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Allegiant Bancorp, Inc.
Allegiant Capital Trust I
_________________________
1,725,000 9.875% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Trust Preferred Security)
July 27, 1999
UNDERWRITING AGREEMENT
EVEREN Securities, Inc.
Wheat First Securities
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Allegiant Bancorp, Inc.
Allegiant Capital Trust I
________________________________
1,725,000 9.875% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Trust Preferred Security)
UNDERWRITING AGREEMENT
July 27, 1999
EVEREN Securities, Inc.
Wheat First Securities
Individually and as Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Allegiant Bancorp, Inc., a Missouri corporation (the "Company"),
and its fiduciary subsidiary, Allegiant Capital Trust I (the "Trust"
and, together with the Company, the "Offerors"), a statutory business
trust organized under the Delaware Business Trust Act (the "Delaware
Act"), confirm their agreement with the several underwriters listed in
Schedule I hereto (the "Underwriters"), for whom EVEREN Securities, Inc.
and Wheat First Securities, a division of First Union Capital Markets
Corp., have been duly authorized to act as representatives, with respect
to the proposed issuance and sale by the Trust of its 9.875% Cumulative
Trust Preferred Securities (liquidation amount $10 per security)
representing undivided beneficial interests in the assets of the Trust
(the "Trust Preferred Securities"). The Offerors propose that the Trust
issue the Trust Preferred Securities pursuant to an Amended and Restated
Trust Agreement among Bankers Trust Company, as property trustee (the
"Property Trustee"), Bankers Trust (Delaware), as Delaware trustee (the
"Delaware Trustee"), the administrators named therein (the
"Administrators") and the Company (the "Trust Agreement"). The Trust
Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise
pursuant to a Guarantee Agreement (the "Guarantee Agreement") between
the Company and Bankers Trust Company, as trustee (the "Guarantee
Trustee"). The proceeds of the sale of the Trust Preferred Securities
will be combined with the proceeds from the sale by the Trust to the
Company of the Trust's common securities (the "Common Securities") and
will be used to purchase 9.875% junior
subordinated debentures (the "Subordinated Debentures") issued by the
Company pursuant to an Indenture ("Indenture") between the Company and
Bankers Trust Company, as trustee (the "Indenture Trustee"). The
Offerors hereby confirm their respective agreements with the
Underwriters as follows:
1. The Trust Preferred Securities. The 1,500,000 Trust
Preferred Securities proposed to be sold by the Trust are hereinafter
referred to as the "Firm Securities." The Trust also proposes to grant
to the Underwriters an option to purchase up to 225,000 additional Trust
Preferred Securities (the "Additional Securities") if requested by the
Underwriters as provided in Section 3 hereof. The Firm Securities and
the Additional Securities are herein collectively called the
"Securities."
2. Registration Statement and Prospectus. The Offerors have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations (the "Rules and
Regulations") of the Commission thereunder (collectively, the "Act"),
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), a registration statement on Form S-2 (File Nos. 333-82197 and
333-82197-01) including a prospectus, relating to the Securities, the
Subordinated Debentures and the Guarantee Agreement, that may have been
amended; each such amendment was so prepared and filed. The
registration statement, as amended at the time when it became or becomes
effective, including all financial schedules (if any) and exhibits
thereto, all information incorporated therein by reference and all of
the information (if any) deemed to be part of the registration statement
at the time of its effectiveness pursuant to Rule 430A under the Act
("Rule 430A"), is hereinafter referred to as the "Registration
Statement"; the prospectus in the form first provided to the
Underwriters by the Offerors in connection with the offering and sale of
the Securities (whether or not required to be filed pursuant to
Rule 424(b) under the Act ("Rule 424(b)")) is hereinafter referred to as
the "Prospectus," except that if any revised prospectus shall be
provided to the Underwriters by the Offerors for use in connection with
the offering of the Securities that differs from the Prospectus (whether
or not any such revised prospectus is required to be filed by the
Offerors pursuant to Rule 424(b)), the term "Prospectus" shall refer to
the revised prospectus from and after the time it is first provided to
the Underwriters for such use; and each preliminary prospectus included
in the Registration Statement prior to the time it became or becomes
effective is herein referred to as a "Preliminary Prospectus."
3. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject
to the terms and conditions hereof, (i) the Trust agrees to issue and
sell to the Underwriters, at a price of $10.00 per Security (the
"Purchase Price"), 1,500,000 Firm Securities; and (ii) each Underwriter
agrees, severally and not jointly, to purchase from the Trust, at the
Purchase Price, the aggregate number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto. As
compensation to the Underwriters for their commitments hereunder and in
view of the fact that the proceeds of the sale of the Securities
(together with the proceeds from the sale by the Trust to the Company of
the Common Securities)
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will be used to purchase the Subordinated Debentures, the Company hereby
agrees to pay at the Closing Date (as herein defined) to the
Underwriters a commission per Security equal to $0.375 per Security, or
$562,500 in the aggregate ($646,875 if the over-allotment with respect
to the Additional Securities is exercised in full).
On the basis of the representations and warranties contained in
this Agreement, and subject to the terms and conditions hereof, (i) the
Trust agrees to sell to the Underwriters, at the Purchase Price, up to
225,000 Additional Securities; and (ii) the Underwriters shall have the
right to purchase, severally and not jointly, from time to time, up to
an aggregate of 225,000 Additional Securities at the Purchase Price.
Additional Securities may be purchased as provided in Section 4 hereof
solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Securities. If any Additional Securities
are to be purchased, each Underwriter, severally and not jointly, agrees
to purchase the number of Additional Securities that bears the same
proportion to the total number of Additional Securities to be purchased
as the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Securities.
4. Agreements of the Offerors as to Delivery and Payment.
The Offerors agree with each Underwriter that:
(a) Delivery to the Underwriters of, and payment to
the Trust for, the Firm Securities shall be made at 10:00 A.M.,
Chicago time, on the third (or if the Firm Securities are priced,
as contemplated by Rule 15c6-1(c) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), after 4:30 p.m.
Eastern time, on the fourth) full business day (such time and date
being referred to as the "Closing Date") following the date of the
initial public offering of the Firm Securities as advised to you
by the Company, at such place as you shall designate.
(b) Delivery to the Underwriters of and payment for
any Additional Securities to be purchased by the Underwriters
shall be made at such place as you shall designate, at 10:00 A.M.,
Chicago time, on such date or dates (individually, an "Option
Closing Date" and collectively, the "Option Closing Dates"), which
may be the same as the Closing Date but shall in no event be
earlier than the Closing Date, as shall be specified in a written
notice from you to the Offerors of the Underwriters' determination
to purchase a number, specified in said notice, of Additional
Securities. Any such notice may be given at any time within 30
days after the date of this Agreement.
(c) The Securities will be delivered by the Trust to
the Underwriters on the Closing Date or the applicable Option
Closing Date against payment of the Purchase Price therefor by
certified or official bank check or wire transfer of immediately
available funds payable to the order of the Trust to an account
designated by the Trust. Delivery of the Securities may be made
by credit through full fast transfer to the accounts at The
Depository Trust Company designated by
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you. Certificates representing the Securities, in definitive form
and in such denominations and registered in such names as you may
request in writing not less than two business days prior to the
Closing Date or the applicable Option Closing Date notice to the
Offerors shall be prepared and will be made available for
inspection not later than 9:30 A.M., Chicago time, on the business
day next preceding the Closing Date or the applicable Option
Closing Date, with any transfer taxes payable upon initial
issuance or the transfer thereof duly paid by the Company for the
respective accounts of the Underwriters against payment of the
Purchase Price therefor.
