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1,250,000 Preferred Securities
BVBC CAPITAL TRUST I
____% Cumulative Trust Preferred Securities
(Liquidation Amount of $8.00 per Preferred Security)
UNDERWRITING AGREEMENT
________, 2000
DRAFT DATED 7/13/00
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
As Representative of the Underwriters
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▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Blue Valley Ban Corp., a Kansas corporation (the "Company"), and its
financing subsidiary, BVBC Capital Trust I, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the "Offerors"), propose
that the Trust issue and sell to the several underwriters listed on Schedule I
hereto (the "Underwriters") pursuant to the terms of this Agreement, 1,250,000
of the Trust's ____% Cumulative Trust Preferred Securities, with a liquidation
amount of $8.00 per preferred security (the "Preferred Securities"), to be
issued under the Trust Agreement (as hereinafter defined), the terms of which
are more fully described in the Prospectus (as hereinafter defined). The
aforementioned 1,250,000 Preferred Securities to be sold to the Underwriters are
herein called the "Firm Preferred Securities." Solely for the purpose of
covering over-allotments in the sale of the Firm Preferred Securities, the
Offerors further propose that the Trust issue and sell to the Underwriters, at
their option (the "Option"), up to an additional 187,500 Preferred Securities
(the "Option Preferred Securities") upon exercise of the over-allotment option
granted in Section 1 hereof. The Firm Preferred Securities and any Option
Preferred Securities are herein collectively referred to as the "Designated
Preferred Securities." You are acting as representative of the Underwriters and
in such capacity are hereinafter referred to as the "representative."
The Offerors hereby confirm as follows their agreement with
each of the Underwriters in connection with the proposed purchase of the
Designated Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES;
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
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(a) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Offerors hereby agree that the Trust shall issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Trust, at a purchase price of $8.00 per Preferred
Security (the "Purchase Price"), the respective number of Firm Preferred
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
Because the proceeds from the sale of the Firm Preferred Securities will be used
to purchase from the Company its Debentures (as hereinafter defined and as
described in the Prospectus), the Company shall pay to each Underwriter a
commission of $______ per Firm Preferred Security purchased (the "Firm Preferred
Securities Commission"). In accordance with Section 9 hereof, the Representative
may by notice to the Company amend Schedule I to add, eliminate or substitute
names set forth therein (other than to eliminate the name of the Representative)
and to amend the number of Preferred Securities to be purchased by any firm or
corporation listed thereon, provided that the total number of Firm Preferred
Securities listed on Schedule I shall equal 1,250,000.
In addition, on the basis of the representations, warranties
and agreements herein contained and subject to the terms and conditions herein
set forth, the Trust hereby grants to the Underwriters, severally and not
jointly, the Option to purchase all or any portion of the 187,500 Option
Preferred Securities, and upon the exercise of the Option in accordance with
this Section 1, the Offerors hereby agree that the Trust shall issue and sell to
the Underwriters, severally and not jointly, all or any portion of the Option
Preferred Securities at the same Purchase Price per share paid for the Firm
Preferred Securities. If any Option Preferred Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Trust
that proportion (subject to adjustment as the Representative may determine to
avoid fractional shares) of the number of Option Preferred Securities to be
purchased that the number of Firm Preferred Securities set forth opposite the
name of such Underwriter in Schedule I hereto (or such number increased as set
forth in section 9 hereto) bears to 1,250,000. Because the proceeds from the
sale of the Option Preferred Securities will be used to purchase from the
Company its Debentures, the Company shall pay to the Underwriters a commission
of $______ per Option Preferred Security for each Option Preferred Security
purchased (the "Option Preferred Securities Commission"). The Option shall
expire at 5:00 p.m. St. Louis time 30 days after the Effective Date (as
hereinafter defined) and may be exercised only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Firm Preferred Securities. The Option may be exercised in
whole or in part at any time (but not more than once) by the Representative
giving notice (confirmed in writing) to the Trust setting forth the number of
Option Preferred Securities as to which the Underwriters are exercising the
Option and the time and date for payment and delivery of the Global Securities
