Trust Agreement.
(xix) Neither Offeror nor any Subsidiary has violated any foreign,
federal, state or local law or regulation relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws") that, in each case or in the
aggregate, might result in a Material Adverse Effect. To the best knowledge of
the Offerors, none of the property owned or leased by either Offeror or any
Subsidiary is contaminated with any waste or hazardous substances, nor, to the
best knowledge of the Offerors, may either Offeror or any Subsidiary be
18
deemed an "owner or operator" of a "facility" or "vessel" that owns, possesses,
transports, generates, discharges or disposes of a "hazardous substance" as
those terms are defined in Sections 9601 of the Comprehensive Response Compen-
sation and Liability Act of 1980, U.S.C. Sections 9601 et seq.
(xx) Each of the Company and the Subsidiaries is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). No "reportable
event" (as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) which could have a material adverse effect on the general
affairs, management, financial position stockholders' equity or results of
operations of the Company and its Subsidiaries for which the Company or any
Subsidiary would have any liability. Neither the Company nor any Subsidiary has
incurred or expects to incur liability under (A) Title IV of ERISA with respect
to termination of, or withdrawal from, any "pension plan," or (B) Sections 412
or 4971 of the Internal Revenue Code or 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"), in each case
which could have a Material Adverse Effect. Each "pension plan" for which the
Company or any Subsidiary would have any liability that is intended to be
qualified under Section 501 (a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification, except for such losses as
would not have a Material Adverse Effect.
(xxi) The Offerors and the Subsidiaries hold such permits, licenses,
franchises and authorizations of governmental or regulatory authorities or
third parties ("Permits"), including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate their respective
properties and assets and to conduct their respective businesses, except where
the failure to have any such Permit would not have a Material Adverse Effect.
To the best knowledge of the Offerors, the Offerors and the Subsidiaries have
fulfilled and performed all of their respective material obligations with
respect to such Permits, and no event has occurred that allows, or after notice
or lapse of time or both, would allow revocation or termination thereof or
result in any other material impairment of the rights of the holder of any such
Permit.
19
(xxii) Neither of the Offerors nor any Subsidiary is an "investment
company", a company "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").
(xxiii) The Offerors and the Subsidiaries have good and marketable
title, free and clear of all liens, claims, encumbrances and restrictions
(except liens for taxes not yet due and payable) to all property and assets
described in the Registration Statement as being owned by them, except as
described or referred to in the Prospectus or as would not have a Material
Adverse Effect. All leases to which either Offeror or any Subsidiary is a party
and which are material to the Company and the Subsidiaries on a consolidated
basis are subsisting, valid and binding and no default of such Offeror or
Subsidiary or, to the best knowledge of the Offerors, any other person has
occurred or is continuing thereunder that might result in a Material Adverse
Effect. Such Offeror or Subsidiary enjoys peaceful and undisturbed possession
under all such leases to which they are a party as lessee with such exceptions
as do not materially interfere with the use made thereof by such Offeror or
Subsidiary.
(xxiv) The Offerors and the Subsidiaries maintain reasonably adequate
insurance for the conduct of their respective businesses in accordance with
prudent business practices with reputable third-party insurers.
(xxv) McGladrey & ▇▇▇▇▇▇ LLP, the accounting firm that has certified
or reviewed, or shall certify or review, the financial statements and
supporting schedules filed or to be filed with the Commission as part of the
Registration Statement and the Prospectus, is an independent public accounting
firm with respect to the Trust, the Company and the Subsidiaries as required by
the Act.
(xxvi) The consolidated financial statements of the Company, together
with related notes and schedules of the Company included in the Registration
Statement and the Prospectus, comply in all material respects with the
requirements of the Act and the Exchange Act, are accurate and present fairly
the financial position, results of operations and cash flows of the Company at
the indicated dates and for the indicated periods. Such financial statements of
have been prepared in accordance with generally accepted accounting principles
("GAAP")
20
consistently applied throughout the periods involved except as otherwise
disclosed therein, and all adjustments necessary for a fair presentation of
results for such periods have been made. The summary and selected financial and
operating data included in the Registration Statement and the Prospectus
present fairly the information shown therein and have been compiled on a basis
consistent with the audited financial statements included therein except as
otherwise disclosed therein.
(xxvii) No holder of any security of either Offeror has any right to
require inclusion of any such security in the Registration Statement. There are
no preemptive rights with respect to the offering being made by the Prospectus.
(xxviii) No labor dispute with the employees of either Offeror or any
Subsidiary exists, or to the best knowledge of the Offerors, is imminent, that
could result in a Material Adverse Effect.
