Exhibit 1
751,045 Shares
(plus 112,655 Shares to cover over-allotments, if any)
GOLD BANC CORPORATION, INC.
Common Stock, Par Value $1.00 Per Share
UNDERWRITING AGREEMENT
----------------------
____________, 1999
ADVEST, INC.
As Representative (the "Representative") of the
Several Underwriters Named in Schedule I hereto
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentleman:
Certain stockholders of Gold Banc Corporation, Inc., a Kansas corporation
(the "Company") listed on Schedule II hereto (the "Selling Shareholders"),
propose, subject to the terms and conditions stated herein, to sell to the
several Underwriters named in Schedule I hereto (the "Underwriters"), an
aggregate of _________ shares (the "Firm Shares") of Common Stock, $1.00 par
value (the "Common Stock"), of the Company. Each Selling Shareholder shall sell
the number of Firm Shares set forth opposite its name on Schedule II hereto. If
the Representative is the only firm named in Schedule I hereto, then the terms
"Underwriters" and "Representative," as used herein, shall each be deemed to
refer to such firm.
In addition, in order to cover over-allotments in the sale of the Firm
Shares, the Underwriters may, at the Representative's election and subject to
the terms and conditions stated herein, purchase ratably in proportion to the
amounts set forth opposite their respective names in Schedule I hereto, up to
112,655 additional shares of Common Stock from the Selling Shareholder (such
additional shares of Common Stock, the "Optional Shares"). Each Selling
Shareholder shall sell a number of Optional Shares equal to the proportion of
the Firm Shares sold by such Selling Shareholder to the total number of Firm
Shares. The Firm Shares and the Optional Shares are referred to collectively as
the "Shares."
The Selling Shareholders and the Company, intending to be legally bound,
hereby confirm their agreement as follows:
1. Representations and Warranties of the Selling Shareholders. The Selling
Shareholders represent and warrant to, and agree with, the Company and the
Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of the Selling Shareholders, and assuming due execution by the
Company and the Representative, constitutes the valid and binding agreement of
the Selling Shareholders, enforceable against the Selling Shareholders in
accordance with its terms.
(b) The execution and delivery by the Selling Shareholders of, and
the performance by the Selling Shareholders of their obligations under, this
Agreement and the Power of Attorney appointing certain individual(s) as such
Selling Shareholders' attorney(s)-in-fact to the extent set forth therein,
relating to the transactions contemplated hereby and by the Registration
Statement (as hereinafter defined) (the "Power of Attorney") will not (with or
without the giving of notice or the passage of time or both) (i) conflict with
any term or provision of the Selling Shareholders' organizational documents, as
amended, (ii) result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which any Selling
Shareholder is a party or to which its properties or assets is subject or (iii)
conflict with or violate any law, statute, rule or regulation or any order,
judgment or decree of any court or governmental agency or body having
jurisdiction over the Selling Shareholders or any of the Selling Shareholders'
properties or assets.
(c) The Selling Shareholders will have, as of each Time of Delivery
(as hereinafter defined), valid title to the Shares and the legal right and
power, and all authorization and approval required by law, to enter into this
Agreement and the Power of Attorney and to sell, transfer and deliver the
Shares.
(d) The Power of Attorney has been duly authorized, executed and
delivered by the Selling Shareholders and is a valid and binding agreement of
the Selling Shareholders.
(e) Upon delivery of the certificates for the Shares properly
indorsed to the Underwriters and payment of the purchase price therefor pursuant
to this Agreement, title to such Shares will be passed to the Underwriters, free
and clear of all liens, security interests, pledges, charges, equities, and
other encumbrances, other than as created by or through the Underwriters.
(f) The Selling Shareholders do not require any consent, approval,
authorization, order or declaration of or from, or registration, qualification
or filing with, any court or governmental agency or body in connection with the
sale of the Shares to be sold by the Selling Shareholders or the consummation of
the transactions contemplated by this Agreement, except for the registration of
the Shares under the Securities Act, and such as may be required by the NASD (as
hereinafter defined) and under state securities or blue sky laws in connection
with the offer, sale and distribution of the Shares by the Underwriters.
(g) The Selling Shareholders have not (i) taken, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the
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Company to facilitate the sale or resale of the Shares or (ii) since the filing
of the Registration Statement (A) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of, the Shares or (B) paid or agreed to
pay to any person any compensation for soliciting another to purchase any other
securities of the Company, other than pursuant to this Agreement.
(h) The information set forth in the section entitled "Selling
Stockholders" was the only written information furnished to the Company by and
on behalf of any Selling Shareholder expressly for use in connection with the
preparation of the Registration Statement, and is correct and complete in all
material respects and does not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
Any certificate signed by any Selling Shareholder or any authorized
representative of any Selling Shareholder and delivered to the Representative or
to counsel for the Underwriters shall be deemed a representation and warranty of
the Selling Shareholders to the Underwriters as to the matters covered thereby.
Any certificate delivered by the Selling Shareholders to their counsel for
purposes of enabling such counsel to render an opinion pursuant to Section 10
will also be furnished to the Representative and counsel for the Underwriters
and shall be deemed to be additional representations and warranties to the
Underwriters by the Selling Shareholders as to the matters covered thereby.
2. Representations and Warranties of the Company. The Company represents
and warrants to each of the Underwriters and the Selling Shareholders as of the
date hereof and as of each Time of Delivery, and agrees with, the Underwriters
and the Selling Shareholders that:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act. The Company has filed with the Securities and Exchange
Commission (the "Commission") a post-effect amendment to a registration
statement on Form S-4 (No. 333-65539) and a related preliminary prospectus
for the registration of the Shares under the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations thereunder
(the "Securities Act Regulations"). The Company has prepared and filed such
amendments thereto, if any, and such amended preliminary prospectuses, if
any, as may have been required to the date hereof, and will file such
additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement and the post-effective
amendment have been declared effective under the Securities Act by the
Commission. The post-effective amendment as amended at the time it became
effective (including the Prospectus and all information deemed to be a part
of the post effective amendment at the time it became effective pursuant to
Rule 430A(b) of the Securities Act Regulations) is hereinafter called the
"Registration Statement," except that, if the Company files a further post-
effective amendment to such post-effective amendment which becomes
effective prior to the First Time of Delivery, "Registration Statement"
shall refer to such post-effective amendment as so amended. Each prospectus
included in the Registration Statement and also relating to the offering of
the Shares, or amendments
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thereof, before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company with the consent of the Representative
pursuant to Rule 424(a) of the Securities Act Regulations and also relating to
the offering of the Shares (including the documents incorporated by reference
therein) is hereinafter called the "Preliminary Prospectus." The term
"Prospectus" means the final prospectus relating to the sale of the Shares
(including the documents incorporated by reference therein, if any), as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Securities Act Regulations. The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus.
(b) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Kansas with full
power and authority (corporate and other) to own, lease, and operate its
properties and conduct its business as described in the Prospectus (as defined
in Section 2(a) of this Agreement); the Company is duly registered under the
Bank Holding Company Act of 1956, as amended (the "BHCA"); the Company has no
subsidiaries except those described in the Registration Statement (each a
"Subsidiary"); the Company owns, directly or indirectly, beneficially and of
record all of the outstanding capital stock of each Subsidiary free and clear of
any claim, lien, encumbrance or security interest, except as described in the
Prospectus. The Company and each of its Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which any of them own or lease properties, has an office, or in which the
business conducted by any of them make such qualification necessary, except
where the failure to so qualify would not have a material adverse effect on the
condition (financial or otherwise), business, prospects, assets, properties,
results of operations, or net worth of the Company and its Subsidiaries taken as
a whole ("Material Adverse Effect"); and no proceeding has been instituted in
any jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
(c) The Company's authorized, issued and outstanding capital stock is
as disclosed in the Prospectus as of the date set forth therein (except for
subsequent issuance, if any, pursuant to reservations, agreements, or employee
benefit plans described in the Prospectus or pursuant to the exercise of
convertible securities or options described in the Prospectus). All of the
issued shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform to the descriptions
of the Common Stock contained in the Prospectus. None of the issued and
outstanding shares of capital stock of the Company or any of its subsidiaries
has been issued in violation of any statutory preemptive rights of shareholders.
