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▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇
DRAFT OF JUNE 7, 1999
TEAM FINANCIAL, INC.
1,000,000 SHARES COMMON STOCK*
UNDERWRITING AGREEMENT
June __, 1999
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc.
As Representative of the several Underwriters
named in Schedule A
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Section 1. Introductory. Team Financial, Inc. (the "Company"), a bank
holding company, has an authorized capital stock consisting of 10,000,000 shares
of Preferred Stock, none of which were outstanding as of June __, 1999, and
50,000,000 shares of Common Stock ("Common Stock"), of which ____________ shares
were outstanding as of such date. The Company proposes to issue and sell 700,000
shares of its authorized but unissued Common Stock and a shareholder of the
Company (referred to as the "Selling Shareholder" and named in Schedule B)
proposes to sell 300,000 shares of the Company's issued and outstanding Common
Stock to the several underwriters named in Schedule A, as it may be amended by
the Pricing Agreement hereinafter defined (the "Underwriters"), who are acting
severally and not jointly. Collectively, such total of 1,000,000 shares of
Common Stock proposed to be sold by the Company and the Selling Shareholder is
hereinafter referred to as the "Firm Shares." In addition, the Company proposes
to grant to the Underwriters an option to purchase up to 150,000 additional
shares of Common Stock ("Option Shares") as provided in Section 5 hereof. The
Firm Shares and, to the extent such option is exercised, the Option Shares, are
hereinafter collectively referred to as the "Shares."
You have advised the Company and the Selling Shareholder that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon as you deem advisable after the registration statement
hereinafter referred to becomes effective, if it has not yet become effective,
and after the Pricing Agreement hereinafter defined has been executed and
delivered.
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company, the Selling Shareholder and the Representative,
acting on behalf of the several Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto ("Pricing Agreement"). The Pricing
Agreement may take the form of an exchange of any standard form of written
communication between the Company, the Selling Shareholder and the
Representative and shall specify such applicable information as is indicated in
Exhibit A hereto.
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*Plus an option to acquire up to 150,000 additional shares to cover
overallotments.
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The offering of the Shares will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement.
The Company and the Selling Shareholder hereby confirm their agreements
with the Underwriters as follows:
Section 2. Representations and Warranties of the Company. The Company
represents and warrants to the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-76163)
and a related preliminary prospectus with respect to the Shares have
been prepared and filed with the Securities and Exchange Commission
("Commission") by the Company in conformity with the requirements of
the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "1933 Act;" unless
indicated to the contrary, all references herein to specific rules are
rules promulgated under the 1933 Act); and the Company has so prepared
and has filed such amendments thereto, if any, and such amended
preliminary prospectuses as may have been required to the date hereof,
and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. There have been or will
promptly be delivered to you three signed copies of such registration
statement and amendments, three copies of each exhibit filed therewith,
and conformed copies of such registration statement and amendments (but
without exhibits) and the related preliminary prospectus or
prospectuses and final forms of prospectus for each of the
Underwriters. Such registration statement (as amended, if applicable)
at the time it becomes effective and the prospectus constituting a part
thereof (including the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) and/or Rule 434), as from time to time amended
or supplemented, are hereinafter referred to as the "Registration
Statement," and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Underwriters by the Company
for use in connection with the offering of the Shares which differs
from the Prospectus on file at the Commission at the time the
Registration Statement became or becomes effective (whether or not such
revised prospectus is required to be filed by the Company pursuant to
Rule 424(b)), the term Prospectus shall refer to such revised
prospectus from and after the time it was provided to the Underwriters
for such use. If the Company elects to rely on Rule 434 of the 1933
Act, all references to "Prospectus" shall be deemed to include, without
limitation, the form of prospectus and the term sheet, taken together,
provided to the Underwriters by the Company in accordance with Rule 434
of the 1933 Act ("Rule 434 Prospectus"). Any registration statement
(including any amendment or supplement thereto or information which is
deemed part thereof) filed by the Company under Rule 462(b) ("Rule
462(b) Registration Statement") shall be deemed to be part of the
"Registration Statement" as defined herein, and any prospectus
(including any amendment or supplement thereto or information which is
deemed part thereof) included in such registration statement shall be
deemed to be part of the "Prospectus," as defined herein, as
appropriate. The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder are hereinafter
collectively referred to as the "Exchange Act."
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(b) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus, and each preliminary
prospectus has conformed in all material respects with the requirements
of the 1933 Act and, as of its date, has not included any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading; and when the
Registration Statement became or becomes effective, and at all times
subsequent thereto, up to the First Closing Date or the Second Closing
Date hereinafter defined, as the case may be, the Registration
Statement, including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule
430A(b), if applicable, and the Prospectus and any amendments or
supplements thereto, contained or will contain all statements that are
required to be stated therein in accordance with the 1933 Act and in
all material respects conformed or will in all material respects
conform to the requirements of the 1933 Act, and neither the
Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, included or will include any untrue statement of a
material fact or omitted or will omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company makes no representation
or warranty as to information contained in or omitted from any
preliminary prospectus, the Registration Statement, the Prospectus or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
any Underwriter through the Representative specifically for use in the
preparation thereof.
(c) The Company has been duly organized and is validly
existing and in good standing as a bank holding company within the
meaning of the Bank Holding Company Act of 1956, as amended ("BHCA"),
and is registered with the Board of Governors of the Federal Reserve
System ("FRB"). Except as otherwise noted in the financial statements,
the Company does not directly or indirectly own any stock or other
equity interest in excess of five percent (5%) in any corporation,
partnership, joint venture, unincorporated association or other entity
other than TeamBanc, N.A., ▇▇▇▇ Bank and Trust Company, First National
Bank and Trust Company and TeamBank Nebraska (collectively, the
"Banks") and Team Financial Acquisition Subsidiary, Inc. (the
"Acquisition") (the Banks, Acquisition and any other entities owned by
the Company being collectively referred to herein as the
"Subsidiaries"). Each Subsidiary has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own or lease its properties and conduct its business as
described in the Prospectus, and is duly qualified to transact business
in all jurisdictions in which the conduct of its business or its
ownership or leasing of property requires such qualification and the
failure so to qualify would have a material adverse effect on the
business or condition, financial or otherwise, of the Company and the
Subsidiaries, taken as a whole; and no proceeding of which the Company
has knowledge has been instituted in any such jurisdiction, revoking,
limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority or qualification. All outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, and are owned, directly or
indirectly, by the Company free and clear of all liens, encumbrances
and security interests, except as otherwise noted to you. Except as
provided in the
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Registration Statement, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or other rights to
convert any obligations into, shares of capital stock or ownership
interests in any of the Subsidiaries are outstanding.
(d) Except as disclosed in the Registration Statement, the
Company owns directly or indirectly 100 percent of the issued and
outstanding capital stock of each of its Subsidiaries, free and clear
of any claims, liens, encumbrances or security interests and all of
such capital stock has been duly authorized and validly issued and is
fully paid and nonassessable.
(e) The issued and outstanding shares of capital stock of the
Company as set forth in the Prospectus have been duly authorized and
validly issued, are fully paid and nonassessable, and conform to the
description thereof contained in the Prospectus.
(f) The Shares to be sold by the Company have been duly
authorized and when issued, delivered and paid for pursuant to this
Agreement, will be validly issued, fully paid and nonassessable, and
will conform to the description thereof contained in the Prospectus.
(g) The making and performance by the Company of this
Agreement and the Pricing Agreement have been duly authorized by all
necessary corporate action and will not violate any provision of the
Company's charter or bylaws and will not result in the breach, or be in
contravention, of any provision of any agreement, franchise, license,
indenture, mortgage, deed of trust, or other instrument to which the
Company or any subsidiary is a party or by which the Company, any
subsidiary or the property of any of them may be bound or affected, or
any order, rule or regulation applicable to the Company or any
subsidiary of any court or regulatory body, administrative agency or
other governmental body having jurisdiction over the Company or any
subsidiary or any of their respective properties, or any order of any
court or governmental agency or authority entered in any proceeding to
which the Company or any subsidiary was or is now a party or by which
it is bound. No consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental
body is required for the execution and delivery of this Agreement or
the Pricing Agreement or the consummation of the transactions
contemplated herein or therein, except for compliance with the 1933 Act
and blue sky laws applicable to the public offering of the Shares by
the several Underwriters and clearance of such offering with the
National Association of Securities Dealers, Inc. ("NASD"). This
Agreement has been duly executed and delivered by the Company.