(as hereafter defined) for such Option Preferred Securities. Such time and date
of payment and delivery for the Option Preferred Securities (the "Option Closing
Date") shall be determined by the Representative, but shall not be earlier than
two nor later than four business days after the exercise of the Option, nor in
any event prior to the Closing Date (as hereinafter defined). The Option Closing
Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred
Securities Commission and delivery of the Global Securities for the Firm
Preferred Securities shall be made at the offices of the Representative, ▇▇▇
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agreed to by the Representative and the Offerors, at 10:00 a.m.,
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St. Louis time, on ________, 2000, or at such other time not more than five full
business days thereafter as the Offerors and the Representative shall determine
(the "Closing Date"). The Trust shall deliver or cause to be delivered to you
for the account of the Underwriters against payment to or upon the order of the
Trust of the purchase price in federal or other immediately available funds, the
Firm Preferred Securities in the form of one or more permanent global securities
in definitive form (the "Global Securities") deposited with the Property Trustee
as custodian for the Depository Trust Company ("DTC") and registered in the name
of Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form. If the Underwriters exercise the Option to
purchase any or all of the Option Preferred Securities, payment of the Purchase
Price and Option Preferred Securities Commission and delivery of the Global
Securities for such Option Preferred Securities shall be made on the Option
Closing Date at the offices of the Representative, or at such other place as the
Offerors and the Representative shall determine. Upon delivery, the Option
Preferred Securities shall be in the form of one or more Global Securities
registered in the name of Cede & Co., as nominee of DTC. Payments for the
Designated Preferred Securities shall be made to an account designated by the
Trust by wire transfer, in same day funds, in the amount of the aggregate
Purchase Price therefor, against delivery by or on behalf of the Trust to the
Representative for the respective accounts of the Underwriters of certificates
for the Designated Preferred Securities to be purchased by the Underwriters.
The agreement contained herein with respect to the timing of
the Closing Date and Option Closing Date is intended to, and does, constitute an
express agreement, as described in Rule 15c6-1(c) and (d) promulgated under the
1934 Act (as defined herein), for a settlement date other than three business
days after the date of the contract.
Time shall be of the essence, and delivery of the Global
Securities for the Designated Preferred Securities at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of each Underwriter hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein (collectively, the
"Trustees"), and the Company, in substantially the form heretofore delivered to
the Representative (the "Trust Agreement"). In connection with the issuance of
the Designated Preferred Securities, the Company proposes (i) to issue its
Subordinated Debentures (the "Debentures") pursuant to an Indenture, in
substantially the form heretofore delivered by the Offerors to the
Representative, between the Company and Wilmington Trust Company, as Trustee
(the "Indenture"), and (ii) to guarantee certain payments on the Designated
Preferred Securities pursuant to a Preferred Securities Guarantee Agreement, in
substantially the form heretofore delivered by the Offerors to the
Representative, between the Company and Wilmington Trust Company, as Guarantee
Trustee (the "Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant
to, and agree with, each of the Underwriters that:
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(i) The Offerors have prepared and filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on Form S-1 (File Numbers 333-34328 and 333-34328-01) for the
registration of, among other securities, the Designated Preferred
Securities, the Guarantee and up to $11,855,672 aggregate principal
amount of Debentures under the Securities Act of 1933, as amended (the
"1933 Act"), including the related prospectus subject to completion,
and one or more amendments to such registration statement may have been
so filed, in each case in conformity in all material respects with the
requirements of the 1933 Act, the rules and regulations promulgated
thereunder (the "1933 Act Regulations") and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and
regulations promulgated thereunder. Copies of such registration
statement, including any amendments thereto, each Preliminary
Prospectus (as defined herein) contained therein and the exhibits,
financial statements and schedules to such registration statement, as
finally amended and revised, have heretofore been delivered by the
Company to the Representative. After the execution of this Agreement,
the Company shall file with the Commission (A) if such registration