5. Further Agreements of the Offerors. The Offerors also
agree with each Underwriter that:
(a) they will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to
the Registration Statement or, if necessary pursuant to Rule 430A
under the Act, a post-effective amendment to the Registration
Statement, as soon as practicable after the execution and delivery
of this Agreement, and will use their best efforts to cause the
Registration Statement or such post-effective amendment to become
effective at the earliest possible time; and the Offerors will
comply fully and in a timely manner with the applicable provisions
of Rule 424(b) and Rule 430A under the Act;
(b) they will advise you promptly and, if requested
by you, confirm such advice in writing, (i) when the Registration
Statement has become effective, if and when the Prospectus is sent
for filing pursuant to Rule 424 under the Act and when any post-
effective amendment to the Registration Statement becomes
effective, (ii) of the receipt of any comments from the Commission
that relate to the Registration Statement or requests by the
Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement,
or of the suspension of qualification of the Securities for
offering or sale in any jurisdiction, or the initiation or, to the
best knowledge of the Offerors, threat of any proceedings for such
purpose by the Commission or any state securities commission or
other regulatory authority, and (iv) of the happening of any event
or information becoming known during the period referred to in
paragraph (e) below that makes any statement of a material fact
made in the Registration Statement untrue or that requires the
making of any additions to or changes in the Registration
Statement (as amended or supplemented from time to time) in order
to make the statements therein not misleading or that makes any
statement of a material fact made in the Prospectus (as amended or
supplemented from time to time) untrue or that requires the making
of any additions to or changes in the Prospectus (as amended or
supplemented from time to time) in order to make the statements
therein, not misleading; if at any time the Commission shall issue
or institute proceedings (or threaten to institute any such
proceedings) to issue any stop order suspending the
4
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue or
institute proceedings (or threaten to institute proceedings) to
issue an order suspending the qualification or exemption of the
Securities under any state securities or blue sky laws, the
Offerors shall use best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(c) they will furnish to you without charge one
signed copy of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits
filed therewith, and will furnish to you and each Underwriter
designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request;
(d) they will not file any amendment or supplement
to the Registration Statement, whether before or after the time
when it becomes effective, or make any amendment or supplement to
the Prospectus of which you shall not previously have been advised
and provided a copy a reasonable period of time prior to the
filing thereof or to which you or your counsel shall reasonably
object, and they will prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the
Registration Statement or supplement to the Prospectus that may be
necessary or advisable in connection with the distribution of the
Securities by you in your or your counsel's opinion, and will use
best efforts to cause the same to become effective as promptly as
possible;
(e) promptly after the Registration Statement
becomes effective, and from time to time thereafter for such
period as a prospectus is required by the Act to be delivered in
connection with the sales by an underwriter or a dealer (in the
opinion of your counsel), they will furnish to each Underwriter
and dealer without charge as many copies of the Prospectus (and
any amendment or supplement to the Prospectus) as such Underwriter
or dealer may reasonably request for the purposes contemplated by
the Act, and the Offerors consent to the use of the Prospectus and
any amendment or supplement thereto by any Underwriter or any
dealer, both in connection with the offering or sale of the
Securities and for such period of time thereafter as the
Prospectus is required by the Act to be delivered in connection
therewith;
(f) if during the period specified in paragraph
(e) any event shall occur or information become known as a result
of which in the opinion of your counsel it becomes necessary to
amend or supplement the Prospectus in order to make the statements
therein as of the date the Prospectus is delivered to a purchaser,
in light of the circumstances under which such statements were
made, not misleading, or it is necessary to amend or supplement
the Prospectus to comply with any law, forthwith to prepare and,
subject to paragraph 5(d) above, they will file with the
Commission at the sole expense of the Company an appropriate
5
amendment or supplement to the Prospectus so that the statements
of any material facts in the Prospectus, as so amended and
supplemented, will not when it is so delivered, in light of the
circumstances under which such statements are made, be misleading,
or so that the Prospectus will comply with law and it will furnish
to the Underwriters and to such dealers as the Underwriters shall
specify, at the sole expense of the Company, such number of copies
thereof as such Underwriters or dealers may reasonably request;
(g) prior to any public offering of the Securities,
they will cooperate with you and counsel for the Underwriters in
connection with the registration or qualification of the
Securities for offer and sale by the several Underwriters and by
dealers under the state securities or blue sky laws of such
jurisdictions as you may reasonably request (provided that the
Offerors shall not be obligated to qualify as foreign corporations
in any jurisdiction in which they are not so qualified or to take
any action that would subject them to general consent to service
of process in any jurisdiction in which they are not now so
subject), and the Offerors will continue such qualification in
effect so long as required by law for the distribution of the
Securities and will file such consents to service of process or
other documents as may be necessary in order to effect such
registration or qualification (provided that the Offerors shall
not be obligated to take any action that would subject it to
general consent to service of process in any jurisdiction in which
they are not now so subject);
(h) they will not, prior to the exercise in full or
termination or expiration of the option to purchase the Option
Securities, incur any liability or obligation, direct or
contingent, or enter into any material transaction, other than in
the ordinary course of business, except as contemplated by the
Prospectus;
(i) they will make generally available to their
security holders and furnish to the Underwriters as soon as
reasonably practicable a consolidated earning statement covering a
period of at least 12 months beginning after the "effective date"
(as defined in Rule 158 under the Act) of the Registration
Statement (but in no event commencing later than 90 days after
such date) that will satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder, and will advise you in writing
when such statement has been made so available;
(j) during the period of five years after the date
of this Agreement, they will furnish to you a copy: (i) as soon
as practicable after the filing thereof, of each report filed by
either of the Offerors with the Commission, any securities
exchange or the National Association of Securities Dealers, Inc.
("NASD"); (ii) as soon as practicable after the release thereof,
of each material press release in respect of either of the
Offerors; (iii) as soon as available, of each report of the
Company mailed to shareholders; and (iv) as soon as available,
such other publicly available information concerning the Offerors
as you may reasonably request;
6
(k) whether or not the transactions contemplated
hereby are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, to pay all costs, fees,
expenses and taxes incident to the performance by the Offerors of
their obligations hereunder, including (i) the preparation,
printing, filing and distribution under the Act of the
Registration Statement (including financial statements and
exhibits), each Preliminary Prospectus and all amendments and
supplements to any of them prior to or during the period specified
in paragraph (e) above of this Section 5, (ii) the word
processing, reproduction and distribution of this Agreement, the
Blue Sky Survey and any other agreements, memoranda,
correspondence and other documents prepared and delivered by the
Underwriters or their counsel in connection with the offering of
the Securities (including in each case any disbursements of
counsel for the Underwriters relating to such preparation and
delivery), (iii) the registration or qualification of the
Securities for offer and sale under the securities or blue sky
laws of the several states, including in each case the fees and
disbursements of counsel for the Underwriters, relating to such
registration or qualification and memoranda relating thereto;
provided however, in no event shall such fees and disbursements
exceed $5,000, (iv) filings and clearance with the NASD in
connection with the offering and sale of the Securities, (v) the
listing of the Securities on the American Stock Exchange ("AMEX"),
(vi) furnishing such copies of the Registration Statement, each
Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with
the offering or sale of the Securities by the Underwriters or by
dealers to whom the Securities may be sold, (vii) obtaining the
opinions to be provided pursuant to Sections 8(f), 8(g) and 8(h)
of this Agreement and (viii) the performance by the Offerors of
all of their other obligations under this Agreement; provided that
if the sale of the Securities provided for herein is not
consummated because the Underwriters exercise their right to
terminate this Agreement pursuant to Section 9 hereof and any of
the following have occurred during the term of this Agreement:
(a) there has been any material adverse change in the condition
(financial or otherwise), earnings, affairs, business or prospects
of the Company, or (b) either Offeror shall refuse or be unable to
comply with any provision hereof (except as the result of a breach
of this Agreement by the Underwriters), the Company will promptly
reimburse the Underwriters upon demand for all reasonable out-of-
pocket expenses (including the fees and disbursements of counsel
for the Underwriters) that shall have been incurred by the
Underwriters in connection with the proposed purchase and sale of
Securities;
(l) they will use the net proceeds received by them
from the sale of the Securities and the Subordinated Debentures in
the manner specified in the Prospectus and will file such reports
with the Commission with respect to the application of the
proceeds therefrom as may be required in accordance with Rule 463
under the Act and will furnish you copies of any such reports as
soon as practicable after the filing thereof;
7
(m) if, at the time of effectiveness of the
Registration Statement, any information shall have been omitted
therefrom in reliance upon Rule 430A, then immediately following
the execution and delivery of this Agreement, they will prepare,
and file, or transmit for filing with the Commission in accordance
with such Rule 430A and Rule 424(b), copies of an amended
prospectus, or, if required by such Rule 430A, a post-effective
amendment to the Registration Statement (including an amended
prospectus), containing all information so omitted;
(n) they will cause the Securities to be listed,
subject to notice of issuance or sale, on AMEX and will comply
with all registration, filing and reporting requirements of AMEX;
(o) they will not take, directly or indirectly, any
action designed to or which might reasonably be expected to
constitute, cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of either Offeror to facilitate the sale or resale of the
Securities;
(p) they will inform the Florida Department of
Banking and Finance at any time prior to the consummation of the
distribution of the Securities by the Underwriters if either of
them commences engaging in business with the government of Cuba or
with any person or affiliate located in Cuba, with such
information to be provided within 90 days after the commencement
thereof or after a change occurs with respect to previously
reported information;
(q) they will use their best efforts to do and
perform all things required to be done and performed under this
Agreement by them prior to or after the Closing Date or any Option
Closing Date, as the case may be, and to satisfy all conditions
precedent to the delivery of the Securities;
(r) the Offerors will not distribute any prospectus
or other offering material in connection with the offering and
sale of the Securities other than any Preliminary Prospectus or
the Prospectus or other materials permitted by the Act to be
distributed by the Company; and
(s) in the event that the Subordinated Debentures
are distributed to the holders of the Securities for any reason,
the Offerors will use their respective best efforts to cause the
Subordinated Debentures to be listed, subject to notice of
issuance, at the time of such distribution, upon the American
Stock Exchange, such other securities exchange or exchanges and/or
the Nasdaq National Market upon which the Securities are then
listed. The Company will thereafter comply with all registration,
filing and reporting requirements of the American Stock Exchange
or such other exchange or Nasdaq National Market upon which the
Subordinated Debentures are listed.