(h) The accountants who have expressed their opinions with
respect to certain of the financial statements and schedules included
in the Registration Statement are independent accountants as required
by the 1933 Act.
(i) The financial statements, together with the related notes
and schedules, contained in the Registration Statement and Prospectus
present fairly the consolidated financial position, results of
operations, shareholders' equity and cash flows of the
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Company and its consolidated Subsidiaries on the basis stated therein
at the indicated dates and for the indicated periods. Such financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of
results for such periods have been made, except as otherwise stated
therein. The selected financial and statistical data included in the
Registration Statement present fairly the information shown therein on
the basis stated in the Registration Statement and have been compiled
on a basis consistent with the financial statements presented therein.
(j) Neither the Company nor any Subsidiary is in violation of
its charter or in default under any consent decree, or in default with
respect to any material provision of any lease, loan agreement,
franchise, license, permit or other contract obligation to which it is
a party; and there does not exist any state of facts which constitutes
an event of default as defined in such documents or which, with notice
or lapse of time or both, would constitute such an event of default, in
each case, except for defaults which neither singly nor in the
aggregate are material to the Company and its Subsidiaries taken as a
whole.
(k) There are no material legal or governmental proceedings
pending, or to the Company's knowledge, threatened to which the Company
or any Subsidiary is or may be a party or of which material property
owned or leased by the Company or any Subsidiary is or may be the
subject, or related to environmental or discrimination matters which
are not disclosed in the Prospectus, or which question the validity of
this Agreement or the Pricing Agreement or any action taken or to be
taken pursuant hereto or thereto.
(l) There are no holders of securities of the Company having
rights to registration thereof or preemptive rights to purchase Common
Stock except as disclosed in the Prospectus. Holders of registration
rights have waived such rights with respect to the offering being made
by the Prospectus.
(m) The Company and each of its Subsidiaries have good and
marketable title to all the properties and assets reflected as owned in
the financial statements hereinabove described (or elsewhere in the
Prospectus), subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those, if any, reflected in such
financial statements (or elsewhere in the Prospectus) or which are not
material to the Company and its Subsidiaries taken as a whole. The
Company and each of its Subsidiaries hold their respective leased
properties which are material to the Company and its Subsidiaries taken
as a whole under valid and binding leases.
(n) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which
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 the Company to facilitate the sale or resale of the Shares.
(o) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or
supplemented, (A) there has not been
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any material adverse change, or any development involving a prospective
material adverse change, in or affecting the condition, financial or
otherwise, of the Company and the Subsidiaries taken as a whole, or the
business affairs, management, financial position, shareholders' equity
or results of operations of the Company and the Subsidiaries, taken as
a whole, whether or not occurring in the ordinary course of business,
(B) there has not been any transaction not in the ordinary course of
business entered into by the Company or any of the Subsidiaries which
is material to the Company and the Subsidiaries, taken as a whole,
other than transactions described or contemplated in the Registration
Statement, (C) the Company and the Subsidiaries have not incurred any
material liabilities or obligations, which are not in the ordinary
course of business or which could result in a material reduction in the
future earnings of the Company and the Subsidiaries, (D) the Company
and the Subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire,
flood, windstorm, accident or other calamity, whether or not covered by
insurance, (E) there has not been any change in the capital stock of
the Company or the Subsidiaries (other than upon the exercise of
options and warrants described in the Registration Statement), or any
material increase in the short-term or long-term debt (including
capitalized lease obligations) of the Company and the Subsidiaries,
taken as a whole, and (F) there has not been any declaration or payment
of any dividends or any distributions of any kind with respect to the
capital stock of the Company or the Subsidiaries other than any
dividends or distributions described or contemplated in the
Registration Statement.
(p) The Company agrees not to sell, contract to sell or
otherwise dispose of any Common Stock or securities convertible into
Common Stock (except Common Stock issued pursuant to currently
outstanding options, warrants or convertible securities) for a period
of 180 days after this Agreement becomes effective without the prior
written consent of the Representatives unless such disposition is
required by ERISA (as defined herein). The Company has obtained similar
agreements from each of its officers and directors who own Common Stock
and principal shareholders.
(q) There is no material document of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which is not
described or filed as required.
(r) The Company together with its Subsidiaries owns and
possesses all right, title and interest in and to, or has duly licensed
from third parties, all patents, patent rights, trade secrets,
inventions, know-how, trademarks, trade names, copyrights, service
marks and other proprietary rights ("Trade Rights") material to the
business of the Company and each of its Subsidiaries taken as a whole.
Neither the Company nor any of its Subsidiaries has received any notice
of infringement, misappropriation or conflict from any third party as
to such material Trade Rights which has not been resolved or disposed
of and neither the Company nor any of its subsidiaries has infringed,
misappropriated or otherwise conflicted with material Trade Rights of
any third parties, which infringement, misappropriation or conflict
would have a material adverse effect upon the condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries
taken as a whole.
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(s) The conduct of the business of the Company and each of
its Subsidiaries is in compliance in all respects with applicable
federal, state, local and foreign laws and regulations, except where
the failure to be in compliance would not have a material adverse
effect upon the condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole.
(t) All offers and sales of the Company's capital stock prior
to the date hereof were at all relevant times exempt from the
registration requirements of the 1933 Act and were duly registered with
or the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky laws.
(u) The Company has filed all necessary federal and state
income and franchise tax returns and has paid all taxes shown as due
thereon, and there is no tax deficiency that has been, or to the
knowledge of the Company might be, asserted against the Company or any
of its properties or assets that would or could be expected to have a
material adverse affect upon the condition (financial or otherwise) or
results of operations of the Company and its subsidiaries taken as a
whole.
(v) The Company has filed a registration statement pursuant
to Section 12(g) of the Exchange Act to register the Common Stock
thereunder, has filed an application to list the Shares on the Nasdaq
National Market, and has received notification that the listing has
been approved, subject to notice of issuance or sale of the Shares, as
the case may be.
(w) The Company is not, and does not intend to conduct its
business in a manner in which it would become, an "investment company"
as defined in Section 3(a) of the Investment Company Act of 1940, as
amended ("Investment Company Act").
(x) The deposit accounts of the Banks are insured by the
Federal Deposit Insurance Corporation (the "FDIC") to the fullest
extent provided by law. No proceeding for the termination of such
insurance is pending or is threatened. Neither the Company nor any
Subsidiary has received or is subject to any directive or order from
the FDIC or the FRB or any other regulatory authority to make any
material change in the method of conducting their respective businesses
that has not been complied with in all material respects.
(y) Neither the Company nor any of its affiliates does any
business, directly or indirectly, with the government of Cuba or with
any person or entity located in Cuba.
(z) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to records is permitted
only in accordance with management's general or specific authorization;
and (D) the recorded accountability for assets is
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compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(aa) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred
any liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(bb) No report or application filed by the Company or any of
its subsidiaries with the FDIC or the FRB, as of the date it was filed,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading when made or failed to comply with
the applicable requirements of the FDIC or the FRB, as the case may be.
Section 3. Joint Representations, Warranties and Covenants of the
Company and the Selling Shareholder.
(a) The Company and the Selling Shareholder represent and
warrant to the Underwriters that:
(i) The Selling Shareholder has received a favorable
determination letter dated October 26, 1995, stating that the
document pursuant to which the Selling Shareholder was
operated at such time constitutes a valid employee stock
ownership plan and trust for purposes of Section 4975(e)(7) of
the Internal Revenue Code of 1986, as amended (the "Internal
Revenue Code"). An amendment and restatement of such document
was adopted on December 16, 1998 and will be submitted to the
Internal Revenue Service with a request for a favorable
determination letter thereon. Subject to any conforming
amendments that may be requested or required by the Internal
Revenue Service in connection with such submission, the
Selling Shareholder will be a valid employee stock ownership
plan and trust for purposes of Section 4975(e)(7) of the
Internal Revenue Code. Except as disclosed in Schedule D, the
plan has been administered in form and in operation in
compliance with all requirements of law and regulation
applicable thereto and no event has occurred which will or
could give rise to disqualification of such plan under
Section 401 of the Internal Revenue Code.