statement, as it may have been amended, has been declared by the
Commission to be effective under the 1933 Act, a prospectus in the form
most recently included in an amendment to such registration statement
(or, if no such amendment shall have been filed, in such registration
statement), with such changes or insertions as are required by Rule
430A of the 1933 Act Regulations ("Rule 430A") or permitted by Rule
424(b) of the 1933 Act Regulations ("Rule 424(b)") and as have been
provided to and not objected to by the Representative prior to (or as
are agreed to by the Representative subsequent to) the execution of
this Agreement, or (B) if such registration statement, as it may have
been amended, has not been declared by the Commission to be effective
under the 1933 Act, an amendment to such registration statement,
including a form of final prospectus, necessary to permit such
registration statement to become effective, a copy of which amendment
has been furnished to and not objected to by the Representative prior
to (or is agreed to by the Representative subsequent to) the execution
of this Agreement. As used in this Agreement, the term "Registration
Statement" means such registration statement, as amended at the time
when it was or is declared effective under the 1933 Act, including (1)
all financial statements and schedules and exhibits thereto, and (2)
any information omitted therefrom pursuant to Rule 430A and included in
the Prospectus; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with such registration statement or any
amendment thereto (including the prospectus subject to completion, if
any, included in the Registration Statement and each prospectus filed
pursuant to Rule 424(a) under the 1933 Act); and the term "Prospectus"
means the prospectus first filed with the Commission pursuant to Rule
424(b)(1) or (4) or, if no prospectus is required to be filed pursuant
to Rule 424(b)(1) or (4), the prospectus included in the Registration
Statement, in each case including the financial statements and
schedules. The date on which the Registration Statement becomes
effective is hereinafter referred to as the "Effective Date." A
registration statement with respect to the Preferred Securities and the
Guarantee has been prepared by the Offerors pursuant to and in
conformity in all material respects with the Securities and Exchange
Act of 1934, as amended (the "1934 Act") and the rules and regulations
promulgated thereunder (the "1934 Regulations"), and has been filed
with the Commission under the 1934 Act, and such registration statement
will become effective under the 1934 Act when the Registration
Statement is declared effective. No document has been or shall be
prepared or distributed in reliance on Rule 434 under the 1933 Act.
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(ii) No order preventing or suspending the use of the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) has been issued by the Commission, nor has the
Commission, to the knowledge of the Offerors, threatened to issue such
an order or instituted proceedings for that purpose. Each Preliminary
Prospectus, at the time of filing thereof, (A) conformed and complied
in all material respects with the requirements of the 1933 Act, the
1933 Act Regulations and the Trust Indenture Act (and the rules and
regulations thereunder), and (B) did not include or contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
does not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Offerors by any
of the Underwriters expressly for inclusion in the
Preliminary Prospectus or the Prospectus (the "Underwriters'
Information"). The Underwriters' Information includes only the
concession and reallowance figures appearing in the third paragraph
under the caption "Underwriting" in the Prospectus and the information
contained in the seventh paragraph under the caption "Underwriting" in
the Prospectus.
(iii) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date and, if
applicable, the Option Closing Date, the Registration Statement and any
post-effective amendment thereto (A) conformed and complied and will
conform and comply in all material respects with the requirements of
the 1933 Act, the 1933 Act Regulations, and the Trust Indenture Act
(and the rules and regulations thereunder), and (B) did not and will
not include or contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that
this representation and warranty does not apply to the Underwriters'
Information. At the Effective Date and at all times when the Prospectus
is required to be delivered in connection with offers and sales of
Designated Preferred Securities, including, without limitation, the
Closing Date and, if applicable, the Option Closing Date, the
Prospectus, as amended or supplemented, (A) conformed and complied and
will conform and comply in all material respects with the requirements
of the 1933 Act, the 1933 Act Regulations and the Trust Indenture Act
(and the rules and regulations thereunder), and (B) did not include or
contain and will not include or contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty does not apply to the
Underwriters' Information.