(xxix) Each of the Offerors and each Subsidiary has filed or caused to
be filed, or has properly filed extensions for, all foreign, federal, state and
local income, value added and franchise tax returns and has paid all taxes and
assessments shown thereon as due, except for such taxes and assessments as are
disclosed or adequately reserved against and that are being contested in good
faith by appropriate proceedings, promptly instituted and diligently conducted.
All material tax liabilities are adequately provided for on the books of the
such Offeror or Subsidiary, and there is no material tax deficiency that has
been or might be asserted against any of them that is not so provided for.
(xxx) The Offerors and the Subsidiaries own or possess, or can acquire
on reasonable terms, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Patents and
Proprietary Rights") currently employed by them in connection with the
businesses they now operate except where the failure to so own, possess or
acquire such Patents and Proprietary Rights would not have a Material Adverse
Effect. Neither of the Offerors nor any Subsidiary has received any notice or
is otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Patent or Proprietary Rights that, if the subject of
21
any unfavorable decision, ruling or finding, singly or in the aggregate, could
result in a Material Adverse Effect.
(xxx)) Each Offeror and each Subsidiary is conducting and intends to
conduct its business so as to comply in all material respects with applicable
federal, state, local and foreign government Laws, except where the failure to
comply would not have a Material Adverse Effect. Except as set forth in the
Registration Statement and the Prospectus, neither of the Offerors nor any
Subsidiary is charged with or, to the best knowledge of the Offerors, under
investigation with respect to, any material violation of any such Laws.
(xxxii) Neither Offeror has taken or will take, directly or
indirectly, any action designed to or which has constituted or that might
reasonably be expected to cause or result, under the Exchange Act or otherwise,
in stabilization or manipulation of the price of any security of either Offeror
to facilitate the sale or resale of the Securities.
(xxxiii) None of the Offerors, any Subsidiary nor, to the best
knowledge of the Offerors, any employee or agent of any of them has made any
payment of funds of such Offeror or Subsidiary or received has retained any
funds in violation of any Law, rule or regulation (including, without
limitation, the Foreign Corrupt Practices Act) or of a character required to be
disclosed in the Prospectus. Neither of the Offerors nor any Subsidiary has, at
any time during the past five years, (A) made any unlawful contributions to any
candidate for any political office, or failed fully to disclose any
contribution in violation of law, or (B) made any unlawful payment to state,
federal or foreign government officer or officers, or other person charged with
similar public or quasi-public duty.
(xxxiv) Each of the Company and the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, and (iii) access to assets is permitted only in
accordance with management's general or specific authorization.
(xxxv) The Offerors have not distributed and will not distribute any
prospectus or other offering material in connection with the offering
20
22
and sale of the Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Company.
(xxxvi) Other than as contemplated by this Agreement or described in
the Registration Statement, neither Offeror has incurred any liability for any
finder's or broker's fee or agent's commission in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xxxvii) The Bank is in good standing with the Office of the
Comptroller of the Currency (the "OCC"), and the activities of the Company and
the Bank are permitted under applicable federal and state banking laws and
regulations. The Company has all necessary approvals, including the approvals
of the OCC and the FRB, to own the capital stock of the Bank. Neither the
Company nor the Bank is a party or subject to any agreement or memorandum with,
or directive or order issued by, the FRB, the OCC, the Office of the Illinois
Commissioner of Banks and Real Estate (the "Commissioner"), the FDIC or other
bank regulatory authority having jurisdiction over it (the "Banking
Regulators"), which imposes any restrictions or requirements not generally
applicable bank holding companies or commercial banks. Neither the Company nor
the Bank is subject to any directive from any Banking Regulator to make any
material change in the method of conducting their respective businesses, and no
such directive is pending or threatened by such Banking Regulators.
(xxxviii) The Offerors expect that Securities having an aggregate
liquidation amount of approximately $9,665,000 will qualify as "tier 1" capital
(as defined in 12 C.F.R. Part 325).
(xxxix) The Company has taken and will continue diligently to take all
actions necessary to the consummation of the Minority Acquisition (as defined
in the Prospectus), and, to the best knowledge of the Company, there exists no
reason that such Minority Acquisition would not be consummated.
(xi) The conditions for use of Form S-1, as set forth in the General
Instructions thereto, have been satisfied.
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(xii) The Offerors and the Subsidiaries are in compliance with all
provisions of Section 1 of Florida Statutes, Section 517.075, An Act Relating
to Disclosure of Doing Business with Cuba.