(ii) The duly appointed "investment manager" (as such
term is defined in Section 3(38) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) of the
Selling Shareholder has found and concluded that the execution
of this Agreement and the Pricing Agreement by the Selling
Shareholder and that the Selling Shareholders entering into
the transactions contemplated by this Agreement and the
Pricing Agreement are appropriate and consistent with the
investment manager's fiduciary responsibility requirements of
ERISA and that such contemplated transactions are exempt from
the prohibited transaction restrictions under ERISA and the
Internal Revenue Code.
(iii) Except as disclosed on Schedule E, the Selling
Shareholder has, and on the First Closing Date or the Second
Closing Date hereinafter defined, as the case may be, will
have, valid marketable title to the Shares proposed to be sold
by such Selling Shareholder hereunder on such date and full
right, power and authority to enter into this Agreement and
the Pricing Agreement and to sell,
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assign, transfer and deliver such Shares hereunder, free and
clear of all voting trust arrangements, liens, encumbrances,
equities, claims and community property rights; and upon
delivery of and payment for such Shares hereunder, the
Underwriters will acquire valid marketable title thereto, free
and clear of all voting trust arrangements, liens,
encumbrances, equities, claims and community property rights.
(iv) The Selling Shareholder has not taken and will
not take, directly or indirectly, any action designed to or
which might be reasonably expected to cause or result, under
the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(v) The Selling Shareholder further represents,
warrants and agrees that such Selling Shareholder has
deposited in custody, under a Custody Agreement ("Custody
Agreement") with ______________________________, as custodian
("Custodian"), certificates in negotiable form for the Shares
to be sold hereunder by the Selling Shareholder, for the
purpose of further delivery pursuant to this Agreement. The
Selling Shareholder agrees that the Shares to be sold by the
Selling Shareholder on deposit with the Custodian are subject
to the interests of the Company and the Underwriters, that the
arrangements made for such custody are to that extent
irrevocable, and that the obligations of the Selling
Shareholder hereunder and under the Custody Agreement shall
not be terminated except as provided in this Agreement or the
Custody Agreement by any act of the Selling Shareholder, by
operation of law, whether by the termination of the Selling
Shareholder, or by the occurrence of any other event. If the
Selling Shareholder should be terminated, or if any other
event should occur before the delivery of the Shares
hereunder, the documents evidencing Shares then on deposit
with the Custodian shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as
if such termination or other event had not occurred,
regardless of whether or not the Custodian shall have received
notice thereof. The Custodian has been authorized to receive
and acknowledge receipt of the proceeds of sale of the Shares
to be sold by the Selling Shareholder against delivery thereof
and otherwise act on behalf of the Selling Shareholder. The
Custody Agreement has been duly executed by the Selling
Shareholder and a copy thereof has been delivered to you.
(vi) Each preliminary prospectus, insofar as it has
related to the Selling Shareholder and, to the knowledge of
the Selling Shareholder in all other respects, as of its date,
has conformed in all material respects with the requirements
of the 1933 Act and, as of its date, has not included any
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein not
misleading; and the Registration Statement at the time of
effectiveness, and at all times subsequent thereto, up to the
First Closing Date, (1) such parts of the Registration
Statement and the Prospectus and any amendments or supplements
thereto as relate to the Selling Shareholder, and the
Registration Statement and the
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Prospectus and any amendments or supplements thereto, to the
knowledge of the Selling Shareholder in all other respects,
contained or will contain all statements that are required to
be stated therein in accordance with the 1933 Act and in all
material respects conformed or will in all material respects
conform to the requirements of the 1933 Act, and (2) neither
the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, as it relates to the Selling
Shareholder, and, to the knowledge of the Selling Shareholder
in all other respects, included or will include any untrue
statement of a material fact or omitted or will omit to state
any material fact required to be stated therein or necessary
to make the statements therein not misleading; provided that
neither clause (1) nor (2) shall have any effect if
information has been given by the Selling Shareholder to the
Company and the Representative in writing which would
eliminate or remedy any such untrue statement or omission.
(vii) The Selling Shareholder agrees not to sell,
contract to sell or otherwise dispose of any Common Stock for
a period of 180 days after this Agreement becomes effective
without the prior written consent of the Representative;
provided however, distributions of Common Stock are
permissible if such distributions or dispositions are made
under the normal operations of the Selling Shareholder.
In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Internal Revenue Code with respect to the Sale
of Shares by the Selling Shareholder, the Selling Shareholder agrees to deliver
to you prior to or on the First Closing Date, as hereinafter defined, a properly
completed and executed United States Treasury Department Form W-8 or W-9 (or
other applicable form of statement specified by Treasury Department regulations
in lieu thereof).
Section 4. Representations and Warranties of the Underwriters. The
Representative, on behalf of the several Underwriters, represents and warrants
to the Company and the Selling Shareholder that the information set forth (a) on
the cover page of the Prospectus with respect to price, underwriting discount
and terms of the offering and (b) under "Underwriting" in the Prospectus was
furnished to the Company by and on behalf of the Underwriters for use in
connection with the preparation of the Registration Statement and is correct and
complete in all material respects.
Section 5. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and the Selling Shareholder,
severally and not jointly, agree to sell to the Underwriters named in Schedule A
hereto, and the Underwriters agree, severally and not jointly, to purchase
700,000 Firm Shares from the Company and 300,000 Firm Shares from the Selling
Shareholder at the price per share set forth in the Pricing Agreement. The
obligation of each Underwriter to the Company shall be to purchase from the
Company that number of full shares which (as nearly as practicable, as
determined by you) bears to 700,000, the same proportion as the number of Shares
set forth opposite the name of such Underwriter in Schedule A hereto bears to
the total number of Firm Shares to be purchased by all Underwriters under this
Agreement.
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The obligation of each Underwriter to the Selling Shareholder shall be to
purchase from the Selling Shareholder the number of full shares which (as nearly
as practicable, as determined by you) bears to 300,000, the same proportion as
the number of Shares set forth opposite the name of such Underwriter in Schedule
A hereto bears to the total number of Firm Shares to be purchased by all
Underwriters under this Agreement. The initial public offering price and the
purchase price shall be set forth in the Pricing Agreement.
At 9:00 A.M., Chicago Time, on the fourth business day, if permitted
under Rule 15c6-1 under the Exchange Act, (or the third business day if required
under Rule 15c6-1 under the Exchange Act or unless postponed in accordance with
the provisions of Section 12) following the date the Registration Statement
becomes effective (or, if the Company has elected to rely upon Rule 430A, the
fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or
the third business day if required under Rule 15c6-1 under the Exchange Act)
after execution of the Pricing Agreement), or such other time not later than ten
business days after such date as shall be agreed upon by the Representative, the
Selling Shareholder and the Company, the Company and the Custodian will deliver
to you at the offices of counsel for the Underwriters or through the facilities
of The Depository Trust Company for the accounts of the several Underwriters,
certificates representing the Firm Shares to be sold by them, respectively,
against payment of the purchase price therefor by delivery of federal or other
immediately available funds, by wire transfer or otherwise, to the Company and
the Custodian. Such time of delivery and payment is herein referred to as the
"First Closing Date." The certificates for the Firm Shares so to be delivered
will be in such denominations and registered in such names as you request by
notice to the Company and the Custodian prior to 10:00 A.M., Chicago Time, on
the second business day preceding the First Closing Date, and will be made
available at the Company's expense for checking and packaging by the
Representative at 10:00 A.M., Chicago Time, on the business day preceding the
First Closing Date. Payment for the Firm Shares so to be delivered shall be made
at the time and in the manner described above at the offices of counsel for the
Underwriters.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of 150,000 Option
Shares, at the same purchase price per share to be paid for the Firm Shares, for
use solely in covering any overallotments made by the Underwriters in the sale
and distribution of the Firm Shares. The option granted hereunder may be
exercised at any time (but not more than once) within 30 days after the date of
the initial public offering upon notice by you to the Company setting forth the
aggregate number of Option Shares as to which the Underwriters are exercising
the option, the names and denominations in which the certificates for such
shares are to be registered and the time and place at which such certificates
will be delivered. Such time of delivery (which may not be earlier than the
First Closing Date), being herein referred to as the "Second Closing Date,"
shall be determined by you, but if at any time other than the First Closing
Date, shall not be earlier than three nor later than 10 full business days after
delivery of such notice of exercise. The number of Option Shares to be purchased
by each Underwriter shall be determined by multiplying the number of Option
Shares to be sold by the Company pursuant to such notice of exercise by a
fraction, the numerator of which is the number of Firm Shares to be purchased by
such Underwriter as set forth opposite its name in Schedule A and the
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denominator of which is the total number of Firm Shares (subject to such
adjustments to eliminate any fractional share purchases as you in your absolute
discretion may make). Certificates for the Option Shares will be made available
at the Company's expense for checking and packaging at 10:00 A.M., Chicago Time,
on the business day preceding the Second Closing Date. The manner of payment for
and delivery of the Option Shares shall be the same as for the Firm Shares as
specified in the preceding paragraph.