(d) Except as disclosed in the Prospectus (and except for subsequent
issuances of options, capital stock, or other rights under agreements, employee
benefit plans, or other arrangements referred to in the Prospectus), there are
no outstanding (i) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of the
Company or any of its subsidiaries, (ii) warrants, rights or options to
subscribe for or purchase from the Company or any of its subsidiaries any such
capital stock or any such convertible or exchangeable securities or obligations
or (iii) obligations of the Company or any of its subsidiaries to issue any
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shares of capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(e) Except as disclosed in or contemplated by the Registration
Statement or the Prospectus, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) neither the
Company nor any of its subsidiaries has incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Company and its subsidiaries taken
as a whole, (ii) the Company has not purchased any of its outstanding capital
stock or declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock, (iii) there has not been any material change in the
capital stock, or a material increase in long-term debt or short-term debt of
the Company or any of its subsidiaries, and (iv) there has not been any material
adverse change to, or any development which is reasonably likely to have a
Material Adverse Effect on, the Company or its subsidiaries taken as a whole.
(f) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company owned or to be
owned by such person or, requiring the Company to include such securities in the
securities registered pursuant to the Registration Statement (or any such right
has been effectively waived) or requiring the registration of any securities
pursuant to any other registration statement filed by the Company under the
Securities Act. Neither the filing of the Registration Statement nor the
offering or sale of Shares as contemplated by this Agreement gives any security
holder of the Company any rights for or relating to the registration of any
shares of Common Stock or any other capital stock of the Company, except such as
have been satisfied or waived.
(g) Neither the Company nor any Subsidiary, is, or with the giving of
notice or lapse of time or both will be, in violation or breach of, or in
default under, nor will the execution or delivery of, or the performance and
consummation of the transactions contemplated by this Agreement, conflict with,
or result in a violation or breach of, or constitute a default under, any
provision of the organization documents of the Articles of Incorporation (as
amended or restated), Bylaws (as amended or restated) of the Company, or other
governing documents of the Company or any Subsidiary, or of any provision of any
agreement, contract, mortgage, deed of trust, lease, loan agreement, indenture,
note, bond, or other evidence of indebtedness, or other material agreement or
instrument to which the Company or any Subsidiary is a party or by which any of
them is bound or to which any of their properties is subject, nor will the
performance by the Company of their obligations hereunder violate any rule,
regulation, order, or decree, applicable to the Company or any Subsidiary of any
court or any regulatory body, administrative agency, or other governmental body
having jurisdiction over the Company or any Subsidiary or any of their
respective properties, or any order of any court or governmental agency or
authority entered in any proceeding to which the Company or any Subsidiary was
or is now a party or by which it is bound, except those, if any, described in
the Prospectus or which are not material to the Company taken as a whole.
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No consent, approval, filing, authorization, registration, qualification, or
order, including with or by any bank regulatory agency, is required for the
execution, delivery, and performance of this Agreement or the consummation of
the transactions contemplated by this Agreement, other than such that have been
obtained or made, except for compliance with the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Blue Sky Laws
applicable to the public offering of the Shares by the Underwriters, the
clearance of such offering and the underwriting arrangements evidenced hereby
with the National Association of Securities Dealers, Inc. ("NASD"), and the
listing of the Shares on the Nasdaq Stock Market. This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and
binding obligation of the Company and is enforceable against the Company in
accordance with its terms.
(h) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary Prospectus complies
in all material respects with the requirements of the Securities Act and the
Securities Act Regulations. As of the effective date of the Registration
Statement, and at all times subsequent thereto up to each Time of Delivery, the
Registration Statement and the Prospectus, and any amendments or supplements
thereto, contained or will contain all material statements that are required to
be stated therein in accordance with the Securities Act and the Securities Act
Regulations and conformed or will conform in all material respects to the
requirements of the Securities Act and the Securities Act Regulations, and
neither the Registration Statement nor the Prospectus, nor any amendment or
supplement thereto included or will include any untrue statement of a material
fact or omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that no representation or warranty is made as to information contained
in or omitted from the Registration Statement, the Prospectus or any amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company on behalf of the Underwriters or by the Selling
Shareholders.
(i) KPMG LLP, which has audited, reviewed, and expressed its opinion
with respect to certain of the financial statements and schedules filed with the
Commission as a part of the Registration Statement and included or to be
included, as the case may be, in the Prospectus and in the Registration
Statement, and whose report is included in the Prospectus and the Registration
Statement, are independent accountants as required by the Securities Act and the
Securities Act Regulations.
(j) The financial statements and schedules and the related notes
thereto included or to be included, as the case may be, in the Registration
Statement, the Preliminary Prospectus, and the Prospectus present fairly the
financial position of the entities purported to be shown thereby as of the
respective dates of such financial statements and schedules, and the results of
operations and changes in equity and in cash flows of the entities purported to
be shown thereby for the respective periods covered thereby, all in conformity
with generally accepted accounting principles consistently applied throughout
the periods involved, except as may be disclosed in the Prospectus. All
adjustments necessary for a fair presentation of the results of such periods
have been made. The financial, operating, and statistical information set forth
in the Prospectus
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under captions "Prospectus Summary" and "Selected Consolidated Financial Data"
are fairly presented and prepared on a basis consistent with the audited
financial statements of the Company.
(k) There is no litigation or governmental proceeding, action, or
investigation pending or, to the knowledge of the Company, threatened, to which
the Company or any Subsidiary is or may be a party or to which property owned or
leased by the Company or any Subsidiary is or may be subject, or related to
environmental or discrimination matters, which is required to be disclosed in
the Registration Statement or the Prospectus by the Securities Act or the
Securities Act Regulations and is not so disclosed, or which questions the
validity of this Agreement or any action taken or to be taken pursuant hereto.
(l) Either the Company or a Subsidiary, as the case may be, has good
and marketable title in fee simple to all items of real property and good and
marketable title to all the personal properties and assets reflected as owned by
the Company or a Subsidiary in the Prospectus (or elsewhere in the Registration
Statement), in each case clear of all liens, mortgages, pledges, charges, or
encumbrances of any kind or nature except those, if any, reflected in the
financial statements described above (or elsewhere in the Registration
Statement) or which are not material to the Company and its Subsidiaries taken
as a whole; all properties held or used by the Company or a Subsidiary under
leases, licenses, franchises or other agreements are held by them under valid,
existing, binding, and enforceable leases, franchises, licenses, or other
agreements with respect to which it is not in default.
(m) Neither the Company nor any Subsidiary has taken or will take,
directly or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, stabilization
or manipulation, under the Exchange Act or otherwise, of the price of the
Shares.
(n) Except as reflected in or contemplated by the Registration
Statement, since the respective dates as of which information is given in the
Registration Statement and prior to each Time of Delivery:
(i) neither the Company nor any Subsidiary has or will have
incurred any material liabilities or obligations, direct or contingent, or
entered into any material transaction not in the ordinary course of
business without the prior consent of the Representative;
(ii) neither the Company nor any Subsidiary has or will have
paid or declared any dividend or other distribution with respect to its
capital stock and neither the Company nor any Subsidiary has or will be
delinquent in the payment of principal or interest on any outstanding debt
obligations; and
(iii) there has not been and will not be any change in the
capital stock or any material change in the indebtedness of the Company or
any Subsidiary, or any adverse change in the condition (financial or
otherwise), or any
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development involving a prospective adverse change in their respective
businesses (resulting from litigation or otherwise), prospects, properties,
condition (financial or otherwise), net worth, or results of operations
which is material to the Company and its Subsidiaries taken as a whole.
(o) There is no contract or other document, transaction, or
relationship required to be described in the Registration Statement, or to be
filed as an exhibit to the Registration Statement, by the Securities Act or by
the Securities Act Regulations that has not been described or filed as required.
(p) All documents delivered or to be delivered by the Company or any
of their representatives in connection with the issuance and sale of the Shares
were on the dates on which they were delivered, or will be on the dates on which
they are to be delivered, true, complete, and correct in all material respects.
(q) The Company and each Subsidiary have filed all necessary federal
and all state and foreign income and franchise tax returns and paid all taxes
shown as due thereon; and no tax deficiency has been asserted or threatened
against the Company or any Subsidiary that would have a Material Adverse Effect,
except as described in the Prospectus.