(b) Any certificate signed by any officer of the Company or a trustee
of the Trust and delivered to you or to counsel for the Underwriters shall be
deemed a representation and warranty jointly and severally made by the Offerors
to each Underwriter as to the matters covered thereby and shall be deemed
incorporated herein in its entirety and shall be effective as if such
representation and warranty were made herein.
7. Indemnification.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each of the Underwriters and each person, if any, who controls each of
the Underwriters within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (the "indemnified parties") from and against any and all
losses, claims, damages, liabilities and judgments caused by, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (as amended or supplemented if the
Offerors shall have furnished any amendments or supplements thereto), including
the information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A, if applicable, or the Prospectus or any
Preliminary Prospectus or caused by any omission or alleged omission to state
therein 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; provided, however, that the Offerors shall not be liable in any
such case to the extent that such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission made or omitted in
reliance upon, and in conformity with, information relating to the Underwriters
furnished in writing to the Offerors by or on behalf of the Underwriters with
your consent expressly for use therein.
(b) In case any action shall be brought against any of the indemnified
parties, based upon any Preliminary Prospectus, the Registration Statement or
the Prospectus or any amendment or supplement thereto and with respect to which
indemnity may be sought against the Offerors, such indemnified parties shall
promptly notify the Offerors in writing (but the failure so to notify shall not
relieve the Offerors of any liability that they may otherwise have to such
indemnified parties under this Section 7 (although the Offerors' liability to
an indemnified party may be reduced on a monetary basis to the extent, but only
to the extent, they have been prejudiced by such failure
22
24
on the part of such indemnified party)) and the Offerors shall promptly assume
the defense thereof, including the employment of counsel satisfactory to such
indemnified party and payment of all fees and expenses. The indemnified parties
shall each have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified parties unless (i) the employment
of such counsel shall have been specifically authorized by the Offerors, (ii)
the Offerors shall have failed to assume promptly the defense or to employ
counsel reasonably satisfactory to such indemnified party or (iii) the named
parties to any such action (including any impleaded parties) include both the
indemnified parties and the Offerors, and an indemnified party shall have been
advised by counsel that there may be one or more legal defenses available to
one or more of the indemnified parties that are different from or additional to
those available to the Offerors (in which case the Offerors shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the Offerors 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 fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for the indemnified
parties, which firm shall be designated in writing by you, and that all such
fees and expenses shall be reimbursed promptly as they are incurred). The
Offerors shall not be liable for any settlement of any such action effected
without their written consent, which consent shall not be unreasonably
withheld, but if settled with the written consent of the Offerors, the Offerors
agree to indemnify and hold harmless the indemnified parties from and against
any and all loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 10 business days after delivery by registered or
certified mail to the proper address for notice to such indemnifying party of
the aforesaid request (whether or not such delivery is accepted) and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could be a party and indemnity could be
sought hereunder by such indemnified party, unless such settlement includes an
unconditional and complete release in writing of such indemnified
23
25
party from any and all liability on claims that are the subject matter of such
proceeding, which such settlement shall be in form and substance reasonably
satisfactory to the indemnified party. The indemnification provided in this
Section 7 will be in addition to any liability which the Offerors may otherwise
have.
(c) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless the Offerors and their directors, officers and trustees and
any person controlling the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Offerors to the Underwriters but only with reference to
information stated in or omitted from the Registration Statement, the
Prospectus or any Preliminary Prospectus in reliance upon, and in conformity
with, information relating to the Underwriters furnished in writing to the
Offerors by or on behalf of the Underwriters with your consent expressly for
use therein. In case any action shall be brought against the Offerors or any
other such person based on the Registration Statement, the Prospectus or any
Preliminary Prospectus and in respect of which indemnity may be sought against
the Underwriters, the Underwriters shall have the rights and duties given to
the Offerors by Section 7(b) hereof (except that if the Offerors shall have
assumed the defense thereof, such Underwriter shall not be required to do so,
but may employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Offerors and such other persons shall have the rights and
duties given to the "indemnified parties" by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is for any
reason unavailable to an indemnified party or insufficient to hold such
indemnified party harmless in respect of any losses, claims, damages,
liabilities or judgments 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 and judgments (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 Securities or (ii) if the
allocation provided in 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 or alleged statements or omissions that resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Offerors on the
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26
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 and
sale of the Securities (before deducting expenses) received by the
Offerors on the one hand, and the total underwriting discounts and
commissions received by the Underwriters on the other, bears to the
total price to the public of the Securities, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault
of the Offerors and the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or the alleged omission to state a
material fact relates to information supplied by the Offerors or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Offerors and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding
paragraph 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 Section
7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise paid or 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligation in this Section 7(d) to contribute are
several in proportion to the respective amount of Securities purchased
hereunder by each Underwriter and not joint.
8. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
Closing Date and the Option Securities on any Option Closing Date are subject to
the fulfillment of each of the following conditions on or prior to the Closing
Date and each Option Closing Date:
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27
(a) All the representations and warranties of the Offerors contained
in this Agreement and in any certificate delivered hereunder shall be true and
correct on the Closing Date and each Option Closing Date with the same force
and effect as if made on and as of the Closing Date or Option Closing Date, as
applicable. The Offerors shall not have failed at or prior to the Closing Date
or Option Closing Date, as applicable, to perform or comply in all respects
with any of the agreements herein contained and required to be performed or
complied with by them at or prior to the Closing Date.
(b) If the Registration Statement is not effective at the time of the
execution and delivery of this Agreement, the Registration Statement shall have
become effective (or, if a post-effective amendment is required to be filed
pursuant to Rule 430A under the Act, such post-effective amendment shall have
become effective) not later than 4:30 P.M., Chicago time, on the date
immediately following the date of this Agreement or such later time as you may
approve in writing or, if the Registration Statement has been declared
effective prior to the execution and delivery hereof in reliance on Rule 430A,
the Prospectus shall have been filed as required hereby, if necessary; and at
the Closing Date and each applicable Option Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been commenced or shall
be pending before or, to the best knowledge of the Underwriters and the
Offerors, threatened by the Commission. Every request for additional
information on the part of the Commission shall have been complied with to the
Underwriters' satisfaction. No stop order suspending the sale of the Securities
in any jurisdiction referred to in Section 5(g) shall have been issued, and no
proceeding for that purpose shall have been commenced or shall be pending or
threatened.
(c) The Securities shall have been qualified for sale under the blue
sky laws of such states as shall have been specified by you; provided that you
and your counsel shall use best efforts to qualify the Securities for sale
under such laws.
(d) The legality and sufficiency of the authorization, issuance and
sale or transfer and sale of the Securities hereunder, the execution and
delivery of this Agreement and all corporate proceedings and other legal
matters incident thereto, and the form of the Registration Statement and the
Prospectus (except financial statements) shall have been approved by counsel
for the Underwriters exercising reasonable judgment, and no Underwriter shall
have advised the Company that the Registration Statement or the Prospectus, or
any amendment or supplement thereto, contains an untrue statement of
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28
material fact, or omits to state a fact that in your opinion is material and is
required to be stated therein or is necessary to make the statements therein
not misleading.
(e) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any material change, or any material development
involving a prospective change, in or affecting particularly the business or
properties of the Offerors or the Subsidiaries, whether or not arising in the
ordinary course of business, that, in your reasonable judgment, makes it
impractical or inadvisable to proceed with the public offering or purchase of
the Securities as contemplated hereby.
(f) You shall have received an opinion (satisfactory to you and your
counsel) dated the Closing Date or the Option Closing Date, as the case may be,
of Much Shelist Freed ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Bell & ▇▇▇▇▇▇▇▇▇▇, counsel for Offerors,
to the effect that:
(i) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of Delaware. The
Bank has been duly organized and is validly existing as a national
banking association in good standing under the federal laws of the
United States. Each of the Company and the Subsidiaries has all
necessary power and authority, corporate or otherwise, to own, lease
and operate their respective properties and assets and to conduct
their respective businesses as described in the Registration Statement
and the Prospectus, and each is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in
which its ownership or lease or real property or the conduct of its
business makes such qualification necessary and in which the failure
to so qualify could have a Material Adverse Effect.
(ii) Each Offeror has all necessary power and authority,
corporate, trust or otherwise, to enter into and perform this
Agreement, the Indenture, the Trust Agreement and the Guarantee
Agreement, as applicable, and to effect the transactions contemplated
hereby or thereby. The performance of the Offerors' respective
obligations hereunder and under the Indenture, the Trust Agreement and
the Guarantee Agreement, as applicable, have been duly authorized by
all necessary action. This Agreement, the Indenture, the Trust
Agreement and the Guarantee Agreement have been duly executed and
delivered by and on behalf of the Trust and/or the Company, as
applicable, and, assuming due authorization, execution and delivery of
such agreements
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by the other parties thereto, constitute legal, valid and binding agreements of
the Trust and/or the Company, as applicable, enforceable in accordance with
their respective terms, except as enforceability of the same may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
other similar laws of general applicability relating to or affecting creditors'
rights generally and by general equity principles. No approval, consent, order,
authorization, designation, declaration or filing by or with any regulatory,
administrative or other governmental body or, to the best of such counsel's
knowledge, third party, is necessary in connection with the execution and
delivery of this Agreement, the Indenture, the Trust Agreement or the Guarantee
Agreement and the consummation of the transactions contemplated herein or
therein or as contemplated by the Prospectus (other than as may be required by
the Trust Indenture Act, the Act, the NASD or as required by state securities
or blue sky laws or in connection with approval of the Trust's Nasdaq National
Market listing application, as to which such counsel need express no opinion)
except such as have been obtained or made, with counsel specifying the same.