8
6. Representations and Warranties.
(a) The Offerors jointly and severally represent and
warrant to, and agree with, each Underwriter as of the date
hereof, the Closing Date and each Option Closing Date (except for
such representations that are specified as being made as of a
particular date) as follows:
(i) The Commission has not issued any order
preventing or suspending the use of any Preliminary
Prospectus relating to the proposed offering of the
Securities nor instituted or threatened any proceedings
for that purpose. The Registration Statement, on the
date it was or is declared effective by the Commission,
each Preliminary Prospectus, on the date of the filing
thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing
thereof with the Commission (or if not filed, on the date
provided by the Offerors to the Underwriters in
connection with the offering and sale of the securities)
and at the Closing Date and each Option Closing Date,
conformed or will conform with the requirements of the
Act, the Rules and Regulations and the Trust Indenture
Act and the rules and regulations thereunder. The
Registration Statement, on the date it was or is declared
effective by the Commission, upon the filing or first
delivery to the Underwriters of the Prospectus (or any
supplement to the Prospectus) and at the Closing Date and
each Option Closing Date did not or will not contain an
untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary
to make the statements therein, in light of the
circumstances under which they were made, not misleading;
each Preliminary Prospectus, on the date of the filing
thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing
thereof with the Commission (or if not filed, on the date
provided by the Offerors to the Underwriters in
connection with the offering and sale of the Securities)
and at the Closing Date and each Option Closing Date did
not and will not include an untrue statement of material
fact or omit to state a material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading; provided that the foregoing
shall not apply to statements in or omissions from the
Registration Statement and the Prospectus made or omitted
in reliance upon, and in conformity with, information
relating to the Underwriters furnished in writing or via
electronic mail to the Offerors by or on behalf of the
Underwriters with your consent expressly for use therein.
The Offerors hereby acknowledge for all purposes under
this Agreement that (A) the statements set forth under
the caption "Underwriting" in the Prospectus and (B) the
stabilization legend on page 3 of the Prospectus
constitute the only written information furnished to the
Offerors by or on behalf of the Underwriters for use in
the preparation of the Registration Statement or the
Prospectus or any amendment or supplement thereto.
9
(ii) The Company has been duly organized and
is a validly existing corporation in good standing under
the laws of Missouri and is duly registered as a bank
holding company under the Bank Holding Company Act of
1956, as amended (the "BHC Act"), supervised by the Board
of Governors of the Federal Reserve System (the "FRB").
Allegiant Bank (the "Bank"), Allegiant Real Estate
Investment Trust (the "REIT"), Allegiant Investment
Company ("AIC"), Allegiant Insurance Services Co.
("AISC") and Xxxxxx Road, Inc. (together with the Bank,
the REIT, AIC and AISC, collectively, the "Subsidiaries")
and the Trust constitute the only subsidiaries of the
Company. Each Subsidiary has been duly organized and is
validly existing and in good standing under the laws of
its jurisdiction of incorporation or organization, as the
case may be. Each of the Company and its Subsidiaries
has full power and authority, corporate or otherwise, to
own or lease its properties and assets and to conduct its
business as described in the Registration Statement and
the Prospectus and is duly qualified to do business and
in good standing in each jurisdiction in which it owns or
leases real property or in which the conduct of its
business or the ownership or leasing of property requires
such qualification, except where the failure to be so
qualified, either individually or in the aggregate, would
not have a material adverse effect on the condition
(financial or otherwise), business, assets, prospects,
net worth or results of operations of the Trust, the
Company and the Subsidiaries, taken as a whole (a
"Material Adverse Effect"). Other than the Trust and the
Subsidiaries, the Company owns no capital stock or other
equity, ownership or proprietary interest in any company,
partnership, association, trust or other entity. The
accounts of the Bank are insured by the Bank Insurance
Fund and the Savings Association Insurance Fund of the
Federal Deposit Insurance Corporation (the "FDIC") up to
the maximum applicable amount in accordance with the
rules and regulations of the FDIC, and no proceedings for
the termination or revocation of such membership or
insurance are pending, or, to the best knowledge of the
Offerors, threatened.
(iii) The Trust has been duly created and is
validly existing in good standing as a business trust
under the Delaware Act with full trust power and
authority to own property and to conduct its business as
described in the Registration Statement and Prospectus
and to enter into and perform its obligations under this
Agreement, the Securities, the Common Securities and the
Trust Agreement and is authorized to do business in each
jurisdiction in which such qualification is required,
except where the failure to so qualify would not have a
Material Adverse Effect. The Trust has conducted and
will conduct no business other than the transactions
contemplated by the Trust Agreement and described in the
Prospectus. The Trust is not a party to or otherwise
bound by any agreement other than those described in the
Prospectus. Based upon federal income tax law as of the
date hereof, as of the Closing and as of
10
any Option Closing Date, the Trust is and will be
classified for United States federal income tax purposes
as a grantor trust and not as an association taxable as a
corporation. Based upon GAAP (as defined herein) as of
the date hereof, as of the Closing Date and as of any
Option Closing Date, the Trust is and, immediately after
the offering and the sale of the Securities, will be
treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(iv) Except as contemplated in the Prospectus,
subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, (A) none of the Offerors or the Subsidiaries
has incurred any material liabilities or obligations,
direct or contingent, or entered into any material
transactions not in the ordinary course of business, nor
purchased any of its outstanding capital stock or
declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock or
otherwise (other than the $.05 cash dividend per common
share declared by the Company on April 1, 1999 and July
1, 1999 and paid on April 15, 1999 and July 15, 1999,
respectively), and (B) there has not been any material
adverse change in either Offeror's or any Subsidiary's
condition (financial or otherwise), business, affairs,
prospects or results of operations or any material change
in their respective capital stock, short-term debt or
long-term debt.
(v) The Subordinated Debentures have been duly
authorized by the Company and at the Closing Date will
have been duly executed by the Company and, when
authenticated in the manner provided in the Indenture and
delivered against payment therefor as described in the
Prospectus, will constitute valid and binding obligations
of the Company, enforceable against the Company in
accordance with their terms, except as enforceability of
the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general
equity principles, will be in the form contemplated by,
and entitled to the benefits of, the Indenture and will
conform in all material respects to the statements
relating thereto in the Prospectus.
(vi) The Common Securities have been duly
authorized by the Trust and, when issued and delivered by
the Trust to the Company against payment therefor as
described in the Registration Statement and Prospectus,
will be validly issued and (subject to the terms of the
Trust Agreement) fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and will
conform in all material respects to the statements
relating thereto contained in the Prospectus. The
issuance of the Common Securities is not subject to
preemptive or other similar rights. At the Closing Date
all of the issued and outstanding Common Securities of
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the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(vii) The Securities have been duly authorized
by the Trust Agreement and, when issued and delivered
pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued
and fully paid and non-assessable undivided beneficial
interests in the Trust, will be entitled to the benefits
of the Trust Agreement and will in all material respects
conform to the statements relating thereto contained in
the Prospectus. The issuance of the Securities is not
subject to preemptive or other similar rights. Holders
of Securities will be entitled to the same limitation of
personal liability under Delaware law as extended to
stockholders of a private corporation for profit.
(viii) Each of this Agreement, the Indenture,
the Trust Agreement and the Guarantee Agreement has been
duly authorized, executed and delivered by the Company
and/or the Trust, as the case may be, and constitutes a
legal, valid and binding obligation of the Company and/or
the Trust, as the case may be, enforceable in accordance
with its terms, except as enforceability of the same may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors'
rights generally and by general equity principles. Each
Offeror has full power and authority to enter into this
Agreement, the Indenture, the Trust Agreement and the
Guarantee Agreement, as the case may be, and, in the case
of the Trust, to authorize, issue and sell the Securities
as contemplated by this Agreement, and each of the
Indenture and the Trust Agreement has been duly qualified
under the Trust Indenture Act and will conform in all
material respects to the statements relating thereto in
the Registration Statement and the Prospectus.
(ix) Neither the Company nor any Subsidiary is
in violation of its respective Articles of Incorporation,
charter or by-laws. The Trust is not in violation of the
Trust Agreement or its certificate of trust filed with
the State of Delaware on June 30, 1999 (the "Certificate
of Trust"). Neither Offeror nor any Subsidiary is in
violation of or in breach of or in default in (nor has
any event occurred that with notice or lapse of time, or
both, would be a breach of or a default in) the
performance of any obligation, agreement or condition
contained in any agreement, lease, contract, permit,
license, franchise agreement, mortgage, loan agreement,
debenture, note, deed of trust, bond, indenture or other
evidence of indebtedness or any other instrument or
obligation (collectively, "Obligations and Instruments")
to which any of them is a party or by which any of them
or any of their respective properties or assets is bound
or affected (except for such contravention or default as
would not have a Material Adverse Effect). Neither
Offeror nor any Subsidiary is in violation of any
statute, judgment,
12
decree, order, rule or regulation (collectively, "Laws")
applicable to any of them or any of their respective
properties or assets that, alone, or together with other
violations of Laws would result in a Material Adverse
Effect. To the best knowledge of the Offerors, no other
party under any contract or other agreement to which
either Offeror or any Subsidiary is a party is in
material default thereunder except for such defaults as
would not individually or in the aggregate result in a
Material Adverse Effect.