(r) Neither the Company nor any Subsidiary has, directly or
indirectly, at any time:
(i) made any unlawful contribution to any candidate for
political office, or failed to disclose any contribution in violation of
law; or
(ii) made any payment to any federal, state, local, or foreign
government officer or official, or other person charged with similar public
or quasi-public duties, other than payments required or permitted by the
laws of the United States or any jurisdiction thereof or applicable foreign
jurisdictions.
(s) The Company or a Subsidiary owns or possesses adequate rights to
use all patents, patent applications, trademarks, service marks, trade names,
trademark registrations, servicemark registrations, copyrights, and licenses
necessary for the conduct of the business of the Company and the Subsidiaries or
ownership of their respective properties, and neither the Company nor any
Subsidiary has received notice of conflict with the asserted rights of others in
respect thereof which has not been resolved.
(t) The Company and each Subsidiary have in place and effective such
policies of insurance, with limits of liability in such amounts, as are normal
and prudent in the ordinary scope of business similar to that of the Company and
such Subsidiary in the respective jurisdiction in which they conduct business.
(u) The Company and each Subsidiary have and hold, and at each Time
of Delivery will have and hold, and are operating in compliance with, and have
fulfilled and performed all of their material obligations with respect to, all
permits, certificates, franchises, grants, easements, consents, licenses,
approvals, charters,
8
registrations, authorizations, and orders (collectively, "Permits") required
under all laws, rules, and regulations in connection with their respective
businesses, and all of such Permits are in full force and effect; and there is
no pending proceeding, and neither the Company nor any Subsidiary has received
notice of any threatened proceeding, relating to the revocation or modification
of any such Permits. Neither the Company nor any Subsidiary is (by virtue of any
action, omission to act, contract to which it is a party or by which it is
bound, or any occurrence or state of facts whatsoever) in violation of any
applicable federal, state, municipal, or local statutes, laws, ordinances,
rules, regulations and/or orders issued pursuant to foreign, federal, state,
municipal, or local statutes, laws, ordinances, rules, or regulations (including
those relating to any aspect of banking, bank holding companies, environmental
protection, occupational safety and health, and equal employment practices)
heretofore or currently in effect, except such violation that has been fully
cured or satisfied without recourse or that is not reasonably likely to have a
Material Adverse Effect.
(v) The provisions of any employee pension benefit plan ("Pension
Plan") as defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), in which the Company or any Subsidiary is a
participating employer are in substantial compliance with ERISA, and neither the
Company nor any Subsidiary is in violation of ERISA. The Company, each
Subsidiary, or the plan sponsor thereof, as the case may be, has duly and timely
filed the reports required to be filed by ERISA in connection with the
maintenance of any Pension Plans in which the Company or any Subsidiary is a
participating employer, and no facts, including any "reportable event" as
defined by ERISA and the regulations thereunder, exist in connection with any
Pension Plan in which the Company or any Subsidiary is a participating employer
which might constitute grounds for the termination of such plan by the Pension
Benefit Guaranty Corporation or for the appointment by the appropriate U.S.
District Court of a trustee to administer any such plan. The provisions of any
employee benefit welfare plan, as defined in Section 3(1) of ERISA, in which the
Company or any Subsidiary is a participating employer, are in substantial
compliance with ERISA, and the Company, any Subsidiary, or the plan sponsor
thereof, as the case may be, has duly and timely filed the reports required to
be filed by ERISA in connection with the maintenance of any such plans.
(w) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is, or is required to
be, registered under Section 8 of the Investment Company Act of 1940, as
amended, or subject to regulation under such Act.
(x) Exchange National Bank, Provident Bank, f.s.b., Farmers National
Bank, Peoples National Bank, Citizens State Bank and Trust Company, First
National Bank in ▇▇▇▇, Farmers State Bank, The First State Bank and Trust
Company, Peoples State Bank, The Trust Company, and Citizens Bank of Tulsa, hold
deposits that are insured by the Federal Deposit Insurance Corporation ("FDIC")
up to the legal limits. Each of Exchange National Bank, Farmers National Bank,
Peoples National Bank, First National Bank in ▇▇▇▇ and Citizens Bank of Tulsa
are members in good standing of the Federal Reserve System.
9
(y) Neither this Agreement nor any certificate, statement or other
document delivered or to be delivered by the Company or any Subsidiary contains
or will contain any untrue statement of a material fact or omits or will omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
Any certificate signed by any director or officer of the Company and
delivered to the Representative or to counsel for the Underwriters shall be
deemed a representation and warranty of the Company to the Underwriters as to
the matters covered thereby.
Any certificate delivered by the Company to their counsel for purposes of
enabling such counsel to render an opinion pursuant to Section 10 will also be
furnished to the Representative and counsel for the Underwriters and shall be
deemed to be additional representations and warranties to the Underwriters by
the Company as to the matters covered thereby.
3. Purchase and Sale of Shares.
(a) Subject to the terms and conditions herein set forth, the Selling
Shareholders agree to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Selling
Shareholders, at a purchase price of ___________________________ ($_____) per
share (the "Per Share Price"), the number of Firm Shares (to be adjusted by the
Representative so as to eliminate fractional shares) set forth opposite the name
of such Underwriter in Schedule I hereto.
(b) The Selling Shareholders hereby grant to the Underwriters the
right to purchase at the Representative's election in whole or in part from time
to time up to ________ Optional Shares, at the Per Share Price, for the sole
purpose of covering over-allotments in the sale of the Firm Shares. Any such
election to purchase Optional Shares may be exercised by written notice from the
Representative to the Selling Shareholders, given at any time (but not more than
once) within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by the
Representative but in no event earlier than the First Time of Delivery (as
hereinafter defined) or, unless the Representative otherwise agrees in writing,
earlier than two or later than ten business days after the date of such notice.
In the event the Underwriters elect to purchase all or a portion of the Optional
Shares, the Selling Shareholders agree to furnish or cause to be furnished to
the Representative the certificates, letters and opinions, and to satisfy all
conditions, set forth in Section 10 hereof at the Subsequent Time of Delivery
(as hereinafter defined).
(c) In making this Agreement, each Underwriter is contracting
severally, and not jointly, and except as provided in Sections 3(b) and 13
hereof, the agreement of each Underwriter is to purchase only that number of
shares specified with respect to that Underwriter in Schedule I hereto. No
Underwriter shall be under any obligation to purchase any Optional Shares prior
to an exercise of the option with respect to such Shares granted pursuant to
Section 3(b) hereof.
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4. Representations and Warranties of the Underwriters. The
Representative, on behalf of the Underwriters, represents and warrants to the
Company and the Selling Shareholders that the information set forth (a) in the
last paragraph in the box on the left of the front cover page of the Prospectus
and (b) in the third and eighth paragraphs of the section in the Prospectus
entitled "Underwriting" was the only written information furnished to the
Company by and on behalf of any Underwriter expressly for use in connection with
the preparation of the Registration Statement, and is correct and complete in
all material respects and does not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
5. Offering by the Underwriters. Upon the authorization by the
Representative of the release of the Shares, the several Underwriters propose to
offer the Shares for sale upon the terms and conditions disclosed in the
Prospectus.
6. Delivery of Shares, Closing. Certificates in definitive form for the
Shares to be purchased by each Underwriter hereunder, and in such denominations
and registered in such names as the Representative may request upon at least 48
hours' prior notice to the Company, shall be delivered by or on behalf of the
Selling Shareholders to the Representative for the account of each Underwriter,
against payment by such Underwriter on its behalf of the purchase price therefor
by wire transfer of immediately available funds to such accounts as the Selling
Shareholders shall designate in writing. The closing of the sale and purchase of
the Shares shall be held at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. The time and date of such delivery and payment
shall be, with respect to the Firm Shares, at 9:00 a.m., Eastern Time, on the
fourth (4th) full business day after this Agreement is executed or at such other
time and date as the Representative and the Selling Shareholders may agree upon
in writing, and, with respect to the Optional Shares, at 9:00 a.m., Eastern
Time, on the date specified by the Representative in the written notice given by
the Representative of the Underwriters' election to purchase all or part of such
Optional Shares, or at such other time and date as the Representative and the
Selling Shareholders may agree upon in writing. Such time and date for delivery
of the Firm Shares is herein called the "First Time of Delivery," such time and
date for delivery of any Optional Shares, if not the First Time of Delivery, is
herein called a "Subsequent Time of Delivery," and each such time and date for
delivery is herein called a "Time of Delivery." The Selling Shareholders will
make such certificates available for checking and packaging at least 24 hours
prior to each Time of Delivery at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other location specified by the
Representative in writing at least 48 hours prior to such Time of Delivery.