You have advised the Company and the Selling Shareholder that each
Underwriter has authorized you to accept delivery of its Shares, to make payment
and to receipt therefor. You, individually and not as the Representative of the
Underwriters, may make payment for any Shares to be purchased by any Underwriter
whose funds shall not have been received by you by the First Closing Date or the
Second Closing Date, as the case may be, for the account of such Underwriter,
but any such payment shall not relieve such Underwriter from any obligation
hereunder.
Section 6. Covenants of the Company. The Company covenants and agrees
that:
(a) The Company will advise you and the Selling Shareholder
promptly of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the institution
of any proceedings for that purpose, or of any notification of the
suspension of qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceedings for that purpose,
and will also advise you and the Selling Shareholder promptly of any
request of the Commission for amendment or supplement of the
Registration Statement, of any preliminary prospectus or of the
Prospectus, or for additional information.
(b) The Company will give you and the Selling Shareholder
notice of its intention to file or prepare any amendment to the
Registration Statement (including any post-effective amendment) or any
Rule 462(b) Registration Statement or any amendment or supplement to
the Prospectus (including any revised prospectus which the Company
proposes for use by the Underwriters in connection with the offering of
the Shares which differs from the prospectus on file at the Commission
at the time the Registration Statement became or becomes effective,
whether or not such revised prospectus is required to be filed pursuant
to Rule 424(b) and any term sheet as contemplated by Rule 434) and will
furnish you and the Selling Shareholder with copies of any such
amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which you or
counsel for the Underwriters shall reasonably object.
(c) If the Company elects to rely on Rule 434 of the 1933 Act,
the Company will prepare a term sheet that complies with the
requirements of Rule 434. If the Company elects not to rely on Rule
434, the Company will provide the Underwriters with copies of the form
of prospectus, in such numbers as the Underwriters may reasonably
request, and file with the Commission such prospectus in accordance
with Rule 424(b) of the 1933 Act by the close of business in New York
City on the second business day immediately succeeding the date of the
Pricing Agreement. If the Company elects to rely
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on Rule 434, the Company will provide the Underwriters with copies of
the form of Rule 434 Prospectus, in such numbers as the Underwriters
may reasonably request, by the close of business in New York on the
business day immediately succeeding the date of the Pricing Agreement.
(d) If at any time when a prospectus relating to the Shares is
required to be delivered under the 1933 Act any event occurs as a
result of which the Prospectus, including any amendments or
supplements, would include an untrue statement of a material fact, or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus, including any amendments
or supplements thereto and including any revised prospectus which the
Company proposes for use by the Underwriters in connection with the
offering of the Shares which differs from the prospectus on file with
the Commission at the time of effectiveness of the Registration
Statement, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) to comply with the 1933 Act, the Company
promptly will advise you thereof and will promptly prepare and file
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance; and, in case any Underwriter is required to deliver a
prospectus nine months or more after the effective date of the
Registration Statement, the Company upon request, but at the expense of
such Underwriter, will prepare promptly such prospectus or prospectuses
as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the 1933 Act.
(e) Neither the Company nor any of its Subsidiaries will,
prior to the earlier of the Second Closing Date or termination or
expiration of the related option, incur any 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.
(f) Neither the Company nor any of its Subsidiaries will
acquire any capital stock of the Company prior to the earlier of the
Second Closing Date or termination or expiration of the related option
nor will the Company declare or pay any dividend or make any other
distribution upon the Common Stock payable to shareholders of record on
a date prior to the earlier of the Second Closing Date or termination
or expiration of the related option, except in either case as
contemplated by the Prospectus; provided, however, nothing herein shall
preclude the Selling Shareholder from purchasing Common Stock from
distributees pursuant to the exercise by such distributees of the put
option described in the document pursuant to which the Selling
Shareholder operates.
(g) The Company will make generally available to its
shareholders, as soon as it is practicable to do so, but in any event
not later than 18 months after the effective date of the Registration
Statement, an earnings statement (which need not be audited) in
reasonable detail, covering a period of at least 12 consecutive months
beginning after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 thereunder and will advise you in writing when
such statement has been so made available.
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(h) During such period as a prospectus is required by law to
be delivered in connection with offers and sales of the Shares by an
Underwriter or dealer, the Company will furnish to you at its expense,
subject to the provisions of subsection (d) hereof, copies of the
Registration Statement, the Prospectus, each preliminary prospectus and
all amendments and supplements to any such documents in each case as
soon as available and in such quantities as you may reasonably request,
for the purposes contemplated by the 1933 Act.
(i) The Company will cooperate with the Underwriters in
qualifying or registering the Shares for sale under the blue sky laws
of such jurisdictions as you designate, and will continue such
qualifications in effect so long as reasonably required for the
distribution of the Shares. The Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any such jurisdiction where it is not currently
qualified or where it would be subject to taxation as a foreign
corporation.
(j) During the period of five years hereafter, the Company
will furnish you and each of the other Underwriters with a copy (i) as
soon as practicable after the filing thereof, of each report filed by
the Company with the Commission, any securities exchange or the NASD;
(ii) as soon as practicable after the release thereof, of each material
press release in respect of the Company; and (iii) as soon as
available, of each report of the Company mailed to shareholders.
(k) The Company will use the net proceeds received by it from
the sale of the Shares being sold by it in the manner specified in the
Prospectus.
(l) If, at the time of effectiveness of the Registration
Statement, any information shall have been omitted therefrom in
reliance upon Rule 430A and/or Rule 434, then immediately following the
execution of the Pricing Agreement, the Company will prepare, and file
or transmit for filing with the Commission in accordance with such Rule
430A, Rule 424(b) and/or Rule 434, copies of an amended Prospectus, or,
if required by such Rule 430A and/or Rule 434, a post-effective
amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted. If required, the
Company will prepare and file, or transmit for filing, a Rule 462(b)
Registration Statement not later than the date of the execution of the
Pricing Agreement. If a Rule 462(b) Registration Statement is filed,
the Company shall make payment of, or arrange for payment of, the
additional registration fee owing to the Commission required by Rule
111.
(m) The Company will comply with all registration, filing and
reporting requirements of the Exchange Act and the Nasdaq National
Market.