(iv) (A) The Company is duly organized, validly
existing and in good standing under the laws of the State of Kansas,
with full corporate and other power and authority to own, lease and
operate its properties and conduct its business as described in and
contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted and is duly registered as
bank holding company under the Bank Holding Company Act of 1956, as
amended (the "BHC Act").
(B) The Trust has been duly created and is
validly existing as a statutory business trust in good standing under
the Delaware Business Trust Act with the power and authority (trust and
other) to own its property and conduct its business as
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described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), to issue and sell its common securities (the "Common
Securities") to the Company pursuant to the Trust Agreement, to issue
and sell the Designated Preferred Securities, to enter into and perform
its obligations under this Agreement and to consummate the transactions
herein contemplated; the Trust has no subsidiaries and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of
its property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Trust; the Trust has conducted and will
conduct no business other than the transactions contemplated by this
Agreement and described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); the Trust is not a party to or bound by any
agreement or instrument other than this Agreement and the Trust
Agreement among the Administrative Trustees and Wilmington Trust
Company dated March 30, 2000 (the "Original Trust Agreement"); at the
Closing Date or any Option Closing Date, the Trust will not be a party
to or be bound by any agreement or instrument other than the Trust
Agreement and the agreements and instruments contemplated by the Trust
Agreement and described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); the Trust is not a
party to or subject to any action, suit or proceeding of any nature;
the Trust is not, and at the Closing Date or any Option Closing Date
shall not be classified as an association taxable as a corporation for
United States federal income tax purposes; and the Trust is, and as of
the Closing Date or any Option Closing Date shall be, treated as a
consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
(v) The Company has the direct and indirect
subsidiaries identified on Exhibit A hereto (together, the
"Subsidiaries" and individually a "Subsidiary"). The Company does not
own or control, directly or indirectly, more than 5% of any class of
equity security of any corporation, association or other entity other
than the Subsidiaries. Each Subsidiary is a bank, corporation or
business trust duly organized, validly existing and in good standing
under the laws of its respective jurisdiction of incorporation or
organization. Each such Subsidiary has full corporate and other power
and authority to own, lease and operate its properties and to conduct
its business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and as currently
being conducted. The deposit accounts of the Bank of Blue Valley are
insured by the Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation up to the maximum amount provided by law; and no
proceedings for the modification, termination or revocation of any such
insurance are pending or, to the knowledge of the Offerors, threatened.
(vi) The Company and each of the Subsidiaries is duly
qualified to transact business as a foreign corporation, bank or trust,
as the case may be, and is in good standing in each other jurisdiction
in which it owns or leases property or conducts its business so as to
require such qualification except where the failure to so qualify would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, stockholders' equity or
results of operations of the Offerors and the Subsidiaries,
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as the case may be, on a consolidated basis. All of the issued and
outstanding shares of capital stock of the Subsidiaries (A) have been
duly authorized and are validly issued, (B) are fully paid and
nonassessable except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o, and (C) except
as disclosed in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus), are directly owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, restriction
upon voting or transfer, preemptive rights, claim or equity. Except as
disclosed in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding rights, warrants or options to
acquire or instruments convertible into or exchangeable for any capital
stock or equity securities of the Company or the Subsidiaries.
(vii) The capital stock of the Company and the equity
securities of the Trust conform to the description thereof contained in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus). The
outstanding shares of capital stock and equity securities of each
Offeror have been duly authorized and validly issued and are fully paid
and nonassessable, and no such shares were issued in violation of the
preemptive or similar rights of any security holder of an Offeror; no
person has any preemptive or similar right to purchase any shares of
capital stock or equity securities of the Trust. Except as disclosed in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
outstanding rights, options or warrants to acquire any securities of
the Offerors, and there are no outstanding securities convertible into
or exchangeable for any such securities and no restrictions upon the
voting or transfer of any capital stock of the Company or equity
securities of the Trust pursuant to the Company's articles of
incorporation or bylaws, the Trust Agreement or any agreement or other
instrument to which an Offeror is a party or by which an Offeror is
bound.