(x) The execution, delivery and performance of
this Agreement, the Indenture, the Trust Agreement and
the Guarantee Agreement and the consummation of the
transactions contemplated hereby or thereby will not,
alone or upon notice or the passage of time or both,
(A) require any consent, approval, authorization or other
order of any court, regulatory body, administrative
agency or other governmental body or third party (except
such as may be required under the Act and the securities
or blue sky laws of the various states or by the NASD),
(B) result in the creation or imposition of any lien,
charge or encumbrance upon any of the properties or
assets of either Offeror pursuant to the terms and
provisions of any Obligation or Instrument, (C) conflict
with or constitute a breach or default under any
Obligation or Instrument to which either Offeror is a
party or by which either of them or any of their
respective properties or assets is bound (except for such
creation, conflict, breach or default as would not have a
Material Adverse Effect), or conflict with or result in a
breach or violation of any of the terms and provisions of
the Company's Articles of Incorporation, as amended, or
by-laws, the Trust's Trust Agreement or its Certificate
of Trust, or (D) assuming compliance with the Act and all
applicable state securities or Blue Sky laws, violate or
conflict with any Laws applicable to the Company or any
of its properties or assets (except for such violation or
conflict as would not have a Material Adverse Effect).
No action, suit or proceeding before any court or
arbitrator or any governmental body, agency or official
(domestic or foreign) is pending against or, to the best
knowledge of the Offerors, threatened against either
Offeror, that, if adversely determined, could reasonably
be expected to in any manner invalidate this Agreement,
the Indenture, the Trust Agreement or the Guarantee
Agreement.
(xi) Except as set forth in the Prospectus,
there is no action, suit, proceeding, inquiry or
investigation, governmental or otherwise, before any
court, arbitrator or governmental agency or body
(collectively, "Proceedings") pending to which either
Offeror or any Subsidiary is a party or to which any of
their respective properties or assets are subject, that,
if determined adversely to them, might result in a
Material Adverse Effect, or that seeks to restrain,
enjoin, prevent the consummation of or otherwise
challenge the issuance or sale of any of the Securities
to be sold
13
xxxxxxxxx, and, to the best knowledge of the Offerors, no
such Proceedings are threatened or contemplated.
(xii) There is no contract, document,
agreement or transaction to which either Offeror or any
Subsidiary is a party, or that involved or involves any
of them or any of their respective properties or assets
that is required to be described in or filed as exhibits
to the Registration Statement or the Prospectus by the
Act or the Rules and Regulations that have not been so
described or filed.
(xiii) No action has been taken with respect
to either Offeror, and, to the best knowledge of the
Offerors, no statute, rule, regulation or order has been
enacted, adopted or issued by any governmental agency
that suspends the effectiveness of the Registration
Statement, prevents or suspends the use of any
Preliminary Prospectus or the Prospectus or suspends the
sale of the Securities in any jurisdiction referred to in
Section 5(g) hereof. No injunction, restraining order or
order of any nature by a federal or state court of
competent jurisdiction has been issued with respect to
either Offeror that might prevent the issuance of the
Securities, suspend the effectiveness of the Registration
Statement, prevent or suspend the use of any Preliminary
Prospectus or the Prospectus or suspend the sale of the
Securities in any jurisdiction referred to in
Section 5(g) hereof; and every request of the Commission,
or any securities authority or agency of any
jurisdiction, for additional information (to be included
in the Registration Statement or the Prospectus or
otherwise) has been complied with in all material
respects).
(xiv) All of the issued and outstanding shares
of capital stock of the Company are duly authorized and
are validly issued, fully paid and non-assessable, have
been issued in compliance with all federal and state
securities laws, were not issued in violation of or
subject to any preemptive rights or other rights to
subscribe for or purchase securities, and the holders
thereof are not subject to personal liability by reason
of being such holders. The authorized, issued and
outstanding capital stock of the Company is as set forth
in the Registration Statement and Prospectus under the
caption "Capitalization." Except as otherwise stated in
the Registration Statement and Prospectus, there are no
preemptive rights or other rights to subscribe for or to
purchase, or any restriction upon the voting or transfer
of, any shares of the Company's capital stock pursuant to
the Company's Articles of Incorporation, as amended, by-
laws or any agreement or other instrument to which the
Company is a party to by which the Company is bound.
Neither the filing of the Registration Statement nor the
offering or sale of the Subordinated Debentures or
Securities as contemplated by this Agreement gives rise
to any rights for or relating to the registration of any
shares of capital stock of the Company. All of the
issued and outstanding shares of capital stock of each
Subsidiary have been duly and validly
14
authorized and issued and are fully paid and
nonassessable, and the Company owns of record and
beneficially, free and clear of any security interests,
claims, liens, proxies, equities or other encumbrances,
all of the issued and outstanding shares of such stock.
Except as described in the Registration Statement and the
Prospectus and except for stock options granted to
employees and directors of the Company and the
Subsidiaries (which have been disclosed in the
Registration Statement to the extent required by the Act
or the Exchange Act), there are no options, warrants,
agreements, contracts or other rights in existence to
purchase or acquire from the Company or any Subsidiary
any shares of the capital stock of the Company or such
Subsidiary.
(xv) The Indenture, the Trust Agreement and
the Guarantee Agreement are in substantially the
respective forms filed as exhibits to the Registration
Statement.
(xvi) The Company's obligations under the
Guarantee Agreement are subordinated and junior in right
of payment to all Senior Indebtedness (as defined in the
Indenture) of the Company.
(xvii) The Subordinated Debentures are
subordinate and junior in right of payment to all Senior
Indebtedness of the Company.
(xviii) Each of the Administrators is an
employee of the Company and has been duly authorized by
the Company to execute and deliver the Trust Agreement.
(xix) Neither Offeror nor any Subsidiary has
violated any foreign, federal, state or local law or
regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("Environmental
Laws") that, in each case or in the aggregate, might
result in a Material Adverse Effect. None of the
property owned or leased by either Offeror or any
Subsidiary is contaminated with any waste or hazardous
substances that might reasonably be expected to result in
a Material Adverse Effect, nor may either Offeror or any
Subsidiary be deemed an "owner or operator" of a
"facility" or "vessel" that owns, possesses, transports,
generates, discharges or disposes of a "hazardous
substance" as those terms are defined in Section 9601 of
the Comprehensive Response Compensation and Liability Act
of 1980, U.S.C. Section 9601 et seq., except as would not
reasonably be expected to result in a Material Adverse
Effect.
(xx) Each of the Company and the Subsidiaries
is in compliance in all material respects with all
presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"). No "reportable event" (as defined in ERISA)
has occurred with respect to
15
any "pension plan" (as defined in ERISA) which would have
a Material Adverse Effect for which the Company or any
Subsidiary would have any liability. Neither the Company
nor any Subsidiary has incurred or expects to incur
liability under (A) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan,"
or (B) Section 412 or 4971 of the Internal Revenue Code
or 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"), in
each case which is not reasonably likely to have a
Material Adverse Effect. Each "pension plan" for which
the Company or any Subsidiary would have any liability
that is intended to be qualified under Section 501(a) of
the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification,
except for such losses as would not have a Material
Adverse Effect.
(xxi) The Offerors and the Subsidiaries hold
such permits, licenses, franchises and authorizations of
governmental or regulatory authorities or third parties
("Permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own,
lease and operate their respective properties and assets
and to conduct their respective businesses, except where
the failure to have any such Permit would not have a
Material Adverse Effect. The Offerors and the
Subsidiaries have fulfilled and performed all of their
respective material obligations with respect to such
Permits, and no event has occurred that allows, or after
notice or lapse of time or both, would allow revocation
or termination thereof or result in any other material
impairment of the rights of the holder of any such
Permit.
(xxii) Neither of the Offerors nor any
Subsidiary is an "investment company", a company
"controlled" by an "investment company" or an "investment
adviser" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act").
(xxiii) The Offerors and the Subsidiaries have
good and marketable title, free and clear of all liens,
claims, encumbrances and restrictions (except liens for
taxes not yet due and payable) to all property and assets
described in the Registration Statement as being owned by
them, except as described or referred to in the
Prospectus. All leases to which either Offeror or any
Subsidiary is a party are, subsisting, valid and binding
and no default of such Offeror or Subsidiary or, to the
best knowledge of the Offerors, any other person has
occurred or is continuing thereunder that might
reasonably be expected to result in a Material Adverse
Effect. Such Offeror or Subsidiary enjoys peaceful and
undisturbed possession under all such leases to which
they are a party as lessee with such exceptions as do not
materially interfere with the use made thereof by such
Offeror or Subsidiary.
16
(xxiv) The Offerors and the Subsidiaries
maintain reasonably adequate insurance for the conduct of
their respective businesses in accordance with prudent
business practices with reputable third-party insurers.