7. Covenants of the Selling Shareholders. The Selling Shareholders
covenant and agree with the Underwriters that:
(a) The Selling Shareholders will cooperate to the extent necessary
to cause the Registration Statement, if not effective prior to the execution and
delivery of this Agreement, to become effective.
11
(b) The Selling Shareholders will pay all federal and other taxes, if
any on the transfer or sale of the Shares.
(c) The Selling Shareholders will do or perform all things required
to be done or performed by the Selling Shareholders prior to each Time of
Delivery to satisfy all conditions precedent to the delivery of the Shares
pursuant to this Agreement.
(d) The Selling Shareholders will use their best efforts to satisfy
or cause to be satisfied the conditions to the obligations of the Underwriters
in Section 10 hereof to the extent within their control.
(e) The Selling Shareholders will perform all of their obligations
under the Registration Rights Agreement entered between the Selling Shareholders
and the Company on December 10, 1998 pertaining to the offering of the Shares
(the "Registration Rights Agreement").
(f) The Selling Shareholders have not taken, nor will they take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of
Common Stock to facilitate the sale or resale of the Shares.
8. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) If any information shall have been omitted from the Registration
Statement in reliance upon Rule 430A, the Company, at the earliest possible
time, will furnish the Representative with copies of the Prospectus to be filed
by the Company with the Commission to comply with Rule 424(b) and Rule 430A
under the Securities Act, and will file such Prospectus with the Commission in
compliance with such Rules. Upon compliance with such Rules, the Company will so
advise the Representative promptly. The Company will advise the Representative
and counsel to the Underwriters promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of
the institution of any proceedings for that purpose, or of any notification
received by the Company of the suspension of qualification of the Common Stock
for sale in any jurisdiction or the initiation or threatening of any proceedings
for that purpose, or of any notification received by the Company of the
suspension of qualification of the Common Stock for sale in any jurisdiction or
the initiation or threatening of any proceedings for that purpose. The Company
also will advise the Representative and counsel to the Underwriters promptly of
any request of the Commission for amendment or supplement of the Registration
Statement, of any Preliminary Prospectus, or of the Prospectus, or for
additional information, and the Company will not file any amendment or
supplement to the Registration Statement (either before or after it becomes
effective), to any Preliminary Prospectus, or to the Prospectus (including a
prospectus filed pursuant to Rule 424(b)) if the Representative has not been
furnished with copies prior to such filing or if the Representative reasonably
objects to such filing.
12
(b) For the period during which a Prospectus relating to the Common
Stock is required to be delivered under the Securities Act, the Company shall
comply with all requirements imposed on them by the Securities Act, as now and
hereafter amended, and by the Securities Act Regulations, as from time to time
in force, so far as is necessary to permit the continuance of sales or dealings
in the Common Stock as contemplated by the provisions hereof and the Prospectus.
If any event occurs as a result of which the Prospectus, including any
subsequent amendment or supplement, would include an untrue statement of a
material fact, or would omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it becomes
necessary at any time to amend the Prospectus, including any amendment or
supplement thereto, to comply with the Securities Act, the Company promptly will
advise the Representative and counsel to the Underwriters thereof and the
Company will promptly prepare and file with the Commission an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance; and, if any Underwriter is required to deliver a
prospectus nine (9) months or more after the effective date of the Registration
Statement, the Company, upon request of the Representative but at the expense of
such Underwriter, will prepare promptly such prospectus or prospectuses as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of
the Securities Act.
(c) The Company will not, prior to the Subsequent Time of Delivery or
thirty (30) days after the date of this Agreement, whichever occurs first,
without the prior consent of the Representative, incur any material liability or
obligation, direct or contingent, or enter into any material transaction, other
than in the ordinary course of business, or any transaction with a related party
which is required to be disclosed in the Prospectus pursuant to Item 404 of
Regulation S-K under the Securities Act, except as contemplated by the
Prospectus.
(d) The Company will make generally available to its security holders
and the Representative an earnings statement of the Company as soon as
practicable, but in no event later than fifteen (15) months after the end of the
Company's current fiscal quarter, covering a period of twelve (12) consecutive
calendar months beginning after the effective date of the Registration
Statement, but beginning not later than four (4) months after such effective
date, which will satisfy the provisions of the last subsection of Section 11(a)
of the Securities Act and Rule 158 promulgated thereunder.
(e) During such period as a prospectus is required by law to be
delivered in connection with sales by an underwriter or dealer, the Company will
furnish to the Representative, at the expense of the Company, copies of the
Registration Statement, the Prospectus, any Preliminary Prospectus, and all
amendments and supplements to any such documents, in each case as soon as
available and in such quantities as the Representative may reasonably request,
for the purposes contemplated by the Securities Act.
(f) The Company will use its best efforts to take or cause to be
taken in cooperation with the Representative and counsel to the Underwriters all
actions
13
required in qualifying or registering the Common Stock for sale under the Blue
Sky Laws of such jurisdictions as the Representative may reasonably designate,
provided the Company shall not be required to qualify generally as a foreign
corporation or as a dealer in securities or to consent generally to the service
of process under the law of any such state (except with respect to the offering
and sale of the Common Stock), and will continue such qualifications or
registrations in effect so long as reasonably requested by the Representative to
effect the distribution of the Common Stock (including, without limitation,
compliance with all undertakings given pursuant to such qualifications or
registrations). In each jurisdiction where any of the Common Stock shall have
been qualified as provided above, the Company will file such reports and
statements as may be required to continue such qualification for a period of not
less than one (1) year from the date of this Agreement.
(g) The Company will furnish to its security holders annual reports
containing financial statements audited by independent public accountants.
During the period ending three (3) years after the date of this Agreement, (i)
as soon as practicable after the end of the fiscal year, the Company will
furnish to the Representative two copies of the annual report of the Company
containing the audited consolidated balance sheet of the Company as of the close
of such fiscal year and corresponding audited consolidated statements of
earnings, stockholders' equity and cash flows for the year then ended, and (ii)
the Company will file promptly and will furnish to the Representative at or
before the filing thereof copies of all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13, 14, or 15 of the Exchange Act. During such three-year
period the Company also will furnish to the Representative one copy of the
following:
(i) as soon as practicable after the filing thereof, each
other report, statement, or other document filed by the Company with the
Commission;
(ii) as soon as practicable after the filing thereof, all
reports, statements, other documents and financial statements furnished by
the Company to Nasdaq pursuant to requirements of or agreements with
Nasdaq; and
(iii) as soon as available, each report, statement, or other
document of the Company mailed to its stockholders.
(h) If the delivery of a prospectus relating to the Shares is
required under the Securities Act at any time prior to the expiration of nine
months after the date of the Prospectus and if at such time any events have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if for any
reason it is necessary during such same period to amend or supplement the
Prospectus, the Company will promptly notify the Representative and upon its
request (but at the Company's expense) prepare and file with the Commission an
amendment or supplement to the Prospectus that corrects such statement or
omission or effects such compliance and will furnish without charge to the
Underwriters and to any dealer in
14
securities as many copies of such amended or supplemented Prospectus as the
Representative may from time to time reasonably request.
(i) The Company will promptly provide the Representative, without
charge, (i) 2 manually executed copies of the Registration Statement as
originally filed with the Commission and of each amendment thereto, including
all exhibits and all documents or information incorporated by reference therein,
(ii) so long as a prospectus relating to the Shares is required to be delivered
under the Securities Act, as many copies of each Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto as the Representative may
reasonably request. The terms "amendment" and "supplement" as used in this
Agreement shall include all documents subsequently filed by the Company with the
Commission pursuant to the Exchange Act, as amended, that are deemed to be
incorporated by reference in the Prospectus.