(iii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization." All of the
shares of outstanding capital stock of the Company have been duly authorized
and validly issued, are fully paid and non-assessable and were not issued in
violation of any preemptive rights or, to the best of such counsel's knowledge,
other rights to subscribe for or purchase securities. Except as set forth in
the Registration Statement and the Prospectus, to the best of such counsel's
knowledge, no options, warrants or other rights to convert any obligation into,
or exchange any securities for, shares of capital stock or ownership interests
in the Company are outstanding.
(iv) To the best of such counsel's knowledge, after due inquiry,
neither the filing of the Registration Statement or any amendment thereto nor
the offer and sale of the Securities to the Underwriters as contemplated by
this Agreement gives rise to any rights, nor do any rights exist, for or
relating to the registration under the Act of any securities of either Offeror.
(v) The Registration Statement has become effective under the Act, the
Prospectus has been filed as required by this Agreement, if necessary, and to
the best of such counsel's knowledge: (i) after telephonic inquiry of the
Commission, no stop order suspending the
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effectiveness of the Registration Statement has been issued; and (ii) no
proceedings for that purpose are pending or have been initiated or threatened
by the Commission. The Registration Statement (including the information deemed
to be part of the Registration Statement at the time of effectiveness pursuant
to Rule 430A, if applicable), the Prospectus and each amendment or supplement
thereto (except for the financial statements and other statistical or financial
data included therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Act and the
Rules and Regulations.
(vi) The descriptions in the Registration Statement and Prospectus of
contracts, instruments and other documents filed as exhibits to the
Registration Statement, and the description of legal and governmental
proceedings, are accurate in all material respects, and such counsel does not
know of any Proceedings required to be described in the Prospectus that are not
described, or of any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that were not described and filed as
required.
(vii) Neither the filing of the Registration Statement or any amendment
nor the execution and performance of this Agreement, the Indenture, the Trust
Agreement or the Guarantee Agreement, nor the consummation of the transactions
contemplated herein or therein, to the best of such counsel's knowledge, will
contravene any of the provisions of, or result in a default under (nor, to the
best of such counsel's knowledge, has any event occurred which with notice or
lapse of time, or both, would constitute a breach or default under), any
Obligations and Instruments to which the Trust or the Company is a party or by
which their property is bound (except for such contravention or default which
would not have a Material Adverse Effect), or violate any of the provisions of
the charter or by-laws of the Company or the Certificate of Trust of the Trust,
or violate any Laws known to such counsel.
(viii) Neither the Trust, the Company nor any Subsidiary is an
"investment company" or a company controlled by an "investment company" within
the meaning of the Investment Company Act.
(ix) The statements in the Prospectus under the caption "Description
of Trust Preferred Securities," "Description of Junior Subordinated Debentures,"
"Description of Guarantee" and
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"Relationship among the Trust Preferred Securities, the Junior
Subordinated Debentures and the Guarantee," insofar as such statements
constitute matters of law applicable to the Offerors or summaries of
documents, fairly present the information required to be included
therein in all material respects.
(x) All of the issued and outstanding Common Securities of
the Trust are owned by the Company, free and clear of any security
interest mortgage, pledge, lien, encumbrance, claim or equitable right.
(xi) The Trust Agreement has been duly qualified under the
Trust Indenture Act.
(xii) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all Senior and Subordinated Debt (as
defined in the Indenture) of the Company.
(xiii) No Tax Event, Capital Treatment Event or Investment
Company Event (each as defined in the Indenture) has occurred.
(xiv) The statements set forth in the Prospectus under the
caption "Certain Federal Income Tax Consequences" constitute an
accurate summary of the matters addressed therein, subject to the
limitations and based upon current law and the assumptions stated or
referred to therein.