Section 7. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, the Company agrees to pay (i) all costs,
fees and expenses (other than legal fees and disbursements of counsel for the
Underwriters and the expenses incurred by the Underwriters)
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incurred in connection with the performance of the Company's and the Selling
Shareholder's obligations hereunder, including without limiting the generality
of the foregoing, all fees and expenses of legal counsel for the Company and of
the Company's independent accountants, all costs and expenses incurred in
connection with the preparation, printing, filing and distribution of the
Registration Statement, each preliminary prospectus and the Prospectus
(including all exhibits and financial statements) and all amendments and
supplements provided for herein, this Agreement, the Pricing Agreement and the
Blue Sky Memorandum, (ii) all costs, fees and expenses (including legal fees not
to exceed $3,000 and disbursements of counsel for the Underwriters) incurred by
the Underwriters in connection with qualifying or registering all or any part of
the Shares for offer and sale under blue sky laws, including the preparation of
a blue sky memorandum relating to the Shares and clearance of such offering with
the NASD; and (iii) all fees and expenses of the Company's transfer agent and
the Custodian, printing of the certificates for the Shares and all transfer
taxes, if any, with respect to the sale and delivery of the Shares to the
several Underwriters.
Section 8. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
on the First Closing Date and the Option Shares on the Second Closing Date shall
be subject to the accuracy of the representations and warranties on the part of
the Company and the Selling Shareholder herein set forth as of the date hereof
and as of the First Closing Date or the Second Closing Date, as the case may be,
to the accuracy of the statements of officers of the Company made pursuant to
the provisions hereof, to the performance by the Company and the Selling
Shareholder of their respective obligations hereunder, and to the following
additional conditions:
(a) The Registration Statement shall have become effective
either prior to the execution of this Agreement or not later than 1:00
P.M., Chicago Time, on the first full business day after the date of
this Agreement, or such later time as shall have been consented to by
you but in no event later than 1:00 P.M., Chicago Time, on the third
full business day following the date hereof; and prior to the First
Closing Date or the Second Closing Date, as the case may be, no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or shall be pending or, to the knowledge of the Company, the
Selling Shareholder or you, shall be contemplated by the Commission. If
the Company has elected to rely upon Rule 430A and/or Rule 434, the
information concerning the initial public offering price of the Shares
and price-related information shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed
period and the Company will provide evidence satisfactory to the
Representative of such timely filing (or a post-effective amendment
providing such information shall have been filed and declared effective
in accordance with the requirements of Rules 430A and 424(b)). If a
Rule 462(b) Registration Statement is required, such Registration
Statement shall have been transmitted to the Commission for filing and
become effective within the prescribed time period and, prior to the
First Closing Date, the Company shall have provided evidence of such
filing and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the
blue sky laws of such states as shall have been specified by the
Representative.
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(c) The legality and sufficiency of the authorization,
issuance and sale or transfer and sale of the Shares hereunder, the
validity and form of the certificates representing the Shares, the
execution and delivery of this Agreement and the Pricing 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.
(d) You shall not have advised the Company and the Selling
Shareholder that the Registration Statement or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of fact,
which, in the opinion of counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or necessary to make the
statements therein not misleading.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly the
business or properties of the Company or its Subsidiaries, whether or
not arising in the ordinary course of business, which, in the judgment
of the Representative, makes it impractical or inadvisable to proceed
with the public offering or purchase of the Shares as contemplated
hereby.
(f) There shall have been furnished to you, as Representative
of the Underwriters, on the First Closing Date or the Second Closing
Date, as the case may be, except as otherwise expressly provided below:
(i) An opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., Denver,
Colorado, counsel for the Company, addressed to the
Underwriters and dated the First Closing Date or the Second
Closing Date, as the case may be, to the effect that:
(1) the Registration Statement has become
effective under the 1933 Act, and, to the best
knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under
the 1933 Act, and the Registration Statement
(including the information deemed to be part of the
Registration Statement at the time of effectiveness
pursuant to Rule 430A(b) and/or Rule 434, 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 1933 Act; such
counsel have no reason to believe that either the
Registration Statement (including the information
deemed to be part of the Registration Statement at
the time of effectiveness pursuant to Rule 430A(b)
and/or Rule 434, if applicable) or the Prospectus, or
the Registration Statement or the Prospectus as
amended or supplemented (except as aforesaid), as of
their respective effective or issue dates,
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contained any untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Prospectus as
amended or supplemented, if applicable, as of the
First Closing Date or the Second Closing Date, as the
case may be, contained any untrue statement of a
material fact or omitted to state any material fact
necessary to make the statements therein not
misleading in light of the circumstances under which
they were made; the statements in the Registration
Statement and the Prospectus summarizing statutes,
rules and regulations are accurate and fairly and
correctly present the information required to be
presented by the 1933 Act or the rules and
regulations thereunder, in all material respects and
such counsel does not know of any statutes, rules and
regulations required to be described or referred to
in the Registration Statement or the Prospectus that
are not described or referred to therein as required;
and such counsel does not know of any legal or
governmental proceedings pending or threatened
required to be described in the Prospectus which are
not described as required, nor of any contracts or
documents of a character required to be described in
the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which
are not described or filed, as required;
(2) the statements under the captions
"Management - Executive Compensation - Compensation,"
"Related Party Transactions," "Description of Capital
Stock" and "Shares Eligible for Future Sale" in the
Prospectus, insofar as such statements constitute a
summary of documents referred to therein or matters
of law, are accurate summaries and fairly and
correctly present, in all material respects, the
information called for with respect to such documents
and matters;
(3) this Agreement and the Pricing
Agreement and the performance of the Company's
obligations hereunder have been duly authorized by
all necessary corporate action and this Agreement and
the Pricing Agreement have been duly executed and
delivered by and on behalf of the Company, and are
legal, valid and binding agreements of the Company,
enforceable in accordance with their respective
terms, except as enforceability of the same may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors'
rights and by the exercise of judicial discretion in
accordance with general principles applicable to
equitable and similar remedies and except as to those
provisions relating to indemnities for liabilities
arising under the 1933 Act as to which no opinion
need be expressed; and no approval, authorization or
consent of any public board, agency, or
instrumentality of the United States or of any state
or other jurisdiction is necessary in connection with
the issue or sale of the Shares by the Company
pursuant to this Agreement (other than under the 1933
Act, applicable blue sky laws
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and the rules of the NASD) or the consummation by the
Company of any other transactions contemplated
hereby;
(4) the execution and performance of this
Agreement will not contravene any of the provisions
of, or result in a default under, any agreement,
franchise, license, indenture, mortgage, deed of
trust, or other instrument known to such counsel, of
the Company or any of its subsidiaries or by which
the property of any of them is bound and which
contravention or default would be material to the
Company and its subsidiaries taken as a whole; or
violate any of the provisions of the charter or
bylaws of the Company or any of its Subsidiaries or,
so far as is known to such counsel, violate any
statute, order, rule or regulation of any regulatory
or governmental body having jurisdiction over the
Company or any of its Subsidiaries;
(5) to such counsel's knowledge, all offers
and sales of the Company's capital stock since
January 1, 1996 were at all relevant times exempt
from the registration requirements of the 1933 Act
and were duly registered or the subject of an
available exemption from the registration
requirements of the applicable state securities or
blue sky laws; and
(6) the Company is not an "investment
company" or a person "controlled by" an "investment
company" within the meaning of the Investment Company
Act.
In rendering such opinion, such counsel may state
that they are relying upon the certificate of American
Securities Transfer & Trust, Inc., the transfer agent for the
Common Stock, as to the number of shares of Common Stock at
any time or times outstanding, and that insofar as their
opinion under clause (1) above relates to the accuracy and
completeness of the Prospectus and Registration Statement, it
is based upon a general review with the Company's
representatives and independent accountants of the information
contained therein, without independent verification by such
counsel of the accuracy or completeness of such information.
Such counsel may also rely upon the opinions of other
competent counsel and, as to factual matters, on certificates
of the Selling Shareholders and of officers of the Company and
of state officials, in which case their opinion is to state
that they are so doing and copies of said opinions or
certificates are to be attached to the opinion unless said
opinions or certificates (or, in the case of certificates, the
information therein) have been furnished to the
Representatives in other form.