(j) Prior to the termination of the underwriting contemplated by this
Agreement, neither the Company nor any of its officers, directors or affiliates
will (i) take, directly or indirectly, any action designed to cause or to result
in, or that might reasonably be expected to cause or result in, the
stabilization or manipulation of the price of any security of the Company or
(ii) sell, bid for, purchase (except pursuant to previously authorized dividend
reinvestment purchases) or pay anyone any compensation for soliciting purchases
of, the Shares.
(k) In case of any event, at any time within the period during which
a prospectus is required to be delivered under the Securities Act, as a result
of which any Preliminary Prospectus or the Prospectus, as then amended or
supplemented, would contain an untrue statement of a material fact, or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, or, if it
is necessary at any time to amend any Preliminary Prospectus or the Prospectus
to comply with the Securities Act or any applicable securities or blue sky laws,
the Company promptly will prepare and file with the Commission, and any
applicable state securities commission, an amendment, supplement or document
that will correct such statement or omission or effect such compliance and will
furnish to the several Underwriters such number of copies of such amendment(s),
supplement(s) or document(s) as the Representative may reasonably request. For
purposes of this subsection (k), the Company will provide such information to
the Representative, the Underwriters' counsel and counsel to the Company as
shall be necessary to enable such persons to consult with the Company with
respect to the need to amend or supplement the Registration Statement, any
Preliminary Prospectus or the Prospectus or file any document, and shall furnish
to the Representative and the Underwriters' counsel such further information as
each may from time to time reasonably request.
(l) The Company will use its best efforts to maintain the
qualification or listing of the shares of Common Stock (including, without
limitation, the Shares) on the Nasdaq National Market System.
15
(m) The Company will use its best efforts to satisfy or cause to be
satisfied the conditions to the obligations of the Underwriters in Section 10
hereof.
(n) The Company will perform all of its obligations under the
Registration Rights Agreement
9. Expenses.
(a) Whether or not the transactions contemplated hereunder are
consummated, or if this Agreement is terminated for any reason, the Company will
pay or cause to be paid the costs, fees, and expenses incurred in connection
with the offering of the Shares as follows:
(i) All costs, fees, and expenses incurred in connection with
the performance of the obligations of the Company hereunder, including all
fees and expenses of the Company accountants and counsel, all costs and
expenses incurred in connection with the preparation, printing, filing, and
distribution (including delivery and shipping costs) of the Registration
Statement, each Preliminary Prospectus, and the Prospectus (including all
amendments and exhibits thereto and the financial statements therein), and
agreements and supplements provided for herein, this Agreement and other
underwriting documents, including various Underwriters' letters, and the
Preliminary and Supplemental Blue Sky Memoranda;
(ii) All filing and registration fees and expenses, including
the legal fees and disbursements of counsel, incurred in connection with
qualifying or registering all or any part of the Shares for offer and sale
under the Blue Sky Laws; and
(iii) All other costs and expenses incident to the performance
of the Company's obligations hereunder which are not otherwise provided for
in this Section 9(a).
(b) Whether or not the transactions contemplated hereunder are
consummated, or if this Agreement is terminated for any reason, the Selling
Shareholders will pay or cause to be paid the costs, fees, and expenses incurred
in connection with the offering of the Shares as follows:
(i) All costs, fees, and expenses incurred in connection with
the performance of the obligations of the Selling Shareholders hereunder,
including all fees and expenses of the Selling Shareholders' accountants
and counsel; and
(ii) All taxes, if any, on the transfer and sale of the Shares.
10. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject, in their discretion, to the accuracy of
the representations and
16
warranties of each of the Company and the Selling Shareholders contained herein
as of the date hereof and as of each Time of Delivery, to the accuracy of the
statements of the Company's officers made pursuant to the provisions hereof, to
the performance by the Company and the Selling Shareholders of their respective
covenants and agreements hereunder, and to the following additional conditions,
except to the extent expressly waived in writing by the Representative:
(a) The Registration Statement and all post-effective amendments
thereto shall have been declared effective by the Commission no later than 5:30
p.m. Eastern Time, on the date of this Agreement, or such later time as shall
have been consented to by the Representative, but in any event not later than
5:30 p.m., Eastern Time, on the third full business day following the date
hereof; if the Company omitted information from the Registration Statement at
the time it became effective in reliance on Rule 430A under the Securities Act,
the Prospectus shall have been filed with the Commission in compliance with Rule
424(b) and Rule 430A under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto shall have been issued; no proceeding for the issuance of such an order
shall have been initiated or shall be pending or, to the knowledge of the
Company, the Selling Shareholders or the Representative, threatened or
contemplated by the Commission; and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been disclosed to the Representative and complied with to
the Representative's satisfaction.
(b) Since the dates as of which information is given in the
Registration Statement:
(i) There shall not have been any material adverse change, or
any development involving a prospective material adverse change, in the
ability of the Company or any Subsidiary to conduct their respective
businesses (whether by reason of any court, legislative, other governmental
action, order, decree, or otherwise), or in the general affairs, condition
(financial and otherwise), business, prospects, properties, management,
financial position or earnings, results of operations, or net worth of the
Company or any Subsidiary, whether or not arising from transactions in the
ordinary course of business; and
(ii) Neither the Company nor any Subsidiary shall have sustained
any loss or interference from any labor dispute, strike, fire, flood,
windstorm, accident, or other calamity (whether or not insured) or from any
court or governmental action, order, or decree; the effect of which on the
Company or any Subsidiary is in the reasonable opinion of the
Representative so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares on the terms and in the manner contemplated in the Registration
Statement and the Prospectus.
17
(c) (i) You shall have received an opinion, dated such Time of
Delivery, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, in
form and substance satisfactory to you and your counsel, to the effect that:
(1) The Company is a corporation existing and in good
standing under the laws of the State of Kansas, with requisite corporate
power and authority to own its properties and conduct its business as
described in the Registration Statement, except for such power and
authority the absence of which would not have a Material Adverse Effect on
the Company, and is registered as bank holding company under the Bank
Holding Company Act of 1956, as amended.
(2) Each Subsidiary of the Company has been duly
incorporated or organized and is validly existing as a corporation or
banking association in good standing under the laws of the jurisdiction of
organization, with full corporate power and authority to own, lease, and
operate its properties and conduct its business as described in the
Registration Statement; the Company and each Subsidiary are qualified to do
business as foreign corporations under the corporation laws of each
jurisdiction in which the Company or such Subsidiary, as the case may be,
owns or leases properties, has an office, or in which business is conducted
and such qualification is required, except where the failure to so qualify
would not have a Material Adverse Effect.
(3) The Company has full corporate power and authority
to execute, deliver, and perform the Underwriting Agreement; the
Underwriting Agreement has been duly authorized, executed and delivered by
the Company, and constitutes a legal, valid, and binding obligation of the
Company and is enforceable against the Company in accordance with its
terms.
(4) The Company's authorized, issued and outstanding
capital stock is as disclosed in the Prospectus as of the date set forth
therein (except for subsequent issuance, if any, pursuant to reservations,
agreements, or employee benefit plans described in the Prospectus or
pursuant to the exercise of convertible securities or options described in
the Prospectus). All of the issued and outstanding Shares have been duly
authorized and validly issued, are fully paid and nonassessable and conform
to the description of the Common Stock contained in the Prospectus. None of
the Shares have been issued in violation of any statutory or any other
preemptive rights of shareholders, and no person or entity (including any
holder of outstanding shares of Common Stock of the Company or capital
stock of its subsidiaries) has any statutory or any other preemptive or
other rights to subscribe for any of the Shares.
(5) Except as disclosed in the Prospectus (and except
for subsequent issuances of options, capital stock, or other rights under
agreements, employee benefit plans, or other arrangements referred to in
the Prospectus), there are, to such counsel's knowledge, no outstanding (A)
securities or obligations of the Company or any of its subsidiaries
convertible into or
18
exchangeable for any capital stock of the Company or any Subsidiary, (B)
warrants, rights or options to subscribe for or purchase from the Company
or any of its subsidiaries any such capital stock or any such convertible
or exchangeable securities or obligations or (C) obligations of the Company
or any of its subsidiaries to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(6) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings known to such counsel: (i) between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person, or (ii) requiring the Company to include such securities in the
securities registered pursuant to the Registration Statement (or any such
right has been effectively waived), or (iii) requiring the registration of
any securities pursuant to any other registration statement filed by the
Company under the Securities Act.