(xv) To the best of such counsel's knowledge and information
after due inquiry, the Trust is not required to be authorized to do
business in any other jurisdiction, and the Trust is not a party to or
otherwise bound by any agreement other than those described in the
Prospectus.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Offerors,
representatives of the independent public accountants of the Company and
representatives of the Underwriters and their counsel, at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus (except as set forth
above) and has not made any independent check or verification thereof, on the
basis of the foregoing (relying as to materiality upon
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the statements of officers and other representatives of the Company), no facts
have come to such counsel's attention that lead such counsel to believe that
either the Registration Statement or any amendment (including any
post-effective amendment) thereto at the time such Registration Statement or
amendment became effective, and as of the Closing Date and any
applicable Option Closing Date, contained or contains an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that the
Prospectus or any amendment or supplement thereto as of their respective dates
and as of the Closing Date and any applicable Option Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that such counsel need express no opinion with respect
to the financial statements, schedules and other financial data included in
the Registration Statement or the Prospectus.
(g) You shall have received an opinion (satisfactory to you and your
counsel) dated the Closing Date or the Option Closing Date, as the case may be,
of White & Case, counsel for the Property Trustee under the Trust Agreement,
the Indenture Trustee under the Indenture and the Guarantee Trustee under the
Guarantee Agreement, to the effect that:
(i) Bankers Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation with trust powers
under the laws of the State of New York.
(ii) The Indenture Trustee has the requisite power and
authority to execute, deliver and perform its obligations under the
Indenture and has taken all necessary corporate action to authorize
the execution, delivery and performance by it of the Indenture.
(iii) The Guarantee Trustee has the requisite power and
authority to execute, deliver and perform its obligations under the
Guarantee Agreement and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of the
Guarantee Agreement.
(iv) The Property Trustee has the requisite power and
authority to execute, deliver and perform its obligations under the
Trust
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Agreement and has taken all necessary corporate action to authorize
the execution and delivery of the Indenture.
(v) Each of the Indenture and the Guarantee Agreement has
been duly executed and delivered by the Indenture Trustee and the
Guarantee Trustee, respectively, and constitutes a legal, valid and
binding obligation of the Indenture Trustee and the Guarantee
Trustee, respectively, enforceable against the Indenture Trustee and
the Guarantee Trustee, respectively, in accordance with their
respective terms, except that certain payment obligations may be
enforceable solely against the assets of the Trust and except that
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, fraudulent conveyance and
transfer or other similar laws affecting the enforcement of
creditors' rights generally, and by principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and by the effect of
applicable public policy on the enforceability of provisions relating
to indemnification or contribution.
(vi) The Junior Subordinated Debentures delivered on the
Closing Date have been duly authenticated by the Indenture Trustee in
accordance with the terms of the Indenture.
(h) You shall have received an opinion (satisfactory to you and your
counsel) dated the Closing Date or the Option Closing Date, as the case may be,
of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇, special Delaware counsel for the Offerors,
to the effect that:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act, and all
filings required as of the date hereof under the Delaware Act with
respect to the creation and valid existence of the Trust as a business
trust have been made, except to the extent that enforcement thereof
may be limited by (A) bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and remedies, (B) general principles of equity
(regardless of whether considered and applied in a proceeding in
equity or at law), and (C) considerations of public policy and the
effect of applicable law relating to fiduciary duties.
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(ii) Under the Trust Agreement and the Delaware Act, the
Trust has the trust power and authority to own property and to
conduct its business, all as described in the Prospectus.
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company and each of the Property Trustee and the
Administrative Trustees, and is enforceable against the Company and
each of the Property Trustee and the Administrative Trustees in
accordance with its terms.
(iv) Under the Trust Agreement and the Delaware Act, the
Trust has the trust power and authority (i) to execute and deliver,
and to perform its obligations under, this Agreement, and (ii) to
issue, and to perform its obligations under, the Securities and the
Common Securities.
(v) Under the Trust Agreement and the Delaware Act, the
execution and delivery by the trust of this Agreement, and the
performance by it of its obligations hereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
(vi) The Securities have been duly authorized for issuance
by the Trust Agreement and, when issued, delivered and paid for in
accordance with the terms of the Trust Agreement and this Agreement
and as described in the Prospectus, will be validly issued and
(subject to the qualifications set forth in the last sentence of this
subsection (vi)) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust. The holders of the Securities
will be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; provided that such
opinion need not address the liability of any holder of a Security
that is, was or becomes a named trustee of the Trust. Such opinion
may note that the holders of the Securities may be required to make
payment or provide indemnity or security as set forth in the Trust
Agreement.
(vii) The Common Securities have been duly authorized for
issuance by the Trust Agreement and, when issued, delivered and paid
for in accordance with the terms of the Trust Agreement and as
described in the Prospectus, will be validly issued and (subject to
the qualifications set forth in the next sentence) fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust.