(ii) An opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, ▇▇▇▇▇, Kansas, banking counsel for the Company, dated
the First Closing Date or the Second Closing Date, as the case
may be, addressed to the Underwriters, to the effect that:
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(1) the Company has been duly incorporated
and is validly existing in good standing as a unitary
thrift holding company under BHCA with corporate
power and authority to own its properties and conduct
its business as described in the Prospectus; and the
Company has been duly qualified to do business as a
foreign corporation under the corporation law of, and
is in good standing as such in, every jurisdiction
where the ownership or leasing of property, or the
conduct of its business requires such qualification
except where the failure so to qualify would not have
a material adverse effect upon the condition
(financial or otherwise) or results of operations of
the Company and its Subsidiaries taken as a whole;
(2) an opinion to the same general effect
as clause (1) of this subparagraph (i) in respect of
each direct and indirect Subsidiary of the Company;
(3) all of the issued and outstanding
capital stock of each Subsidiary of the Company has
been duly authorized, validly issued and is fully
paid and nonassessable, and, except as disclosed in
the Registration Statement, the Company owns directly
or indirectly 100 percent of the outstanding capital
stock of each Subsidiary, and to the best knowledge
of such counsel, such stock is owned free and clear
of any claims, liens, encumbrances or security
interests;
(4) the authorized capital stock of the
Company, of which there is outstanding the amount set
forth in the Registration Statement and Prospectus
(except for subsequent issuances, if any, pursuant to
stock options or other rights referred to in the
Prospectus), conforms as to legal matters in all
material respects to the description thereof in the
Registration Statement and Prospectus;
(5) the issued and outstanding capital
stock of the Company has been duly authorized and
validly issued and is fully paid and nonassessable;
(6) the certificates for the Shares to be
delivered hereunder are in due and proper form, and
when duly countersigned by the Company's transfer
agent and delivered to you or upon your order against
payment of the agreed consideration therefor in
accordance with the provisions of this Agreement and
the Pricing Agreement, the Shares represented thereby
will be duly authorized and validly issued, fully
paid and nonassessable;
(7) the Banks have been duly chartered to
conduct the business of banking in its state of
domicile and the Company has all necessary power and
authority to own the Banks. The Company and the Banks
have all necessary consents and approvals under
applicable federal and state laws and regulations
relating to thrifts and thrift holding companies
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("banking laws") to own their respective assets and
carry on their respective businesses as currently
conducted;
(8) the statements in the Prospectus under
the captions "Supervision and Regulation" insofar as
such statements constitute a summary of banking laws,
are accurate summaries and fairly present the
information called for with respect to such matters;
(9) such counsel knows of no legal or
governmental proceeding, pending or threatened,
before any court or administrative body or regulatory
agency, to which the Company or any of the
Subsidiaries is a party or to which any of the
properties of the Company or any of the Subsidiaries
is subject that are required to be described in the
Registration Statement or Prospectus and are not so
described, or statutes or regulations that are
required to be described in the Registration
Statement or the Prospectus that are not so
described;
(10) the execution and delivery of this
Agreement and the Pricing Agreement and the
consummation of the transactions herein and therein
contemplated do not and will not conflict with or
result in a violation of or default under any banking
laws, or any permit, judgment, decree or order known
to such counsel, or any lease, contract, indenture,
mortgage, loan agreement or other agreement or other
instrument or obligation known to such counsel to
which the Company or the Banks are a party or by
which the Company or the Banks or any of their
respective properties is bound; and
(11) no approval, consent, order,
authorization, designation, declaration or filing by
or with any regulatory, administrative or other
governmental body under banking laws is necessary in
connection with the execution and delivery of this
Agreement and the Pricing Agreement and the
consummation of the transactions herein and therein
contemplated, except such as have been obtained or
made, specifying the same.
(iii) An opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.,
Overland Park, Kansas, counsel to the Selling Shareholder,
dated the First Closing Date or the Second Closing Date, as
the case may be, to the effect that:
(1) this Agreement and the Pricing
Agreement have been duly authorized, executed and
delivered by or on behalf of the Selling Shareholder;
the Custodian for the Selling Shareholder has been
duly and validly authorized to carry out all
transactions contemplated herein on behalf of such
Selling Shareholder; and the performance of this
Agreement and the Pricing Agreement and the
consummation of the transactions herein contemplated
by the Selling Shareholder will not result in a
breach or violation of any of the terms and
provisions of, or constitute a default
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under, any statute, any indenture, mortgage, deed of
trust, note agreement or other agreement or
instrument known to such counsel to which the Selling
Shareholder is a party or by which it is bound or to
which any of the property of the Selling Shareholder
is subject, or any order, rule or regulation known to
such counsel of any court or governmental agency or
body having jurisdiction over the Selling Shareholder
or any of its properties; and no consent, approval,
authorization or order of any court or governmental
agency or body is required for the consummation of
the transactions contemplated by this Agreement and
the Pricing Agreement in connection with the sale of
Shares to be sold by the Selling Shareholder
hereunder, except such as have been obtained under
the 1933 Act and such as may be required under
applicable blue sky laws in connection with the
purchase and distribution of such Shares by the
Underwriters and the clearance of such offering with
the NASD;
(2) the Selling Shareholder has full right,
power and authority to enter into this Agreement and
the Pricing Agreement and to sell, transfer and
deliver the Shares to be sold on the First Closing
Date or the Second Closing Date, as the case may be,
by the Selling Shareholder hereunder and good and
marketable title to such Shares so sold, free and
clear of all voting trust arrangements, liens,
encumbrances, equities, claims and community property
rights whatsoever, has been transferred to the
Underwriters (who counsel may assume to be bona fide
purchasers) who have purchased such Shares hereunder;
(3) this Agreement and the Pricing
Agreement are legal, valid and binding agreements of
the Selling Shareholder except as enforceability of
the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
affecting creditors' rights and by the exercise of
judicial discretion in accordance with general
principles applicable to equitable and similar
remedies and except with respect to those provisions
relating to indemnities for liabilities arising under
the 1933 Act, as to which no opinion need be
expressed; and
(4) the Selling Shareholder in form is a
valid employee stock ownership plan and trust for
purposes of Section 4975(e)(7) of the Internal
Revenue Code and the regulations promulgated
thereunder. The opinion above respecting the validity
of the plan and trust for purposes of Section
4975(e)(7) of the Internal Revenue Code are
conditioned on compliance in operation by the plan
and trust with Section 401(a) of the Internal Revenue
Code. The sale of Shares and the performance of the
other transactions contemplated by this Agreement and
the Pricing Agreement by the Selling Shareholder do
not constitute "prohibited transactions" under
Section 4975(c) of the Internal Revenue Code or
Section 406 of ERISA.
(iv) Such opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇,
Chicago, Illinois, counsel for the Underwriters, dated the
First Closing Date or the Second Closing Date, as the case may
be, with respect to the incorporation of the Company, the
validity of the Shares to be sold by the Company, the
Registration
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Statement and the Prospectus and other related matters as you
may reasonably require, and the Company shall have furnished
to such counsel such documents and shall have exhibited to
them such papers and records as they request for the purpose
of enabling them to pass upon such matters.
(v) A certificate of the chief executive officer and
the principal financial officer of the Company, dated the
First Closing Date or the Second Closing Date, as the case may
be, to the effect that:
(1) the representations and warranties of
the Company set forth in Section 2 of this Agreement
are true and correct as of the date of this Agreement
and as of the First Closing Date or the Second
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
(2) 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 1933 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 (1) and (2) of this subparagraph
to be set forth in said certificate.
(vi) A certificate of the Selling Shareholder dated
the First Closing Date to the effect that the representations
and warranties of such Selling Shareholder set forth in
Section 3 of this Agreement are true and correct as of such
date and the Selling Shareholder has complied with all the
agreements and satisfied all the conditions on the part of the
Selling Shareholder to be performed or satisfied at or prior
to such date.
(vii) At the time the Pricing Agreement is executed
and also on the First Closing Date or the Second Closing Date,
as the case may be, there shall be delivered to you a letter
addressed to you, as Representative of the Underwriters, from
KPMG LLP, independent accountants, the first one to be dated
the date of the Pricing Agreement, the second one to be dated
the First Closing Date and the third one (in the event of a
second closing) to be dated the Second Closing Date, to the
effect set forth in Schedule C. There shall not have been any
change or decrease specified in the letters referred to in
this subparagraph which makes it impractical or inadvisable in
the judgment of the Representative to proceed with the public
offering or purchase of the Shares as contemplated hereby.