(7) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in such opinion
and, to such counsel's knowledge and information, no stop order suspending
the effectiveness of the Registration Statement has been issued under the
Securities Act and no proceedings therefor have been initiated or
threatened by the Commission.
(8) The Registration Statement and the Prospectus and
any amendment or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements and financial and
statistical data included therein, as to which no opinion need be
rendered), when it or they became effective or were filed with the
Commission, as the case may be, and in each case at such Time of Delivery,
complied as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations under said act, and
such counsel has no reason to believe that: (i) the Registration Statement
(other than the financial statements and financial and statistical data
included therein, as to which no opinion need be rendered), at the time it
became effective, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
contained therein, not misleading, or (ii) the Prospectus (other than the
financial statements and financial and statistical data included therein,
as to which no opinion need be rendered), at the time it was filed with the
Commission or at such Time of Delivery, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
(9) Such counsel knows of no material legal or
governmental proceedings pending to which the Company or any Subsidiary is
a party or of which any property of the Company or any Subsidiary is the
subject which would affect the consummation of the transactions
contemplated in this
19
Agreement, and such counsel knows of no such proceedings which are
threatened or contemplated by governmental authorities or threatened by
others.
(10) Such counsel knows of no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to
be described in the Registration Statement or to be filed as exhibits
thereto other than those described therein or filed or incorporated by
reference as exhibits thereto, and such instruments as are summarized in
the Registration Statement are fairly summarized in all material respects.
(11) No approval, authorization, consent, registration,
qualification or other order of any public board or body is required in
connection with the execution and delivery of this Agreement or the
issuance and sale of the Shares or the consummation by the Company of the
other transactions contemplated by this Agreement, except such as have been
obtained under the Securities Act and the Exchange Act or such as may be
required under the blue sky or securities laws of various states in
connection with the offering and sale of the Shares (as to which such
counsel need express no opinion).
(12) The execution and delivery of this Agreement, the
sale of the Shares, the compliance by the Company with the provisions of
this Agreement and the consummation of the transactions contemplated herein
will not conflict with or constitute a breach of, or default under, the
articles of incorporation or by-laws of the Company or a breach or default
under any contract, indenture, mortgage, loan agreement, note, lease or
other instrument known to such counsel to which either the Company or any
Subsidiary is a party or by which any of them or any of their respective
properties may be bound except for such breaches as would not have a
Material Adverse Effect on the Company and its Subsidiaries considered as
one enterprise, nor will such action result in a violation on the part of
the Company or any Subsidiary of any applicable law or regulation or of any
administrative, regulatory or court decree known to such counsel.
(ii) You shall have received an opinion, dated such Time of
Delivery, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, a Professional Corporation, counsel for the
Selling Shareholders, in form and substance satisfactory to you and your
counsel, to the effect that:
(1) This Agreement has been duly authorized, executed
and delivered by or on behalf of the Selling Shareholders.
(2) The execution and delivery by the Selling
Shareholders of, and the performance by the Selling Shareholders of their
obligations under, this Agreement and the Power of Attorney will not
conflict or violate any existing law, statute, rule or regulation, or in
any material respect, conflict with, or (with or without the giving of
notice or the passage of time or both) result in a material breach or
material violation of any of the terms or provisions of, or constitute a
material default under, any material indenture,
20
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument known to such counsel to which any Selling Shareholder is a
party or, conflict with or violate any judgment, order or decree known to
such counsel, of any governmental body, agency or court having jurisdiction
over any Selling Shareholder, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Selling Shareholders of their
obligations under this Agreement or the Power of Attorney except such as
may be required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Shares.
(3) The Selling Shareholders have valid title to the
Shares and the legal right and power, and all authorization and approval
required by law, to enter into this Agreement and the Power of Attorney and
to sell, transfer and deliver the Shares.
(4) The Powers of Attorney have been duly authorized,
executed and delivered by the Selling Shareholders and are valid and
binding agreements of the Selling Shareholders.
(5) Upon delivery of the certificates for the Shares
properly endorsed to the Underwriters and payment of the purchase price
therefor pursuant to this Agreement, title to such Shares will be passed to
the Underwriters, free and clear of all liens, security interests, pledges,
charges, equities, and other encumbrances, other than as created by or
through the Underwriters.
(iii) In rendering such opinions specified in clauses (i) and
(ii) above, counsel may rely upon an opinion or opinions, each dated as of
such Time of Delivery, of other counsel retained by them or the Company or
the Selling Shareholders as to laws of any jurisdiction other than the
United States, the State of New York, in the case of the opinion specified
in clause (i), the state of Kansas, and, in the case of the opinion
specified in clause (ii), the state of Oklahoma provided that (A) such
reliance is expressly authorized by each opinion so relied upon and a copy
of each such opinion is delivered to the Representative, and (B) counsel
shall state in their opinion that they believe that they and the
Underwriters are justified in relying thereon. Insofar as such opinions
involve factual matters, such counsel may rely, to the extent such counsel
deems proper, upon certificates of officers of the Company, its
Subsidiaries and certificates of the Selling Shareholders or of public
officials. In the case of the opinion specified in clause (i) above, such
counsel may assume that the laws of the State of New York are identical to
the laws of the State of Kansas in all respects material to the opinion
being rendered by such counsel, provided that such assumption is expressly
disclosed in the opinion.
(d) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery, with
respect to the Registration Statement, the Prospectus, and other related matters
as you may reasonably request, and the Company and the Selling Shareholders
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. Such opinion or opinions may
be rendered in reliance upon the opinion of other counsel and/or assume that the
laws of the States of Kansas [and
21
Oklahoma] are identical to the laws of the State of New York in all respects
material to their opinion.
(e) At the time this Agreement is executed and also as of each Time
of Delivery, there shall be delivered to the Representative a letter from KPMG
LLP, the Company's independent accountants, the first letter to be dated the
date of this Agreement, the second letter to be dated as of the First Time of
Delivery, and the third letter to be dated as of the Subsequent Time of
Delivery, if any, which shall be in form and substance reasonably satisfactory
to the Representative and shall contain information as of a date within five
days of the date of such letter. There shall not have been any change set forth
in any letter referred to in this subsection (e) that makes it impracticable or
inadvisable in the judgment of the Representative to proceed with the public
offering or purchase of the Shares as contemplated hereby.
(f) As of each Time of Delivery, a certificate signed by the Chairman
of the Board, the President, a Vice Chairman of the Board or any Executive or
Senior Vice President and the principal financial or accounting officer of the
Company, dated as of each Time of Delivery, to the effect that the signers of
such certificate have carefully examined the Registration Statement and this
Agreement and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of such
Time of Delivery, with the same effect as if made as of such Time of
Delivery, and the Company has complied in all material respects with all
the agreements and satisfied in all material respects all the conditions on
its part to be performed or satisfied at or prior to such Time of Delivery;
(ii) The Commission has not issued an order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus or any
amendment thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and, to the knowledge of the
respective signatories, no proceeding for that purpose has been instituted
or is pending or contemplated under the Securities Act;
(iii) Each of the respective signatories of the certificate has
carefully examined the Registration Statement, the Prospectus, and any
amendments or supplements thereto, and such documents contain all material
statements and information required to be made therein, and neither the
Registration Statement nor any amendment or supplement thereto includes any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and, since the date on which the Registration Statement was
initially filed, no event has occurred that was required to be set forth in
an amended or supplemented prospectus or in an amendment to the
Registration Statement that has not been so set forth; provided, however,
that no representation need be made as to information contained in or
omitted from the Registration Statement or any amendment or supplement in
reliance upon and in conformity with written
22
information furnished to the Company by or on behalf of any Underwriter
through the Representative; and
(iv) Since the date on which the Registration Statement was
initially filed with the Commission, there has not been any material
adverse change or a development involving a prospective material adverse
change in the business, properties, financial condition, or earnings of the
Company and its Subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as disclosed in the
Registration Statement as heretofore amended or (but only if the
Representative expressly consents thereto in writing) as disclosed in an
amendment or supplement thereto filed with the Commission and delivered to
the Representative after the execution of this Agreement; since such date
and except as so disclosed or in the ordinary course of business, neither
the Company nor any Subsidiary has incurred any liability or obligation,
direct or indirect, or entered into any transaction that is material to the
Company or such Subsidiary, as the case may be, not contemplated in the
Prospectus; since such date and except as so disclosed there has not been
any change in the outstanding capital stock of the Company (except for
subsequent issuance, if any, pursuant to reservations, agreements, or
employee benefit plans described in the Prospectus or pursuant to the
exercise of convertible securities or options described in the Prospectus),
or any change that is material to the Company and its Subsidiaries taken as
a whole in the short-term debt or long-term debt of the Company or any
Subsidiary; since such date and except as so disclosed, neither the Company
nor any of its Subsidiaries have incurred any material contingent
obligations, and no material litigation is pending or, to their knowledge,
threatened against the Company or any Subsidiary; and, since such date and
except as so disclosed, neither the Company nor any of its Subsidiaries
have sustained any material loss or interference from any strike, fire,
flood, windstorm, accident or other calamity (whether or not insured) or
from any court or governmental action, order, or decree.