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35
Such opinion may note that the holders of the Common Securities may be
required to make payment or provide indemnity or security as set forth
in the Trust Agreement.
(viii) Under the Trust Agreement and the Delaware Act, the
issuance of the Securities and the Common Securities is not subject to
preemptive rights.
(ix) The issuance and sale by the Trust of the Securities and
the Common Securities, the purchase by the Trust of the Junior
Subordinated Debentures, the execution, delivery and performance by
the Trust of this Agreement, consummation by the Trust of the
transactions contemplated by this Agreement and compliance by the
Trust with its obligations under this Agreement do not violate (A) any
of the provisions of the Certificate of Trust or the Trust Agreement,
or (B) any applicable Delaware law or administrative regulation.
(i) You shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date or
the Option Closing Date, as the case may be, in form and substance reasonably
satisfactory to you.
(j) You shall have received, in connection with the execution of this
Agreement and on the Closing Date and each Option Closing Date, a "cold
comfort" letter from ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ and Company LLP,
dated as of each such date in form and substance satisfactory to you with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(k) You shall have received from the Company a certificate, signed by
the Chief Executive Officer and Chief Financial Officer of the Company,
addressed to the Underwriters and dated the Closing Date or Option Closing
Date, as applicable, to the effect that:
(i) such officer does not know of any Proceedings instituted,
threatened or contemplated against the Company of a character required
to be disclosed in the Prospectus that are not so disclosed, and such
officer does not know of any material contract required to be filed as
an exhibit to the Registration Statement which is not so filed:
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(ii) such officer has carefully examined the Registration
Statement and the Prospectus and all amendments or supplements thereto
and, in such officer's opinion, such Registration Statement or such
amendment as of its effective date and as of the Closing Date, and the
Prospectus or such supplement as of its date and as of the Closing
Date, did not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading and, in such officer's
opinion, since the effective date of the Registration Statement, no
event has occurred or information become known that should have been
set forth in an amendment to the Registration Statement or a
supplement to the Prospectus which has not been so set forth in such
amendment or supplement;
(iii) the representations and warranties of the Company set
forth in Section 6(a) of this Agreement are true and correct as of the
date of this Agreement and as of the Closing Date or the Option
Closing Date, as the case may be, and the Company has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date; and
(iv) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus
filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued, and, to the best knowledge of
the respective signers, no proceedings for that purpose have been
instituted or are pending or contemplated under the Act.
The delivery of the certificate provided for in this subparagraph shall be
and constitute a representation and warranty of the Company as to the facts
required in the immediately foregoing clauses (iii) and (iv) of this
subparagraph to be set forth in said certificate.
(1) You shall have received from the Trust a certificate, signed by
the Administrative Trustees, addressed to the Underwriters and dated the Closing
Date or Option Closing Date, as applicable, to the effect that:
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(i) such officer has carefully examined the Registration
Statement and the Prospectus and all amendments or supplements thereto and,
in such officer's opinion, such Registration Statement or such amendment as
of its effective date and as of the Closing Date, and the Prospectus or
such supplement as of its date and as of the Closing Date, did not contain
an untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading and, in such officer's opinion, since the effective date of the
Registration Statement, no event has occurred or information become known
that should have been set forth in an amendment to the Registration
Statement or a supplement to the Prospectus which has not been so set forth
in such amendment or supplement;
(ii) the representations and warranties of the Trust set
forth in Section 6(a) of this Agreement are true and correct as of the
date of this Agreement and as of the Closing Date or the Option Closing
Date, as the case may be, and the Trust has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date; and
(iii) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus filed as
a part of the Registration Statement or any amendment thereto; no stop
order suspending the effectiveness of the Registration Statement has been
issued, and, to the best knowledge of the respective signers, no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
The delivery of the certificate provided for in this subparagraph shall be
and constitute a representation and warranty of the Company as to the facts
required in the immediately foregoing clauses (ii) and (iii) of this
subparagraph to be set forth in said certificate.
(m) You and your counsel shall have received on or before the Closing Date
or the Option Closing Date, as the case may be, such further documents,
opinions, certificates and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Offerors as you and they shall
have reasonably requested from the Offerors.