(viii) (A) The Trust has all requisite power and
authority to issue, sell and deliver the Designated Preferred
Securities in accordance with and upon the terms and conditions set
forth in this Agreement, the Trust Agreement, the Registration
Statement and the Prospectus. All corporate and trust action required
to be taken by the Offerors for the authorization, issuance, sale and
delivery of the Designated Preferred Securities in accordance with such
terms and conditions has been validly and sufficiently taken. The
Designated Preferred Securities, when delivered in accordance with this
Agreement, shall be duly and validly issued and outstanding, shall be
fully paid and nonassessable undivided beneficial interests in the
assets of the Trust, shall be entitled to the benefits of the Trust
Agreement, shall not be issued in violation of or subject to any
preemptive or similar rights, and shall conform to the description
thereof in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
and the Trust Agreement. None of the Designated Preferred Securities,
immediately prior to delivery, shall be subject to any security
interest, lien, mortgage, pledge, encumbrance, restriction upon voting
or transfer, preemptive rights, claim, equity or other defect.
(B) The Debentures have been duly and
validly authorized, and, when duly and validly executed, authenticated
and issued as provided in the Indenture and delivered to the Trust
pursuant to the Trust Agreement, shall constitute valid and legally
binding obligations of the Company entitled to the benefits of the
Indenture and shall
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conform to the description thereof contained in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to the
Guarantee Trustee for the benefit of the Trust, shall constitute a
valid and legally binding obligation of the Company and shall conform
to the description thereof contained in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(D) The Agreement as to Expenses and
Liabilities between the Company and the Trust (the "Expense Agreement")
has been duly and validly authorized, and, when duly and validly
executed and delivered by the Company, shall constitute a valid and
legally binding obligation of the Company and shall conform to the
description thereof contained in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(ix) The Company and the Subsidiaries have complied
in all material respects with all federal, state and local statutes,
regulations, ordinances and rules applicable to the ownership and
operation of their properties and the conduct of their businesses as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted. Neither the
Company nor any non-banking Subsidiary of the Company engages directly
or indirectly in any activity prohibited by the Board of Governors of
the Federal Reserve System or the BHC Act or the regulations
promulgated thereunder.
(x) The Company and the Subsidiaries have all
material permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate
federal, state, local or other public authorities ("Permits") as are
necessary to own and lease their properties and conduct their
businesses in the manner described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and as currently
being conducted. All such Permits are in full force and effect and the
Company and the Subsidiaries are in all material respects complying
therewith, and no event has occurred that allows, or after notice or
lapse of time would allow, revocation or termination thereof or will
result in any other material impairment of the rights of the holder of
any such Permit, subject in each case to such qualification as may be
adequately disclosed in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus). Such Permits contain no restrictions that would materially
impair the ability of the Company or the Subsidiaries to conduct their
businesses in the manner consistent with their past practices. Neither
the Company nor any of the Subsidiaries has received notice or
otherwise has knowledge of any proceeding or action relating to the
revocation or modification of any such Permit.
(xi) Neither the Company nor any of the Subsidiaries
is in breach or violation of its corporate articles of incorporation or
charter, by-laws or other governing documents (including without
limitation, the Original Trust Agreement) in any material respect.
Neither the Company nor any of the Subsidiaries is, and to the
knowledge of the Offerors no other party is, in violation, breach or
default (with or without notice or lapse of time or both) in the
performance or observance of any term, covenant, agreement,
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obligation, representation, warranty or condition contained in (A) any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license, Permit or any other agreement or
instrument to which the Company is a party or by which it or any of its
properties may be bound, which breach, violation or default could have
a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company or the Subsidiaries on a consolidated basis (provided that the
foregoing shall not apply to defaults by any borrower of the Bank of
Blue Valley) and, to the knowledge of the Company, no other party has
asserted that the Company or any of the Subsidiaries is in such
violation, breach or default, except to the extent disclosed in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus)), and (B) except
as disclosed in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus), any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the
Company or the Subsidiaries or any of their respective properties the
breach, violation or default of which could have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company or the
Subsidiaries on a consolidated basis.