(g) Subsequent to the date hereof, there shall not have occurred any
of the following: (i) any suspension or limitation in trading in securities
generally on the Nasdaq National Market or any setting of minimum prices for
trading on such exchange, or in the Common Stock of the Company by the
Commission or the Nasdaq National Market; (ii) a moratorium on commercial
banking activities in Kansas or New York declared by either federal or state
authorities; or (iii) any outbreak or escalation of hostilities involving the
United States, declaration by the United States of a national emergency or war
or any other national or international calamity or emergency if the effect of
any such event specified in this clause (iii) in your sole judgment makes it
impracticable or inadvisable to proceed with the purchase, sale and delivery of
the Shares being delivered at the Time of Delivery as contemplated by the
Registration Statement, as amended as of the date hereof.
(h) The Common Stock shall continue to be listed on the Nasdaq
National Market.
(i) Prior to each Time of Delivery, the Company and the Selling
Shareholders shall have furnished to the Representative such further
information, certificates and documents as the Representative may reasonably
request in connection
23
with the offering of the Shares.
If any condition specified in this Section shall not have been fulfilled when
and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice from the Representative to the Selling Shareholders and
the Company at any time without liability on the part of any of the
Underwriters, including the Representative, or the Selling Shareholders or the
Company, except for expenses to be paid by the Selling Shareholder or the
Company pursuant to Section 9 hereof or reimbursed by the Company pursuant to
Section 11 and except to the extent provided in Section 12.
11. Reimbursement of Underwriters' Expenses. If the sale of the Shares to
the Underwriters at the First Time of Delivery is not consummated because the
offering is terminated or indefinitely suspended by the Selling Shareholders,
the Company or by the Representative for any reason permitted by this Agreement,
other than the Underwriters' inability to legally act as Underwriter, the
Company will reimburse the Underwriters for the Underwriters' reasonable out-of-
pocket expenses, including fees and disbursements of its counsel, that shall
have been incurred by the Underwriters in connection with the proposed purchase
and sale of the Shares. Any such termination or suspension shall be without
liability of any party to the other except that the provisions of this Section
11, and Sections 9 and 12 shall remain effective and shall apply.
12. Indemnification and Contribution.
(a) (i) The Company agrees to indemnify and hold harmless the
Selling Shareholders and each Underwriter and each person, if any, who controls
any Underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, expenses, liabilities, or actions in
respect thereof ("Claims"), joint or several, to which such Underwriter or each
such controlling person may become subject under the Securities Act, the
Exchange Act, the Securities Act Regulations, Blue Sky Laws or other federal or
state statutory laws or regulations, at common law or otherwise (including
payments made in settlement of any litigation, if such settlement is effected
with the written consent of the Company, which consent shall not be unreasonably
withheld), insofar as such Claims arise out of or are based upon the inaccuracy
or breach of any representation, warranty, or covenant of the Company contained
in this Agreement, any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or in any
application filed under any Blue Sky Law or other document executed by the
Company for that purpose or based upon written information furnished by the
Company and filed in any state or other jurisdiction to qualify or register any
or all of the Shares under the securities laws thereof (any such document,
application, or information being hereinafter called a "Blue Sky Application"),
or arise out of or are based upon the omission or alleged omission to state in
any of the foregoing a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Company agrees to reimburse
each Underwriter and each such controlling person promptly for any legal fees or
other expenses incurred by such Underwriter or any such controlling person in
connection with investigating or defending any such Claim or appearing as a
third-party witness in
24
connection with any such Claim; provided, however, that the Company will not be
liable in any such case to the extent that:
(x) Any such Claim arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto or in any Blue Sky
Application in reliance upon and in conformity with the written
information furnished by or on behalf of the Underwriters to the
Company expressly for use therein pursuant to Section 4 of this
Agreement;
(y) Any such Claim arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto or in any Blue Sky
Application in reliance upon and in conformity with the written
information furnished by or on behalf of the Selling Shareholder to
the Company expressly for use therein; or
(z) Such statement or omission was contained or made in any
Preliminary Prospectus and corrected in the Prospectus and (1) any
such Claim suffered or incurred by any Underwriter (or any person who
controls such Underwriter) resulted from an action, claim, or suit by
any person who purchased Shares that are the subject thereof from such
Underwriter in the offering of the Shares, and (2) such Underwriter
failed to deliver a copy of the Prospectus (as then amended if the
Company shall have amended the Prospectus) to such person at or prior
to the confirmation of the sale of such Shares in any case where such
delivery is required by the Securities Act, unless such failure was
due to failure by the Company to provide copies of the Prospectus (as
so amended) to the Underwriter as required by this Agreement.
(ii) The provisions of clause (i) of this Section 12(a)
applicable to the Company shall be equally applicable to the Selling
Shareholders, provided that the Selling Shareholders shall be liable to the
Company, the Underwriters and any of their controlling persons only with
respect to statements made by or relating to the Selling Shareholders.
(b) Each Underwriter severally, but not jointly, agrees to indemnify
and hold harmless the Company and the Selling Shareholders, each of the
Company's directors, each of the Company's officers who sign the Registration
Statement, and each person who controls the Company or any Selling Shareholder
within the meaning of the Securities Act, against any Claim to which the Company
and the Selling Shareholders, or any such director, officer, or controlling
person may become subject under the Securities Act, the Exchange Act, the
Securities Act Regulations, Blue Sky Laws, or other federal
25
or state statutory laws or regulations, at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Underwriter and the Representative, which consent shall not be
unreasonably withheld), insofar as such Claim arises out of or is based upon any
untrue or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or in any Blue Sky Application, or arises out
of or is based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or any amendment or supplement thereto, or in any Blue Sky Application, in
reliance upon and in conformity with the written information furnished by or on
behalf of such Underwriter to the Company pursuant to Section 4 of this
Agreement. Each Underwriter will severally reimburse any legal fees or other
expenses reasonably incurred by the Company and the Selling Shareholders, or any
such director, officer, or controlling person in connection with investigating
or defending any such Claim, and from any and all Claims resulting from failure
of such Underwriter to deliver a copy of the Prospectus, if the person asserting
such Claim purchased Shares from such Underwriter and a copy of the Prospectus
(as then amended if the Company shall have amended the Prospectus) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the Prospectus (as so amended) would have
cured the defect giving rise to such Claim (unless such failure was due to a
failure by the Company to provide sufficient copies of the Prospectuses (as so
amended) to each Underwriter).
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) of this Section 12 of notice of the commencement of any action in
respect of a Claim, such indemnified party will, if a Claim in respect thereof
is to be made against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof. In case any such
action is brought against any indemnified party, and such indemnified party
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in and, to the extent that it may wish,
jointly with all other indemnifying parties, similarly notified, assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to the
indemnified party and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties.