(xxv) To the best knowledge of the Offerors,
Ernst & Young LLP and BDO Xxxxxxx, LLP, the accounting
firms that have certified or reviewed, or shall certify
or review, the financial statements and supporting
schedules filed or to be filed with the Commission as
part of the Registration Statement and the Prospectus,
are independent public accounting firms with respect to
the Trust, the Company and the Subsidiaries as required
by the Act.
(xxvi) The consolidated financial statements
of the Company, together with related notes and schedules
of the Company included in the Registration Statement and
the Prospectus, comply in all material respects with the
requirements of the Act and the Exchange Act, are
accurate and present fairly the financial position,
results of operations and cash flows of the Company at
the indicated dates and for the indicated periods. Such
financial statements have been prepared in accordance
with generally accepted accounting principles ("GAAP"),
consistently applied throughout the periods involved, and
all adjustments necessary for a fair presentation of
results for such periods have been made. The summary and
selected financial and other data included in the
Registration Statement and the Prospectus present fairly
the information shown therein and, as applicable, have
been compiled on a basis consistent with the audited
financial statements included therein.
(xxvii) No holder of any security of either
Offeror has any right to require inclusion of any such
security in the Registration Statement. There are no
preemptive rights with respect to the offering being made
by the Prospectus.
(xxviii) No labor dispute with the employees
of either Offeror or any Subsidiary exists, or to the
best knowledge of the Offerors, is imminent, that could
reasonably be expected to result in a Material Adverse
Effect.
(xxix) Each of the Offerors and each
Subsidiary has filed or caused to be filed, or has
properly filed extensions for, all foreign, federal,
state and local income, value added and franchise tax
returns and has paid all taxes and assessments shown
thereon as due, except for such taxes and assessments as
are disclosed or adequately reserved against and that are
being contested in good faith by appropriate proceedings,
promptly instituted and diligently conducted. All
material tax liabilities are adequately
17
provided for on the books of such Offeror or Subsidiary,
and there is no material tax deficiency that has been or
might be asserted against any of them that is not so
provided for.
(xxx) The Offerors and the Subsidiaries own or
possess, or can acquire on reasonable terms, the patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and or
unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and
trade names (collectively, "Patents and Proprietary
Rights") currently employed by them in connection with
the businesses they now operate, except where the failure
to so own, possess or acquire such Patents and
Proprietary Rights would not have a Material Adverse
Effect. Neither of the Offerors nor any Subsidiary has
received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of
others with respect to any Patent or Proprietary Rights
that, if the subject of any unfavorable decision, ruling
or finding, singly or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
(xxxi) Each Offeror and each Subsidiary is
conducting and intends to conduct its business so as to
comply in all material respects with applicable federal,
state, local and foreign government Laws, except where
the failure to comply would not have a Material Adverse
Effect. Except as set forth in the Registration
Statement and the Prospectus, neither of the Offerors nor
any Subsidiary is charged with or, to the best knowledge
of the Offerors, under investigation with respect to, any
material violation of any such Laws.
(xxxii) Neither Offeror has taken, directly or
indirectly, any action designed to or which has
constituted or that might reasonably be expected to cause
or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any
security of either Offeror to facilitate the sale or
resale of the Securities.
(xxxiii) None of the Offerors, any Subsidiary
nor, to the best knowledge of the Offerors, any employee
or agent of any of them has made any payment of funds of
such Offeror or Subsidiary or received has retained any
funds in violation of any Law, rule or regulation
(including, without limitation, the Foreign Corrupt
Practices Act) or of a character required to be disclosed
in the Prospectus. Neither of the Offerors nor any
Subsidiary has, at any time during the past five years,
(A) made any unlawful contributions to any candidate for
any political office, or failed fully to disclose any
contribution in violation of law, or (B) made any
unlawful payment to state, federal or foreign government
officer or officers, or other person charged with similar
public or quasi-public duty.
18
(xxxiv) Each of the Company and the
Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with
GAAP and to maintain asset accountability, and
(iii) access to assets is permitted only in accordance
with management's general or specific authorization.
(xxxv) The Offerors have not distributed any
prospectus or other offering material in connection with
the offering and sale of the Securities other than any
Preliminary Prospectus or the Prospectus or other
materials permitted by the Act to be distributed by the
Company.
(xxxvi) Other than as contemplated by this
Agreement or described in the Registration Statement,
neither Offeror has incurred any liability for any
finder's or broker's fee or agent's commission in
connection with the execution and delivery of this
Agreement or the consummation of the transactions
contemplated hereby.
(xxxvii) The Bank is in good standing with the
Division of Finance of the State of Missouri (the
"Division of Finance"); each of the other Subsidiaries is
in good standing with the Secretary of State of its state
of incorporation or organization, as the case may be; and
the activities of the Company and the Subsidiaries are
permitted under applicable federal and state banking laws
and regulations. The Company has all necessary approvals,
including the approvals of the Division of Finance and/or
the FRB, as applicable, to own the capital stock of the
Subsidiaries. Neither the Company nor any of the
Subsidiaries is a party or subject to any agreement or
memorandum with, or directive or order issued by, the
FRB, the Division of Finance, the FDIC or any other
regulatory authority having jurisdiction over it (the
"Regulators"), which imposes any restrictions or
requirements not generally applicable to entities of the
same type as the Company and the Subsidiaries. Neither
the Company nor any Subsidiary is subject to any
directive from any Regulator to make any material change
in the method of conducting their respective businesses,
and no such directive is pending or, to the best
knowledge of the Offerors, threatened by such Regulators.
(xxxviii) The Offerors expect that the
Securities will qualify as "Tier 1" capital (as defined
in 12 C.F.R. Part 325 and subject to the limitations set
forth therein) to the extent described under
"Capitalization" in the Prospectus.
(xxxix) The Bank has properly administered, in
all material respects, all accounts for which it acts as
a fiduciary, including, but not limited to,
19
accounts for which it serves as a trustee, agent,
custodian, personal representative, guardian, conservator
or investment advisor, in accordance with the terms of
the governing documents and applicable state and federal
law and regulation and common law. Neither the Bank nor
any of its directors, officers or employees has committed
any material breach of trust with respect to any such
fiduciary account, and the accountings for each such
fiduciary account are true and correct in all material
respects and accurately reflect the assets of such
fiduciary account in all material respects.
(xl) The conditions for use of Form S-2, as
set forth in the General Instructions thereto, have been
satisfied.
(xli) The Offerors and the Subsidiaries are in
compliance with all provisions of Section 1 of Florida
Statutes, Section 517.075, An Act Relating to Disclosure
of Doing Business with Cuba.
(b) Any certificate signed by any officer of the
Company or a trustee of the Trust and delivered to you or to counsel for
the Underwriters shall be deemed a representation and warranty jointly
and severally made by the Offerors to each Underwriter as to the matters
covered thereby and shall be deemed incorporated herein in its entirety
and shall be effective as if such representation and warranty were made
herein.
7. Indemnification.
(a) The Offerors jointly and severally agree to
indemnify and hold harmless each of the Underwriters and each
person, if any, who controls each of the Underwriters within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act
(the "indemnified parties") from and against any and all losses,
claims, damages, liabilities and judgments caused by, arising out
of, related to or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (as amended or supplemented if the Offerors shall have
furnished any amendments or supplements thereto), including the
information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A, if applicable, or the
Prospectus or any Preliminary Prospectus or caused by any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided, however, that the Offerors shall not be
liable in any such case to the extent that such losses, claims,
damages, liabilities or judgments are caused by an untrue
statement or omission made or omitted in reliance upon, and in
conformity with, information relating to the Underwriters
furnished in writing to the Offerors by or on behalf of the
Underwriters with your consent expressly for use therein.
20
(b) In case any action shall be brought against any
of the indemnified parties, based upon any Preliminary Prospectus,
the Registration Statement or the Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be
sought against the Offerors, such indemnified parties shall
promptly notify the Offerors in writing (but the failure so to
notify shall not relieve the Offerors of any liability that they
may otherwise have to such indemnified parties under this
Section 7 (although the Offerors' liability to an indemnified
party may be reduced on a monetary basis to the extent, but only
to the extent, they have been prejudiced by such failure on the
part of such indemnified party)) and the Offerors shall promptly
assume the defense thereof, including the employment of counsel
satisfactory to such indemnified party and payment of all fees and
expenses. The indemnified parties shall each have the right to
employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall
be at the expense of such indemnified parties unless (i) the
employment of such counsel shall have been specifically authorized
by the Offerors, (ii) the Offerors shall have failed to assume
promptly the defense or to employ counsel reasonably satisfactory
to such indemnified party or (iii) the named parties to any such
action (including any impleaded parties) include both the
indemnified parties and the Offerors, and an indemnified party
shall have been advised by counsel that there may be one or more
legal defenses available to one or more of the indemnified parties
that are different from or additional to those available to the
Offerors (in which case the Offerors shall not have the right to
assume the defense of such action on behalf of such indemnified
party, it being understood, however, that the Offerors shall not,
in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for the indemnified
parties, which firm shall be designated in writing by you and that
all such fees and expenses shall be reimbursed promptly as they
are incurred). The Offerors shall not be liable for any settlement
of any such action effected without their written consent, which
consent shall not be unreasonably withheld, but if settled with
the written consent of the Offerors, the Offerors agree to
indemnify and hold harmless the indemnified parties from and
against any and all loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph,
the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 10 business days
after delivery by registered or certified mail to the proper
address for notice to such indemnifying party of the aforesaid
request (whether or not such delivery is accepted) and (ii) such
indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior
written
21
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 and complete release in
writing of such indemnified party from any and all liability on
claims that are the subject matter of such proceeding, which such
settlement shall be in form and substance satisfactory to the
indemnified party. The indemnification provided in this Section 7
shall be in addition to any liability which the Offerors may
otherwise have.