(xii) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the other documents and agreements referred
to therein do not and will not conflict with, result in the creation or
imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the Company or the
Subsidiaries or the Designated Preferred Securities pursuant to,
constitute a breach or violation of, or constitute a default under,
with or without notice or lapse of time or both, any of the terms,
provisions or conditions of the organizational documents of the Company
or the Subsidiaries, the Trust Agreement, the Guarantee, the Indenture,
the Expense Agreement, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise, license,
Permit or any other agreement or instrument to which the Company or any
of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or any order, decree, judgment, rule
or regulation of any court, arbitrator, government, or governmental
agency or instrumentality, domestic or foreign, having jurisdiction
over the Company or the Subsidiaries or of their respective properties
which conflict, creation, imposition, breach, violation or default
would have, either singly or in the aggregate, a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operation of the Company and the
Subsidiaries on a consolidated basis. No authorization, approval,
consent or order of or filing, registration or qualification with, any
person (including, without limitation, any court, governmental body or
authority) is required in connection with the transactions contemplated
by this Agreement, the Trust Agreement, the Indenture, the Guarantee,
the Expense Agreement, the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), except for the registration of the Designated Preferred
Securities under the 1933 Act and the Trust Indenture Act and the
qualification for listing of the Designated Preferred Securities by the
American Stock Exchange LLC, and such as may be required under state
securities laws or Interpretations or Rules of the National Association
of Securities Dealers, Inc. ("NASD") in connection with
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the purchase and distribution of the Designated Preferred Securities by
the Underwriters.
(xiii) The Offerors have all requisite corporate
power and authority to enter into this Agreement and this Agreement has
been duly and validly authorized, executed and delivered by the
Offerors and constitutes the legal, valid and binding agreement of the
Offerors, enforceable against the Offerors in accordance with its
terms, except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally and except as any indemnification
or contribution provisions thereof may be limited under applicable
securities laws. Each of the Indenture, the Trust Agreement, the
Guarantee and the Expense Agreement has been duly authorized by the
Company, and, when executed and delivered by the Company on the Closing
Date, each of said agreements shall constitute a valid and legally
binding obligation of the Company and shall be enforceable against the
Company in accordance with its terms, except as the enforcement thereof
may be limited by general principles of equity and by bankruptcy or
other laws relating to or affecting creditors' rights generally and
except as any indemnification or contribution provisions thereof may be
limited under applicable securities laws. Each of the Indenture, the
Trust Agreement and the Guarantee has been duly qualified under the
Trust Indenture Act and conforms to the description thereof contained
in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(xiv) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to
all personal property owned by them and material to their business, in
each case free and clear of all security interests, liens, mortgages,
pledges, encumbrances, restrictions, claims, equities and other defects
except such as are referred to in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) or such as do not materially affect the value
of such property in the aggregate or do not materially interfere with
the use made or proposed to be made of such property; and all of the
leases under which the Company or the Subsidiaries hold real or
personal property are valid, existing and enforceable leases and in
full force and effect with such exceptions as are not material and do
not materially interfere with the use made or proposed to be made of
such real or personal property, and neither the Company nor any of the
Subsidiaries is in default in any material respect of any of the terms
or provisions of any material leases.
(xv) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, who have certified
certain of the consolidated financial statements of the Company and the
Subsidiaries, including the notes thereto, included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), are independent
public accountants with respect to the Company and the Subsidiaries as
required by the 1933 Act and the 1933 Act Regulations.
(xvi) The consolidated financial statements,
including the notes thereto, included in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) with respect to the Company and the
Subsidiaries, comply in all material respects with the 1933 Act and the
1933 Act Regulations and present fairly the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of operations, cash flows
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and changes in shareholders' equity of the Company and the Subsidiaries
for the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis.