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9. Effective Date of Agreement, Termination and Defaults. This Agreement
shall become effective upon, and shall not be deemed delivered until, the later
of (i) execution of this Agreement and (ii) when notification of the
effectiveness of the Registration Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date and
any exercise of the option to purchase Additional Securities may be cancelled at
any time prior to any Option Closing Date by the Underwriters by written notice
to the Offerors if any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change or development involving a prospective
material adverse change in the condition, financial or otherwise, of the Company
and the Subsidiaries, taken as a whole, or the earnings, affairs, management, or
business of the Company and the Subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, that would, in your sole judgment,
make it impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus, (ii) any outbreak or escalation of hostilities
or other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States that, in your sole
judgment, is material and adverse and would, in your sole judgment, make it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus, (iii) the suspension or material limitation of
trading in securities on the Nasdaq, (iv) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority that in your opinion materially and
adversely affects, or will materially and adversely affect, the business or
operations of the Company and the Subsidiaries, taken as a whole, (v) the
declaration of a banking moratorium by either federal or Delaware state
authorities, (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs that in your
opinion has a material adverse effect on the financial markets in the United
States or (vii) any change in financial markets or in political, economic or
financial conditions which, in your opinion, either renders it impracticable or
inadvisable to proceed with the offering and sale of the Securities on the terms
set forth in the Prospectus or materially adversely affects the market for the
Securities.
If on the Closing Date or on any Option Closing Date, as the case may be,
any of the Underwriters shall fail or refuse to purchase the Firm Securities or
Additional Securities, as the case may be, which it has agreed to purchase
hereunder on such date, and the aggregate number of Firm Securities or
Additional Securities, as the case may be, that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed, in the
aggregate, 20% of the total number of Securities that all Underwriters are
obligated to purchase on such date, each nondefaulting Underwriter shall be
obligated, in the proportion which the number of Firm
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Securities set forth opposite its name in Schedule I hereto bears to the total
number of Firm Securities or Additional Securities, as the case may be, that
all the nondefaulting Underwriters have agreed to purchase, or in such other
proportion as you may specify, to purchase the Firm Securities or Additional
Securities, as the case may be, that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the
Closing Date or on the Option Closing Date, as the case may be, any of the
Underwriters shall fail or refuse to purchase the Firm Securities or Additional
Securities, as the case may be, in an amount that exceeds, in the aggregate,
20% of the total number of the Securities, and arrangements satisfactory to you
and the Offerors for the purchase of such Securities are not made within 48
hours after such default, this Agreement shall terminate without liability on
the part of the non-defaulting Underwriters and the Offerors, except as
otherwise provided in this Section 9. In any such case that does not result in
termination of this Agreement, either you or the Offerors may postpone the
Closing Date or the Option Closing Date, as the case may be, for not longer
than seven (7) days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Offerors set forth in or made pursuant to
this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Securities, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any of the Underwriters or by or on behalf of the Offerors, (ii) acceptance of
the Securities and payment therefor hereunder or (iii) termination of this
Agreement. Notwithstanding any termination of this Agreement, the Company shall
be liable for and shall pay all expenses it has agreed to pay pursuant to
Section 5(1).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of, and shall be binding upon, the Offerors, the Underwriters,
any indemnified person referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
terms "successors and assigns" shall not include a purchaser of any of the
Securities from any of the several Underwriters merely because of such purchase.
10. Effectiveness of Registration Statement. You and the Offerors will use
your and their best efforts to cause the Registration Statement to become
effective, if it has not yet become effective, and to prevent the issuance of
any stop order
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suspending the effectiveness of the Registration Statement and, if such stop
order be issued, to obtain as soon as possible the lifting thereof.
11. Miscellaneous. All communications hereunder will be in writing and, if
sent to the Underwriters will be mailed, delivered or telegraphed and confirmed
to you c/o EVEREN Securities, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Syndicate Department, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇; and if sent to the Company or
the Trust will be mailed, delivered or telegraphed and confirmed to the Company
or the Trust at the Company's corporate headquarters with a copy to Much Shelist
Freed ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Bell & ▇▇▇▇▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Trust and the several Underwriters, including you.
Very truly yours,
SUCCESS BANCSHARES, INC.
By:__________________________________
Name: _______________________________
Title: ______________________________
SUCCESS CAPITAL TRUST I
By:__________________________________
Name: _______________________________
Title: ______________________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
EVEREN Securities, Inc.
Acting as Representative of the
several Underwriters named in Schedule 1.
By: EVEREN Securities, Inc.
By:__________________________________
Name: _______________________________
Title: ______________________________
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SCHEDULE I
Number of
Firm Securities
to be
Underwriter Purchased
EVEREN Securities, Inc....................... 1,200,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated.................. 300,000
----------
TOTAL 1,500,000
==========
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SCHEDULE 11
The Company currently owns 92% of the outstanding common stock of the Bank.
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