(c) The Underwriters agree, severally and not
jointly, to indemnify and hold harmless the Offerors and their
directors, officers and trustees who sign the Registration
Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the
Offerors to the Underwriters but only with reference to
information stated in or omitted from the Registration Statement,
the Prospectus or any Preliminary Prospectus in reliance upon, and
in conformity with, information relating to the Underwriters
furnished in writing or via electronic mail to the Offerors by or
on behalf of the Underwriters with your consent expressly for use
therein. In case any action shall be brought against the Offerors
or any other such person based on the Registration Statement, the
Prospectus or any Preliminary Prospectus and in respect of which
indemnity may be sought against the Underwriters, the Underwriters
shall have the rights and duties given to the Offerors by
Section 7(b) hereof (except that if the Offerors shall have
assumed the defense thereof, such Underwriter shall not be
required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such Underwriter), and the
Offerors and such other persons shall have the rights and duties
given to the "indemnified parties" by Section 7(b) hereof.
(d) If the indemnification provided for in this
Section 7 is for any reason unavailable to an indemnified party or
insufficient to hold such indemnified party harmless in respect of
any losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages, liabilities and judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Offerors on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided
in clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the
other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the
Offerors
22
on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the
offering and sale of the Securities (before deducting expenses)
received by the Offerors on the one hand, and the total
underwriting commissions received by the Underwriters on the
other, bears to the total price to the public of the Securities,
in each case as set forth on the cover page of the Prospectus.
The relative fault of the Offerors and the Underwriters shall be
determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
the alleged omission to state a material fact relates to
information supplied by the Offerors or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise paid or been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligation in this
Section 7(d) to contribute are several in proportion to the respective
amounts of Securities purchased hereunder by each Underwriter and not
joint.
8. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the Closing Date and the Option Securities on any Option
Closing Date are subject to the fulfillment of each of the following
conditions on or prior to the Closing Date and each Option Closing Date:
(a) All the representations and warranties of the
Offerors contained in this Agreement and in any certificate
delivered hereunder shall be true and correct on the Closing Date
and each Option Closing Date with the same force and effect as if
made on and as of the Closing Date or Option Closing Date, as
applicable, except for any such representations and warranties
made as of a specified date, which shall be true and correct as of
such date. The Offerors shall not have failed at or prior to the
Closing Date or Option Closing Date, as applicable, to perform or
23
comply in all respects with any of the agreements herein contained
and required to be performed or complied with by them at or prior
to the Closing Date or Option Closing Date, as applicable.
(b) If the Registration Statement is not effective at
the time of the execution and delivery of this Agreement, the
Registration Statement shall have become effective (or, if a post-
effective amendment is required to be filed pursuant to Rule 430A
under the Act, such post-effective amendment shall have become
effective) not later than 4:30 P.M., Chicago time, on the date
immediately following the date of this Agreement or such later
time as you may approve in writing or, if the Registration
Statement has been declared effective prior to the execution and
delivery hereof in reliance on Rule 430A, the Prospectus shall
have been filed as required thereby, if necessary; and at the
Closing Date and each applicable Option Closing Date, no stop
order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall
have been commenced or shall be pending before or, to the best
knowledge of the Underwriters and the Offerors, threatened by the
Commission. Every request for additional information on the part
of the Commission shall have been complied with to the
Underwriters' satisfaction. No stop order suspending the sale of
the Securities in any jurisdiction referred to in Section 5(g)
shall have been issued, and no proceeding for that purpose shall
have been commenced or shall be pending or threatened.
(c) The Securities shall have been qualified for sale
under the blue sky laws of such states as shall have been
specified by you in accordance with Section 5(g).
(d) The legality and sufficiency of the authorization,
issuance and sale or transfer and sale of the Securities
hereunder, the execution and delivery of this Agreement and all
corporate proceedings and other legal matters incident thereto,
and the form of the Registration Statement and the Prospectus
(except financial statements) shall have been approved by counsel
for the Underwriters exercising reasonable judgment, and no
Underwriter shall have advised the Company that the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of material fact, or omits
to state a fact that in your opinion is material and is required
to be stated therein or is necessary to make the statements
therein not misleading.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any material change, or
any material development involving a prospective change, in or
affecting particularly the business or properties of the Offerors
or the Subsidiaries, whether or not arising in the ordinary course
of business, that, in your judgment, makes it impractical or
inadvisable to proceed with the public offering or purchase of the
Securities as contemplated hereby.
24
(f) You shall have received an opinion (satisfactory
to you and your counsel) dated the Closing Date or the Option
Closing Date, as the case may be, of Xxxxxxxx Xxxxxx LLP, counsel
for the Offerors, to the effect that:
(i) The Company has been duly organized and is
a validly existing corporation in good standing under the
laws of Missouri. Each of the Subsidiaries (other than
the Trust) has been duly organized and is validly
existing as a bank or other entity in good standing under
the laws under which it was organized. Each of the
Company and the Subsidiaries (other than the Trust) has
all necessary power and authority, corporate or
otherwise, to own, lease and operate their respective
properties and assets and to conduct their respective
businesses as described in the Registration Statement and
the Prospectus, and each is duly qualified to do business
as a foreign corporation or other applicable form of
business organization and is in good standing in each
jurisdiction in which its ownership or lease of real
property or the conduct of its business makes such
qualification necessary, except when the failure to so
qualify would not have a Material Adverse Effect.
(ii) Each Offeror has all necessary power and
authority, corporate, trust or otherwise, to enter into
and perform this Agreement, the Indenture, the Trust
Agreement and the Guarantee Agreement, as applicable, and
to effect the transactions contemplated hereby or
thereby. The performance of the Offerors' respective
obligations hereunder and under the Indenture, the Trust
Agreement and the Guarantee Agreement, as applicable,
have been duly authorized by all necessary action. This
Agreement, the Indenture, the Trust Agreement and the
Guarantee Agreement have been duly executed and delivered
by and on behalf of the Trust and/or the Company, as
applicable, and, assuming due authorization, execution
and delivery of such agreements by the other parties
thereto, constitute legal, valid and binding agreements
of the Trust and/or the Company, as applicable,
enforceable in accordance with their respective terms,
except as enforceability of the same may be limited by
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws of
general applicability relating to or affecting creditors'
rights generally and by general equity principles and
limitations under the Act as to the enforceability of
indemnification provisions. No approval, consent, order,
authorization, designation, declaration or filing by or
with any regulatory, administrative or other governmental
body or, to the best of such counsel's knowledge, after
due inquiry, third party, is necessary in connection with
the execution and delivery of this Agreement, the
Indenture, the Trust Agreement or the Guarantee Agreement
and the consummation of the transactions contemplated
herein or therein or as contemplated by the Prospectus
(other than as may be required by the Trust Indenture
Act, the
25
NASD or as required by state securities or blue sky laws,
as to which such counsel need express no opinion) except
such as have been obtained or made, with counsel
specifying the same.
(iii) The authorized capital stock of the
Company is as set forth in the Prospectus under
"Capitalization". Based solely upon a certificate
received from the Company's transfer agent, the issued
and outstanding capital stock of the Company is as set
forth in the Prospectus under "Capitalization". All of
the shares of outstanding capital stock of the Company
have been duly authorized and validly issued, are non-
assessable and were not issued in violation of any
preemptive rights or, to the best of such counsel's
knowledge, other rights to subscribe for or purchase
securities. The shares of outstanding capital stock of
the Company indicated on Schedule II hereto and, based
solely upon a certificate received from the Company, all
other outstanding shares of capital stock of the Company
are fully paid. Except as set forth in the Registration
Statement and the Prospectus and except for stock options
granted to employees and directors of the Company and the
Subsidiaries (which have been described in the
Registration Statement to the extent required by the Act
or the Exchange Act), to the best of such counsel's
knowledge, no options, warrants or other rights to
convert any obligation into, or exchange any securities
for, shares of capital stock or ownership interests in
the Company are outstanding.
(iv) To the best of such counsel's knowledge,
after due inquiry, neither the filing of the Registration
Statement or any amendment thereto nor the offer and sale
of the Securities to the Underwriters as contemplated by
this Agreement gives rise to any rights, nor do any
rights exist, for or relating to the registration under
the Act of any securities of either Offeror.