The selected and summary consolidated financial data concerning the
Company and the Subsidiaries included in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) comply in all material respects with the
1933 Act and the 1933 Act Regulations, present fairly the information
set forth therein, and have been compiled on a basis consistent with
that of the consolidated financial statements of the Company and the
Subsidiaries in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus). The other financial, statistical and numerical information
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
complies in all material respects with the 1933 Act and the 1933 Act
Regulations, presents fairly the information shown therein, and, to the
extent applicable, has been compiled on a basis consistent with the
consolidated financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xvii) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), except as otherwise stated therein:
(A) neither the Offerors nor
any of the Subsidiaries has sustained any loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action which is
material to the condition (financial or otherwise), earnings,
business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis;
(B) there has not been any
material adverse change in, or any development which to the
knowledge of the Offerors is reasonably likely to have a
material adverse effect on, the condition (financial or
otherwise), earnings, business, prospects or results of
operations of the Company and the Subsidiaries on a
consolidated basis, whether or not arising in the ordinary
course of business;
(C) neither the Company nor any
of the Subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into any
material transactions, other than in the ordinary course of
business, which is material to the condition (financial or
otherwise), earnings, business, prospects or results of
operation of the Company or Subsidiaries on a consolidated
basis;
(D) neither of the Offerors has
declared or paid any dividend, and neither the Company nor any
of the Subsidiaries has become delinquent in the payment of
principal or interest on any outstanding borrowings; and
(E) there has not been any
change in the capital stock, equity securities, long-term
debt, obligations under capital leases or, other than in the
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ordinary course of business, short-term borrowings of the
Company or the Subsidiaries.
(xviii) Except as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), no charge,
investigation, action, suit or proceeding is pending or, to the
knowledge of the Offerors, threatened, against the Company or the
Subsidiaries or any of their respective properties before or by any
court or any regulatory, administrative or governmental official,
commission, board, agency or other authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or finding could
have a material adverse effect on the consummation of this Agreement or
the transactions contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis
or which is required to be disclosed in the Registration Statement or
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and is not so disclosed.
(xix) There are no contracts or other documents
required to be filed as exhibits to the Registration Statement by the
1933 Act or the 1933 Act Regulations or the Trust Indenture Act (or any
rules or regulations thereunder) which have not been filed as exhibits
to the Registration Statement, or that are required to be summarized in
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) that are not so summarized.
(xx) The Offerors have not taken, directly or
indirectly, any action designed to result in or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Offerors to facilitate the sale or resale of the Designated Preferred
Securities, and neither of the Offerors is aware of any such action
taken or to be taken by any affiliate of the Offerors.
(xxi) The Company and the Subsidiaries own, or
possess adequate rights to use, all patents, copyrights, trademarks,
service marks, trade names and other rights necessary to conduct the
businesses now conducted by them in all material respects or as
described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
and neither the Company nor the Subsidiaries have received any notice
of infringement or conflict with asserted rights of others with respect
to any patents, copyrights, trademarks, service marks, trade names or
other rights which, individually or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis, and the Offerors do not
know of any basis for such infringement or conflict individually or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Company and the Subsidiaries on a
consolidated basis.
(xxii) Except as adequately disclosed in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), no labor dispute
involving the Company or the Subsidiaries exists or, to the knowledge
of the Offerors, is imminent which might be expected to have a material
adverse effect on the
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condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis which is required to be disclosed in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus).