(d) Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election to assume the defense of
such action and upon approval by the indemnified party of counsel selected by
the indemnifying party, the indemnifying party will not be liable to such
indemnified party
26
under subsection (a) or (b) of this Section 12 for any legal fees or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, unless:
(i) the indemnified party shall have employed separate counsel
in connection with the assumption of legal defenses in accordance with the
proviso to the last sentence of subsection (c) of this Section 12 (it being
understood, however, that the indemnified party shall not be liable for the
legal fees and expenses of more than one separate counsel (plus local
counsel), approved by the Representative if one or more of the Underwriters
or their controlling persons are the indemnified parties); or
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after the indemnified party's
notice to the indemnifying party of commencement of the action;
(e) If the indemnification provided for in this Section 12 is
unavailable to an indemnified party or insufficient to hold harmless an
indemnified party under subsection (a) or (b) of this Section 12 in respect of
any Claim referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall, subject, to the limitations
hereinafter set forth, contribute to the amount paid or payable by such
indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Selling Shareholders, the Company and the
Underwriters from the offering of the Shares; or
(ii) if the allocation provided by clause (e)(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 (e)(i) above,
but also the relative fault of the Selling Shareholders, the Company and
the Underwriters in connection with the statements or omissions that
resulted in such Claim, as well as any other relevant equitable
considerations.
The respective relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand shall be
deemed to be in such proportion that the Underwriters are responsible for that
portion of a Claim represented by the percentage that the amount of the
underwriting commission bears to the public offering price of the Shares, and
the Company and the Selling Shareholders (including the Company's directors,
officers, and controlling persons) are responsible for the remaining portion of
such Claim.
The relative fault of the Company, the Selling Shareholders 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
alleged omission to state a material fact relates to information supplied by the
Company, the Selling Shareholders on the one
27
hand or the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
untrue statement or omission. The amount paid or payable by a party as a result
of the Claims referred to above shall be deemed to include, subject to the
limitations set forth in subsections (c) and (d) of this Section 12, any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
(f) The Company, the Selling Shareholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
12 were determined by pro rata or per capita allocation or by any other method
or allocation that does not take into account the equitable considerations
referred to in subsection (e) of this Section 12. Notwithstanding the other
provisions of this Section 12, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligation to contribute
pursuant to this Section 12 are several in proportion to their respective
underwriting commitments and not joint.
(g) The obligations of the Company, the Selling Shareholders and the
Underwriters under this Section 12 shall be in addition to any liability that
the Company, the Selling Shareholders or the Underwriters may otherwise have.
13. Default of Underwriters.
(a) If any Underwriter defaults in its obligation to purchase Shares
at a Time of Delivery, the Representative may in its discretion arrange for the
Representative or another party or other parties to purchase such Shares on the
terms contained herein within thirty-six (36) hours after such default by any
Underwriter. In the event that, within the respective prescribed period, the
Representative notifies the Selling Shareholders that they have so arranged for
the purchase of such Shares, the Representative shall have the right to postpone
a Time of Delivery for a period of not more than seven (7) days in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus that in the Representative's opinion may thereby be made
necessary. The cost of preparing, printing and filing any such amendments shall
be paid for by the Underwriters. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by the Representative as
provided in subsection (a) above, if any, the aggregate number of such Shares
which remains unpurchased does not exceed one-eleventh (1/11) of the aggregate
number of Shares to
28
be purchased at such Time of Delivery, then the Selling Shareholders shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
14. Termination.
(a) This Agreement may be terminated in the sole discretion of the
Representative by notice to the Company given prior to the First Time of
Delivery or any Subsequent Time of Delivery, respectively, in the event that (i)
any condition to the obligations of the Underwriters set forth in Section 10
hereof has not been satisfied, or (ii) the Selling Shareholders shall have
failed, refused or been unable to deliver the Shares or the Company or the
Selling Shareholders shall have failed, refused or been unable to perform all
obligations and satisfy all conditions on their respective parts to be performed
or satisfied hereunder at or prior to such Time of Delivery, in either case
other than by reason of a default by any of the Underwriters. If this Agreement
is terminated pursuant to this Section 14(a), the Company and the Selling
Shareholders will reimburse the Underwriters severally upon demand for all out-
of-pocket expenses (including counsel fees and disbursements) that shall have
been incurred by it in connection with the proposed purchase and sale of the
Shares. Any termination pursuant to this Section 14(a) shall be without
liability on the part of any Underwriter to the Selling Shareholders or the
Company or on the part of the Selling Shareholders or the Company to any
Underwriter (except for expenses to be paid by the Selling Shareholders or the
Company pursuant to Section 9 hereof or reimbursed by the Selling Shareholders
or the Company pursuant to this Section 14(a) and except as to indemnification
and contribution to the extent provided in Section 12 hereof).
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by the Representative as
provided in Section 13(a), the aggregate number of such Shares which remains
unpurchased exceeds one-eleventh (1/11) of the aggregate number of Shares to be
purchased at such Time of Delivery, then this Agreement (or, with respect to a
Subsequent Time of Delivery, the obligations of the Underwriters to purchase and
of the Selling Shareholders to sell the Optional Shares) shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Selling Shareholders, except for the expenses to be borne by the Company and
the Selling Shareholders and the Underwriters as provided in Section 9 hereof
and the indemnity and contribution agreements in Section 12 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
15. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Company, its officers, the Selling
Shareholders and the Underwriters, as set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of
29
the Underwriters or any controlling person referred to in Section 12(b) or the
Company, or any officer, trustee or director or controlling person of the
Company referred to in Section 12(b), and shall survive delivery of and payment
for the Shares. The respective agreements, covenants, indemnities and other
statements set forth in Sections 9 and 12 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
16. Notices. All communications hereunder shall be in writing and, if
sent to the Representative, shall be mailed, delivered or telegraphed and
confirmed in writing to Advest, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇▇ &
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Esq.); if to the Company, shall be sufficient in all respects if mailed,
delivered or telegraphed and confirmed in writing to Gold Banc Corporation,
Inc., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, , ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chief Financial Officer (with a copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Two
Pershing Square, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.); and if to the Selling Shareholders, shall be
sufficient in all respects if mailed, delivered or telegraphed and confirmed in
writing to ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (with a copy to
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., 1800 Mid-America Tower, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.).
17. Binding Effect. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and the Selling
Shareholders and, to the extent provided in Sections 12 and 15 hereof, the
officers, trustees, directors and employees and controlling persons referred to
therein and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Shares from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to any
provisions regarding conflicts of laws.
19. Counterparts. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
20. Partial Unenforceability. If any section, subsection, clause, or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, subsection, clause, or provision hereof.
21. Entire Agreement. This Agreement embodies the entire agreement among
the parties hereto with respect to the transactions contemplated herein, and
there have
30
been and are no agreements among the parties with respect to such transactions
other than as set forth or provided for herein.
22. Effective Date. This Agreement shall become effective immediately on
the date hereof.
31
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us one of the counterparts hereof, and upon the
acceptance hereof by the Representative, on behalf of each of the Underwriters,
this letter will constitute a binding agreement among the Underwriters, the
Selling Shareholders and the Company. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in the Agreement among Underwriters, a copy of which shall be
submitted to the Selling Shareholders or the Company for examination, upon
request, but without warranty on your part as to the authority of the signers
thereof.
Very truly yours,
GOLD BANC CORPORATION, INC.
By:
-----------------------------------
Name:
Title:
SELLING SHAREHOLDERS
By:
-----------------------------------
Attorney in Fact for the Selling
Shareholders noted heretofore
The foregoing Agreement is hereby
confirmed and accepted as of the date
first written above at New York, New York
ADVEST, INC.
By:
----------------------------
Name:
Title:
On behalf of each of the Underwriters
SCHEDULE I
Number of Optional
Total Number Shares to be Purchased
of Firm Shares if Maximum
Underwriter to be Purchased Option Exercised
----------- --------------- ----------------------
Advest, Inc.
----------- -----------
----------- -----------
Total
----------- -----------
SCHEDULE II
Name of Selling Number of Firm Shares Number of Option
Shareholder Shares to be Sold Shares to be Sold
--------------- --------------------- -----------------
▇▇▇▇ ▇. ▇▇▇▇▇ Revocable 241,508 36,226
Family Trust #1
▇▇▇▇ ▇. ▇▇▇▇▇ Revocable 113,015 16,951
Family Trust #2
▇▇▇▇▇▇▇ Enterprises LLC 396,522 59,478