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(viii) Such further certificates and documents as the
Representative may reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, counsel for the Underwriters, which approval shall not be
unreasonably withheld. The Company shall furnish you with such manually signed
or conformed copies of such opinions, certificates, letters and documents as you
request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at the First Closing Date is not so satisfied, this
Agreement at your election will terminate upon notification to the Company and
the Selling Shareholder without liability on the part of any Underwriter or the
Company or the Selling Shareholder, except for the expenses to be paid or
reimbursed by the Company pursuant to Sections 7 and 9 hereof and except to the
extent provided in Section 11 hereof.
Section 9. Reimbursement of Underwriters' Expenses. If the sale to the
Underwriters of the Shares on the First Closing Date is not consummated because
any condition of the Underwriters' obligations hereunder is not satisfied or
because of any refusal, inability or failure on the part of the Company or the
Selling Shareholder to perform any agreement herein or to comply with any
provision hereof, unless such failure to satisfy such condition or to comply
with any provision hereof is due to the default or omission of any Underwriter,
the Company agrees to reimburse you and the other Underwriters upon demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been reasonably incurred by you and them in connection
with the proposed purchase and the sale of the Shares. Any such termination
shall be without liability of any party to any other party except that the
provisions of this Section, Section 7 and Section 11 shall at all times be
effective and shall apply.
Section 10. Effectiveness of Registration Statement. You, the Company
and the Selling Shareholder will use your, its 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 suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
Section 11. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the 1933 Act or the Exchange Act against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the 1933 Act,
the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise (including in settlement of any litigation if such
settlement is effected with the written consent of the Company and/or the
Selling Shareholder, as the case may be), insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, including the information deemed to be
part of the Registration Statement at the time of effectiveness pursuant to Rule
430A and/or Rule 434, if applicable, any preliminary prospectus, the Prospectus,
or any amendment or supplement thereto, or arise out of
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or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and will reimburse each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that (i) any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representative, specifically for use therein; or (ii) if such statement or
omission was contained or made in any preliminary prospectus and corrected in
the Prospectus and (1) any such loss, claim, damage or liability suffered or
incurred by any Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Shares which
are the subject thereof from such Underwriter in the offering and (2) such
Underwriter failed to deliver or provide a copy of the Prospectus to such person
at or prior to the confirmation of the sale of such Shares in any case where
such delivery is required by the 1933 Act. In addition to their other
obligations under this Section 11(a), the Company agrees that, as an interim
measure during the pendency of any claim, action, investigation, inquiry or
other proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 11(a), it will
reimburse the Underwriters on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of the
Company's obligation to reimburse the Underwriters for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement, and the Selling Shareholder and each person, if any, who controls the
Company within the meaning of the 1933 Act or the Exchange Act, against any
losses, claims, damages or liabilities to which the Company, or any such
director, officer, Selling Shareholder or controlling person may become subject
under the 1933 Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in the Registration Statement, any
preliminary prospectus, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto in reliance
upon and in conformity with Section 4 of this Agreement or any other written
information furnished to the Company by such Underwriter through the
Representatives specifically for use in the preparation thereof; and will
reimburse
-24-
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any legal or other expenses reasonably incurred by the Company, or any such
director, officer, the Selling Shareholder or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action. In addition to their other obligations under this Section 11(b), the
Underwriters agree that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
this Section 11(b), they will reimburse the Company and the Selling Shareholder
on a monthly basis for all reasonable legal and other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the
Underwriters' obligation to reimburse the Company and the Selling Shareholder
for such expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(c) The Selling Shareholder will indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement, and the Underwriters and each person, if any, who controls the
Company or any Underwriter within the meaning of the 1933 Act or the Exchange
Act, against any losses, claims, damages or liabilities to which the Company, or
any such director, officer, any Underwriter or controlling person may become
subject under the 1933 Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Selling Shareholder), insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue or alleged
untrue statement of any material fact contained in the Registration Statement,
any preliminary prospectus, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto in reliance
upon the number of shares beneficially owned by the Selling Shareholder as set
forth in the "Principal Shareholders and Selling Shareholder" before the
offering and after the offering; and in conformity with Section 4 of this
Agreement or any other written information furnished to the Company by the
Selling Shareholder specifically for use in the preparation thereof; and will
reimburse any legal or other expenses reasonably incurred by the Company, or any
such director, officer, any Underwriter or controlling persons in connection
with investigating or defending any such loss, claim, damage, liability or
action. In addition to their other obligations under this Section 11(c), the
Selling Shareholder agrees that, as an interim measure during the pendency of
any claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 11(c), they will reimburse the Company and the
Underwriters on a monthly basis for all reasonable legal and other expenses
incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Selling
Shareholder's obligation to reimburse the Company and the Underwriters for such
expenses and the possibility that such payments might later be held to have been
improper by a court of competent jurisdiction. This
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indemnity agreement will be in addition to any liability which the Selling
Shareholder may otherwise have.
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent that
the indemnifying party was prejudiced by such failure to notify. In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or the indemnified and indemnifying parties may have
conflicting interests which would make it inappropriate for the same counsel to
represent both of them, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defense and otherwise to
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defense in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representative in the case of paragraph (a)
representing all indemnified parties not having different or additional defenses
or potential conflicting interest among themselves who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. 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 have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability arising out
of such proceeding.
(e) If the indemnification provided for in this Section is unavailable
to an indemnified party under paragraphs (a), (b) or (c) hereof in respect of
any losses, claims, damages or liabilities referred to therein, then each
applicable 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 or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company, the
Selling Shareholder and the
-26-
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Underwriters from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, the Selling Shareholder and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The respective relative benefits received by the
Company, the Selling Shareholder and the Underwriters shall be deemed to be in
the same proportion in the case of the Company and the Selling Shareholder, as
the total price paid to the Company and the Selling Shareholder for the Shares
by the Underwriters (net of underwriting discount but before deducting
expenses), and in the case of the Underwriters as the underwriting discount
received by them bears to the total of such amounts paid to the Company and the
Selling Shareholder and received by the Underwriters as underwriting discount in
each case as contemplated by the Prospectus. The relative fault of the Company,
the Selling Shareholder 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 to state a material fact relates to information
supplied by the Company, by the Selling Shareholder or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
The Company, the Selling Shareholder and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section,
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section are several in proportion to their
respective underwriting commitments and not joint.
(f) The provisions of this Section shall survive any termination of
this Agreement.
Section 12. Default of Underwriters. It shall be a condition to the
agreement and obligation of the Company and the Selling Shareholder to sell and
deliver the Shares hereunder, and of each Underwriter to purchase the Shares
hereunder, that, except as hereinafter in this paragraph provided, each of the
Underwriters shall purchase and pay for all Shares agreed to be purchased by
such Underwriter hereunder upon tender to the Representative of all such Shares
in accordance with the terms hereof. If any Underwriter or Underwriters default
in their obligations to purchase Shares hereunder on the First Closing Date and
the aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10 percent of the total number of
Shares which the Underwriters are obligated to purchase on the
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First Closing Date, the Representative may make arrangements satisfactory to the
Company and the Selling Shareholder for the purchase of such Shares by other
persons, including any of the Underwriters; but if no such arrangements are made
by such date, the nondefaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Shares
which such defaulting Underwriters agreed but failed to purchase on such date.
If any Underwriter or Underwriters so default and the aggregate number of Shares
with respect to which such default or defaults occur is more than the above
percentage and arrangements satisfactory to the Representative and the Company
and the Selling Shareholder for the purchase of such Shares by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any nondefaulting Underwriter or the Company or
the Selling Shareholder, except for the expenses to be paid by the Company
pursuant to Section 7 hereof and except to the extent provided in Section 11
hereof.