(v) The Registration Statement has become
effective under the Act, the Prospectus has been filed as
required by this Agreement, if necessary, and to the best
of such counsel's knowledge: (a) after telephonic
inquiry of the Commission, no stop order suspending the
effectiveness of the Registration Statement has been
issued; and (b) no proceedings for that purpose are
pending or have been initiated or threatened by the
Commission. The Registration Statement (including the
information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to
Rule 430A, if applicable), the Prospectus and each
amendment or supplement thereto (except for the financial
statements and other statistical or financial data
included therein, as to which such counsel need express
no opinion) comply as to form in all material respects
with the requirements of the Act and the Rules and
Regulations.
26
(vi) The descriptions in the Registration
Statement and Prospectus of contracts, instruments and
other documents filed as exhibits to the Registration
Statement, and the description of legal and governmental
proceedings, are accurate in all material respects, and
such counsel does not know of any Proceedings required to
be described in the Prospectus that are not described, or
of any contracts or documents of a character required to
be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that were not described and filed as required.
(vii) Neither the filing of the Registration
Statement or any amendment nor the execution and
performance of this Agreement, the Indenture, the Trust
Agreement or the Guarantee Agreement, nor the
consummation of the transactions contemplated herein or
therein, will contravene any of the provisions of, or
result in a default under (nor, to the best of such
counsel's knowledge, has any event occurred which with
notice or lapse of time, or both, would constitute a
breach or default under), any Obligations and Instruments
to which the Trust or the Company is a party or by which
their property is bound (except for such contravention or
default which would not have a Material Adverse Effect),
or violate any of the provisions of the Articles of
Incorporation, as amended, or by-laws of the Company, or
violate any Laws known to such counsel.
(viii) Neither the Trust, the Company nor any
Subsidiary is an "investment company" or a company
controlled by an "investment company" within the meaning
of the Investment Company Act.
(ix) The statements in the Prospectus under
the caption "Description of Trust Preferred Securities,"
"Description of Junior Subordinated Debentures,"
"Description of Guarantee" and "Relationship among the
Trust Preferred Securities, the Junior Subordinated
Debentures and the Guarantee," insofar as such statements
constitute matters of law applicable to the Offerors or
summaries of documents, fairly present the information
required to be included therein in all material respects.
(x) All of the issued and outstanding Common
Securities of the Trust are owned by the Company, free
and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right.
(xi) Each of the Indenture and the Trust
Agreement has been duly qualified under the Trust
Indenture Act.
(xii) The Subordinated Debentures are
subordinate and junior in right of payment to all Senior
Indebtedness of the Company.
27
(xiii) No Tax Event, Capital Treatment Event
or Investment Company Event (each as defined in the
Indenture) has occurred.
(xiv) The statements set forth in the
Prospectus under the caption "Certain United States
Federal Income Tax Consequences" constitute a fair and
accurate summary in all material respects of the matters
addressed therein, based upon current law and the
assumptions stated or referred to therein.
(xv) To the best of such counsel's knowledge
and information after due inquiry, the Trust is not
required to be authorized to do business in any other
jurisdiction, and the Trust is not a party to or
otherwise bound by any agreement other than those
described in the Prospectus.
(xvi) The Company satisfies the registrant
eligibility requirements to use Form S-2 to register
offerings and sales of its securities, and the Offerors
are legally permitted, pursuant to the terms of the Act,
to offer and sell the Securities pursuant to the
Registration Statement.
In addition, such counsel shall state that they have
participated in conferences with officers and other
representatives of the Offerors, representatives of the
independent public accountants of the Company and representatives
of the Underwriters and their counsel, at which the contents of
the Registration Statement and the Prospectus and related matters
were discussed and, although such counsel is not passing upon, and
does not assume any responsibility for, the accuracy, completeness
or fairness of the statements contained in the Registration
Statement and the Prospectus (except as specifically set forth
above) and has not made any independent check or verification
thereof, on the basis of the foregoing (relying as to materiality
upon the statements of officers and other representatives of the
Company), no facts have come to such counsel's attention that lead
such counsel to believe that either the Registration Statement or
any amendment (including any post-effective amendment) thereto at
the time such Registration Statement or amendment became
effective, and as of the Closing Date and any applicable Option
Closing Date, contained or contains an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, or that the Prospectus or any amendment or supplement
thereto as of their respective dates and as of the Closing Date
and any applicable Option Closing Date contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, except that such counsel need
express no views with respect to the financial statements,
schedules and other financial and statistical data included in the
Registration Statement or the Prospectus.
28
(g) You shall have received an opinion (satisfactory
to you and your counsel) dated the Closing Date or the Option
Closing Date, as the case may be, of White & Case, counsel for the
Property Trustee under the Trust Agreement, the Indenture Trustee
under the Indenture and the Guarantee Trustee under the Guarantee
Agreement, to the effect that:
(i) Bankers Trust Company is duly incorporated
and is validly existing in good standing as a banking
corporation with trust powers under the laws of the State
of New York.
(ii) The Indenture Trustee has the requisite
power and authority to execute, deliver and perform its
obligations under the Indenture and has taken all
necessary corporate action to authorize the execution,
delivery and performance by it of the Indenture.
(iii) The Guarantee Trustee has the requisite
power and authority to execute, deliver and perform its
obligations under the Guarantee Agreement and has taken
all necessary corporate action to authorize the
execution, delivery and performance by it of the
Guarantee Agreement.
(iv) The Property Trustee has the requisite
power and authority to execute and deliver the Trust
Agreement and has taken all necessary corporate action to
authorize the execution and delivery of the Trust
Agreement.
(v) Each of the Indenture and the Guarantee
Agreement has been duly executed and delivered by the
Indenture Trustee and the Guarantee Trustee,
respectively, and constitutes a legal, valid and binding
obligation of the Indenture Trustee and the Guarantee
Trustee, respectively, enforceable against the Indenture
Trustee and the Guarantee Trustee, respectively, in
accordance with their respective terms, except that
certain payment obligations may be enforceable solely
against the assets of the Trust and except that such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws affecting
the enforcement of creditors' rights generally, and by
principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether such enforceability
is considered in a proceeding in equity or at law), and
by the effect of applicable public policy on the
enforceability of provisions relating to indemnification
or contribution.
29
(vi) The Junior Subordinated Debentures
delivered on the Closing Date have been duly
authenticated by the Indenture Trustee in accordance with
the terms of the Indenture.
(h) You shall have received an opinion (satisfactory
to you and your counsel) dated the Closing Date or the Option
Closing Date, as the case may be, of Xxxxxxxx, Xxxxxx and Finger,
P.A., special Delaware counsel for the Offerors, to the effect
that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust
under the Delaware Act, and all filings required as of
the date hereof under the Delaware Act with respect to
the creation and valid existence of the Trust as a
business trust have been made.
(ii) Under the Trust Agreement and the
Delaware Act, the Trust has the trust power and authority
to own property and to conduct its business, all as
described in the Prospectus.
(iii) The Trust Agreement constitutes a valid
and binding obligation of the Company and each of the
Property Trustee and the Administrators, and is
enforceable against the Company and each of the Property
Trustee and the Administrators in accordance with its
terms.
(iv) Under the Trust Agreement and the
Delaware Act, the Trust has the trust power and authority
(i) to execute and deliver, and to perform its
obligations under, this Agreement, and (ii) to issue, and
to perform its obligations under, the Securities and the
Common Securities.
(v) Under the Trust Agreement and the Delaware
Act, the execution and delivery by the trust of this
Agreement, and the performance by it of its obligations
hereunder, have been duly authorized by all necessary
trust action on the part of the Trust.
(vi) The Securities and the Common Securities
have been duly authorized by the Trust Agreement and are
duly and validly issued and fully paid and non-assessable
undivided beneficial interests in the assets of the
Trust. The respective holders of the Securities and the
Common Securities, as beneficial owners of the Trust,
will be entitled to the same limitation of personal
liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware.
30
(vii) Under the Trust Agreement and the
Delaware Act, the issuance of the Securities and the
Common Securities is not subject to preemptive or similar
rights.
(viii) The issuance and sale by the Trust of
the Securities and the Common Securities, the purchase by
the Trust of the Subordinated Debentures, the execution,
delivery and performance by the Trust of this Agreement,
the consummation by the Trust of the transactions
contemplated by this Agreement and compliance by the
Trust with its obligations under this Agreement do not
violate (A) any of the provisions of the Certificate of
Trust or the Trust Agreement, or (B) any applicable
Delaware law or administrative regulation.
(i) You shall have received an opinion of Xxxxxx
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx, counsel for the
Underwriters, dated the Closing Date or the Option Closing Date,
as the case may be, in form and substance reasonably satisfactory
to you.
(j) You shall have received, in connection with the
execution of this Agreement and on the Closing Date and each
Option Closing Date, a "cold comfort" letter from Xxxxx & Young
LLP and BDO Xxxxxxx, LLP, dated as of each such date, in form and
substance satisfactory to you, with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus.