In the event that Shares to which a default relates are to be purchased
by the nondefaulting Underwriters or by another party or parties, the
Representative or the Company shall have the right to postpone the First Closing
Date for not more than seven business days in order that the necessary changes
in the Registration Statement, Prospectus and any other documents, as well as
any other arrangements, may be effected. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
Section 13. Effective Date. This Agreement shall become effective
immediately as to Sections 7, 9, 11 and 14 and as to all other provisions at
10:00 A.M., Chicago Time, on the day following the date upon which the Pricing
Agreement is executed and delivered, unless such a day is a Saturday, Sunday or
holiday (and in that event this Agreement shall become effective at such hour on
the business day next succeeding such Saturday, Sunday or holiday); but this
Agreement shall nevertheless become effective at such earlier time after the
Pricing Agreement is executed and delivered as you may determine on and by
notice to the Company and the Selling Shareholder or by release of any Shares
for sale to the public. For the purposes of this Section, the Shares shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon the release by you of
telegrams (i) advising Underwriters that the Shares are released for public
offering, or (ii) offering the Shares for sale to securities dealers, whichever
may occur first.
Section 14. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice
to you and the Selling Shareholder or by you by notice to the Company
and the Selling Shareholder at any time prior to the time this
Agreement shall become effective as to all its provisions, and any such
termination shall be without liability on the part of the Company or
the Selling Shareholder to any Underwriter (except for the expenses to
be paid or reimbursed pursuant to Section 7 hereof and except to the
extent provided in Section 11 hereof) or of any Underwriter to the
Company or the Selling Shareholder.
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(b) This Agreement may also be terminated by you prior to the
First Closing Date, and the option referred to in Section 5, if
exercised, may be cancelled at any time prior to the Second Closing
Date, if (i) trading in securities on the New York Stock Exchange shall
have been suspended or minimum prices shall have been established on
such exchange, (ii) a banking moratorium shall have been declared by
Illinois, New York, or United States authorities, (iii) there shall
have been any change in financial markets or in political, economic or
financial conditions which, in the opinion of the Representative,
either renders it impracticable or inadvisable to proceed with the
offering and sale of the Shares on the terms set forth in the
Prospectus or materially and adversely affects the market for the
Shares, or (iv) there shall have been an outbreak of major armed
hostilities between the United States and any foreign power which in
the opinion of the Representative makes it impractical or inadvisable
to offer or sell the Shares. Any termination pursuant to this paragraph
(b) shall be without liability on the part of any Underwriter to the
Company or the Selling Shareholder or on the part of the Company or the
Selling Shareholder to any Underwriter (except for expenses to be paid
or reimbursed pursuant to Section 7 hereof and except to the extent
provided in Section 11 hereof).
Section 15. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Shareholder and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners,
principals, members, officers or directors or any controlling person, or the
Selling Shareholder as the case may be, and will survive delivery of and payment
for the Shares sold hereunder.
Section 16. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/▇ ▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇; if sent to the Company
will be mailed, delivered or telegraphed and confirmed to the Company at its
corporate headquarters; and if sent to the Selling Shareholder will be mailed,
delivered or telegraphed and confirmed to Consulting Fiduciaries, Inc. at such
address as they have previously furnished to the Company and the Representative.
Section 17. Successors. This Agreement and the Pricing Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors, personal representatives and assigns, and to the benefit
of the officers and directors and controlling persons referred to in Section 11,
and no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares as such from any of
the Underwriters merely by reason of such purchase.
Section 18. Representation of Underwriters. You will act as
Representative for the several Underwriters in connection with this financing,
and any action under or in respect of this Agreement taken by you will be
binding upon all the Underwriters.
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Section 19. Partial Unenforceability. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
Section 20. Applicable Law. This Agreement and the Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholder and the several Underwriters including you, all in accordance with
its terms.
Very truly yours,
TEAM FINANCIAL, INC.
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Chairman and Chief Executive Officer
SELLING SHAREHOLDER
TEAM FINANCIAL, INC. EMPLOYEES' STOCK
OWNERSHIP PLAN
By
---------------------------------------
Authorized Signatory
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
Acting as Representative of the
several Underwriters named in
Schedule A.
By
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
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SCHEDULE A
NUMBER OF FIRM
SHARES TO BE
UNDERWRITER PURCHASED
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc.
---------
TOTAL 1,000,000
=========
33
SCHEDULE B
NUMBER OF NUMBER OF
FIRM SHARES OPTION SHARES
TO BE SOLD TO BE SOLD
Company 700,000 150,000
Team Financial, Inc.
Employee Stock Ownership Plan 300,000 0
-------- -------
TOTAL 1,000,000 150,000
========= =======
34
SCHEDULE C
COMFORT LETTER OF KPMG LLP
(1) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the 1933 Act.
(2) In their opinion the consolidated financial statements and
schedules of the Company and its Subsidiaries included in the Registration
Statement and the consolidated financial statements of the Company from which
the information presented under the caption "Selected Consolidated Financial
Data" has been derived which are stated therein to have been examined by them
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act.
(3) On the basis of specified procedures (but not an examination in
accordance with generally accepted auditing standards), including inquiries of
certain officers of the Company and its Subsidiaries responsible for financial
and accounting matters as to transactions and events subsequent to March 31,
1999, a reading of minutes of meetings of the shareholders and directors of the
Company and its Subsidiaries since March 31, 1999, a reading of the latest
available interim unaudited consolidated financial statements of the Company and
its Subsidiaries (with an indication of the date thereof) and other procedures
as specified in such letter, nothing came to their attention which caused them
to believe that (i) the unaudited consolidated financial statements of the
Company and its Subsidiaries included in the Registration Statement do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act or that such unaudited financial statements are not
fairly presented in accordance with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited financial
statements included in the Registration Statement, and (ii) at a specified date
not more than five days prior to the date thereof in the case of the first
letter and not more than two business days prior to the date thereof in the case
of the second and third letters, there was any change in the capital stock or
long-term debt or short-term debt (other than normal payments) of the Company
and its Subsidiaries on a consolidated basis or any decrease in consolidated net
current assets or consolidated shareholders' equity as compared with amounts
shown on the latest unaudited balance sheet of the Company included in the
Registration Statement or for the period from the date of such balance sheet to
a date not more than five days prior to the date thereof in the case of the
first letter and not more than two business days prior to the date thereof in
the case of the second and third letters, there were any decreases, as compared
with the corresponding period of the prior year, in consolidated net sales,
consolidated income before income taxes or in the total or per share amounts of
consolidated net income except, in all instances, for changes or decreases which
the Prospectus discloses have occurred or may occur or which are set forth in
such letter.
(4) They have carried out specified procedures, which have been agreed
to by the Representative, with respect to certain information in the Prospectus
specified by the Representative, and on the basis of such procedures, they have
found such information to be in agreement with the general accounting records of
the Company and its Subsidiaries.
35
SCHEDULE D
EXCEPTIONS TO SECTION 3(A)(I)
36
SCHEDULE E
EXCEPTIONS TO SECTION 3(A)(III)
37
EXHIBIT A
TEAM FINANCIAL, INC.
1,000,000 Shares Common Stock*
PRICING AGREEMENT
June __, 1999
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc.
As Representative of the several Underwriters
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated June __, 1999
(the "Underwriting Agreement") relating to the sale by the Company and the
Selling Shareholder and the purchase by the several Underwriters for whom ▇▇▇▇
▇▇▇▇▇▇ Investments, Inc. is acting as the representative (the "Representative"),
of the above Shares. All terms herein shall have the definitions contained in
the Underwriting Agreement except as otherwise defined herein.
Pursuant to Section 5 of the Underwriting Agreement, the Company and
the Selling Shareholder agree with the Representative as follows:
1. The initial public offering price per share for the
Shares shall be $______.
2. The purchase price per share for the Shares to be paid by
the several Underwriters shall be $___________, being an amount equal
to the initial public offering price set forth above less $____________
per share.
Schedule A is amended as follows:
--------
*Plus an option to acquire up to 150,000 additional shares to cover
overallotments.
38
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholder and the several Underwriters, including you, all in accordance with
its terms.
Very truly yours,
TEAM FINANCIAL, INC.
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Chairman and Chief Executive Officer
SELLING SHAREHOLDER
TEAM FINANCIAL, INC. EMPLOYEES' STOCK
OWNERSHIP PLAN
By
---------------------------------------
Authorized Signatory
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
Acting as Representative of the
several Underwriters.
By
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
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