(k) You shall have received from the Company a
certificate, signed by the Chief Executive Officer and Chief
Financial Officer of the Company, addressed to the Underwriters
and dated the Closing Date or Option Closing Date, as applicable,
to the effect that:
(i) such officers do not know of any
Proceedings instituted, threatened or contemplated
against the Company of a character required to be
disclosed in the Prospectus that are not so disclosed,
and such officers do not know of any material contract
required to be filed as an exhibit to the Registration
Statement which is not so filed;
31
(ii) such officers have carefully examined the
Registration Statement and the Prospectus and all
amendments or supplements thereto and, in the opinion of
such officers, such Registration Statement or such
amendment as of its effective date and as of the Closing
Date, and the Prospectus or such supplement as of its
date and as of the Closing Date, did not contain an
untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading
and, in the opinion of such officers, since the effective
date of the Registration Statement, no event has occurred
or information become known that should have been set
forth in an amendment to the Registration Statement or a
supplement to the Prospectus which has not been so set
forth in such amendment or supplement;
(iii) the representations and warranties of
the Company set forth in Section 6(a) of this Agreement
are true and correct as of the date of this Agreement and
as of the Closing Date or the Option Closing Date, as the
case may be (except for any such representations and
warranties made as of a specified date, which shall be
true and correct as of such date), and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to such Closing Date; and
(iv) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the
Registration Statement or any amendment thereto; no stop
order suspending the effectiveness of the Registration
Statement has been issued, and, to the best knowledge of
such officers, no proceedings for that purpose have been
instituted or are pending or contemplated under the Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty
of the Company as to the facts required in the immediately
foregoing clauses (iii) and (iv) of this subparagraph to be set
forth in said certificate.
(l) You shall have received from the Trust a
certificate, signed by the Administrators, addressed to the
Underwriters and dated the Closing Date or Option Closing Date, as
applicable, to the effect that:
32
(i) such persons have carefully examined the
Registration Statement and the Prospectus and all
amendments or supplements thereto and, in the opinion of
such persons, such Registration Statement or such
amendment as of its effective date and as of the Closing
Date, and the Prospectus or such supplement as of its
date and as of the Closing Date, did not contain an
untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading
and, in the opinion of such persons, since the effective
date of the Registration Statement, no event has occurred
or information become known that should have been set
forth in an amendment to the Registration Statement or a
supplement to the Prospectus which has not been so set
forth in such amendment or supplement;
(ii) the representations and warranties of the
Trust set forth in Section 6(a) of this Agreement are
true and correct as of the date of this Agreement and as
of the Closing Date or the Option Closing Date, as the
case may be (except for any such representations and
warranties made as of a specified date, which shall be
true and correct as of such date), and the Trust has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to such Closing Date; and
(iii) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the
Registration Statement or any amendment thereto; no stop
order suspending the effectiveness of the Registration
Statement has been issued, and, to the best knowledge of
the respective signers, no proceedings for that purpose
have been instituted or are pending or contemplated under
the Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty
of the Trust as to the facts required in the immediately foregoing
clauses (ii) and (iii) of this subparagraph to be set forth in
said certificate.
(m) You and your counsel shall have received on or
before the Closing Date or the Option Closing Date, as the case
may be, such further documents, opinions, certificates and
schedules or instruments relating to the business, corporate,
legal and financial affairs of the Offerors as you and they shall
have reasonably requested from the Offerors.
9. Termination and Defaults. This Agreement may be
terminated at any time prior to the Closing Date and any exercise of the
option to purchase Additional Securities may be cancelled at any time
prior to any Option Closing Date by the Underwriters by
33
written notice to the Offerors if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change
or development involving a prospective material adverse change in the
condition, financial or otherwise, of the Company, the Subsidiaries and
the Trust, taken as a whole, or the earnings, affairs, management, or
business of the Company, the Subsidiaries and the Trust, taken as a
whole, whether or not arising in the ordinary course of business, that
would, in your sole judgment, make it impracticable to market the
Securities on the terms and in the manner contemplated in the
Prospectus, (ii) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States that, in
your sole judgment, is material and adverse and would, in your sole
judgment, make it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus, (iii) the suspension
or material limitation of trading in securities on AMEX, (iv) the
enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other
governmental authority that in your opinion materially and adversely
affects, or will materially and adversely affect, the business or
operations of the Company, the Subsidiaries and the Trust, taken as a
whole, (v) the declaration of a banking moratorium by either federal or
Missouri state authorities, (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary
or fiscal affairs that in your opinion has a material adverse effect on
the financial markets in the United States or (vii) any change in
financial markets or in political, economic or financial conditions
which, in your sole opinion, either renders it impracticable or
inadvisable to proceed with the offering and sale of the Securities on
the terms set forth in the Prospectus or materially adversely affects
the market for the Securities.
If on the Closing Date or on any Option Closing Date, as the case
may be, any of the Underwriters shall fail or refuse to purchase the
Firm Securities or Additional Securities, as the case may be, which it
has agreed to purchase hereunder on such date, and the aggregate number
of Firm Securities or Additional Securities, as the case may be, that
such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase does not exceed, in the aggregate, 10% of the total number
of Securities that all Underwriters are obligated to purchase on such
date, each non-defaulting Underwriter shall be obligated, in the
proportion which the number of Firm Securities set forth opposite its
name in Schedule I hereto bears to the total number of Firm Securities
or Additional Securities, as the case may be, that all the non-
defaulting Underwriters have agreed to purchase, or in such other
proportion as you may specify, to purchase the Firm Securities or
Additional Securities, as the case may be, that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on
such date. If, on the Closing Date or on the Option Closing Date, as
the case may be, any of the Underwriters shall fail or refuse to
purchase the Firm Securities or Additional Securities, as the case may
be, in an amount that exceeds, in the aggregate, 10% of the total number
of the Securities, and arrangements satisfactory to you and the Offerors
for the purchase of such Securities are not made within 48 hours after
such default, this Agreement shall terminate without liability on the
part of the non-defaulting Underwriters and the Offerors, except as
34
otherwise provided in this Section 9. In any such case that does not
result in termination of this Agreement, either you or the Offerors may
postpone the Closing Date or the Option Closing Date, as the case may
be, for not longer than seven days, in order that the required changes,
if any, in the Registration Statement and the Prospectus or any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve a defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Offerors set forth in or made
pursuant to this Agreement shall remain operative and in full force and
effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any of the Underwriters or by or on
behalf of the Offerors, (ii) acceptance of the Securities and payment
therefor hereunder or (iii) termination of this Agreement.
Notwithstanding any termination of this Agreement, the Company shall be
liable for and shall pay all expenses it has agreed to pay pursuant to
Section 5(k).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of, and shall be binding upon, the Offerors, the
Underwriters, any indemnified person referred to herein and their
respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The terms "successors and
assigns" shall not include a purchaser of any of the Securities from any
of the several Underwriters merely because of such purchase.
10. Effectiveness of Registration Statement. You and the
Offerors will use your and their best efforts to cause the Registration
Statement to become effective, if it has not yet become effective, and
to prevent the issuance of any stop order suspending the effectiveness
of the Registration Statement and, if such stop order be issued, to
obtain as soon as possible the lifting thereof.
11. Miscellaneous. All communications hereunder will be in
writing and, if sent to the Underwriters will be mailed, delivered or
telegraphed and confirmed to you c/o EVEREN Securities, Inc., 00 Xxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Syndicate
Department, with a copy to Xxxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx &
Xxxxxxxxx, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. xxx Xxxxxx; and if sent to the Company or the Trust
will be mailed, delivered or telegraphed and confirmed to the Company or
the Trust at the Company's corporate headquarters, 0000 Xxxxxx Xxxx, Xx.
Xxxxx, Xxxxxxxx 00000, with a copy to Xxxxxxxx Xxxxxx LLP, One
Mercantile Center, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx X. Xxxx.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF.
35
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
36
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Trust and the several Underwriters,
including you.
Very truly yours,
ALLEGIANT BANCORP, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief
Executive Officer
ALLEGIANT CAPITAL TRUST I
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Administrator
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
EVEREN Securities, Inc.
Wheat First Securities
Acting as representatives of the
several Underwriters named in Schedule I.
By: EVEREN Securities, Inc.
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
37
SCHEDULE I
-----------
Number of
Underwriter Trust Preferred Securities
----------- --------------------------
EVEREN Securities, Inc. 790,000
Wheat First Securities 500,000
Advest, Inc. 30,000
Xxxxxxxxxx & Co. Inc. 30,000
Xxxx Xxxxxx Investments Inc. 30,000
Xxxx, Xxxx & Co., Inc. 30,000
Sandler X'Xxxxx & Partners, L.P. 30,000
Xxxxxx, Xxxxxxxx & Company, Incorporated 30,000
Xxxxxxxx Capital Partners, L.P. 30,000
----------
Total 1,500,000
==========
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SCHEDULE II
---------------
A. 851,625 shares of Common Stock issued in connection with a rights
offering completed on March 11, 1997.
B. 669,621 shares of Common Stock issued in connection with a rights
offering completed on December 3, 1997.
C. 898,689 shares of Common Stock issued in connection with the
acquisition of Reliance Financial, Inc.
[FN]
--------
Each as adjusted to give effect to the five-for-four stock split
effected by the Company in January 1998 and the six-for-five stock
split effected by the Company in January 1999.
39