(xxiii) The Company and the Subsidiaries have timely
and properly prepared and filed all necessary federal, state, local and
foreign tax returns which are required to be filed and have paid all
taxes shown as due thereon and have paid all other taxes and
assessments to the extent that the same shall have become due, except
such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. The Offerors have no knowledge of
any tax deficiency which has been or might be assessed against the
Company or the Subsidiaries which, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xxiv) Each of the material contracts, agreements and
instruments described or referred to in the Registration Statement or
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and each contract, agreement and
instrument filed as an exhibit to the Registration Statement is in full
force and effect and is the legal, valid and binding agreement of the
Company or the Subsidiaries, enforceable against it (and, to the
knowledge of the Company, against the other party(ies) thereto) in
accordance with its terms, except as the enforcement thereof may be
limited by general principles of equity and by bankruptcy or other laws
relating to or affecting creditors' rights generally. Except as
disclosed in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), neither the Company nor any Subsidiary is (with or without
notice or lapse of time or both) in breach or default in any material
respect thereunder and, to the knowledge of the Offerors, no other
party to any such agreement is (with or without notice or lapse of time
or both) in breach or default in any material respect thereunder.
(xxv) No relationship, direct or indirect, exists
between or among the Company or the Subsidiaries, on the one hand, and
the directors, officers, trustees, shareholders, customers or suppliers
of the Company or the Subsidiaries, on the other hand, which is
required to be described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) which is not adequately described therein.
(xxvi) No person has the right to request or require
the Company or the Subsidiaries to register any securities for offering
and sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the
Designated Preferred Securities except as adequately disclosed in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus).
(xxvii) The Designated Preferred Securities have been
approved for listing on the American Stock Exchange LLC subject to
official notice of issuance.
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(xxviii) Except as described in or contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
contractual encumbrances or restrictions or material legal restrictions
required to be described therein, on the ability of the Subsidiaries to
pay dividends or make any other distributions on its capital stock or
to pay any indebtedness owed to the Company.
(xxix) Neither of the Offerors is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(xxx) The Offerors have not distributed and will not
distribute prior to the Closing Date any prospectus in connection with
the offering contemplated hereby, other than a Preliminary Prospectus,
the Prospectus, the Registration Statement and the other materials
permitted by the 1933 Act and the 1933 Act Regulations and reviewed by
the Representative.
(xxxi) The Company and each of the Subsidiaries
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorizations, (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets, (C) access to
assets is permitted only in accordance with management's general or
specific authorization, and (D) the recorded accounts for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto.
(xxxii) Except as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there is no factual
basis for any action, suit or other proceeding involving the Company or
the Subsidiaries or any of their material assets for any failure of the
Company or any of the Subsidiaries, or any predecessor thereof, to
comply with any requirements of federal, state or local regulation
relating to air, water, solid waste management, hazardous or toxic
substances, or the protection of health or the environment; except
where such action, suit or other proceeding would not have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis. Except as described in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) or as would
not have material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis,
none of the property owned or leased by the Company or any of the
Subsidiaries is contaminated with any waste or hazardous substances,
and neither the Company nor any of the Subsidiaries may be deemed an
"owner or operator" of a "facility" or "vessel" which owns, possesses,
transports, generates or disposes of a "hazardous substance" as those
terms are defined in ss.9601 of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. ss.9601 et
seq.
(xxxiii) The Company and the Subsidiaries maintain
insurance covering in all material respects their properties, personnel
and business. Such insurance insures against
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such losses and risks as, in the judgment of the executive officers of
the Company, are adequate to protect in all material respects the
Company and the Subsidiaries and their businesses. Neither the Company
nor any of the Subsidiaries has received notice from any insurer or
agent of such insurer that substantial capital improvements or other
expenditures shall have to be made in order to continue such insurance.
All such insurance is outstanding and duly in force on the date hereof
and shall be outstanding and duly in force on the Closing Date and, if
applicable, the Option Closing Date, with such exceptions as would not
have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
3. OFFERING BY THE UNDERWRITERS. After the Registration Statement
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriters shall, subject to the terms
and conditions hereof, offer the Firm Preferred Securities for sale to the
public upon the terms and conditions set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering price
and change the other selling terms, provided the proceeds to the Trust shall not
be reduced as a result of such reduction or change. Because the NASD is expected
to view the Preferred Securities as interests in a direct participation program,
the offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's Conduct Rules.
The Underwriters may reserve and sell such of the Designated
Preferred Securities purchased by the Underwriters as the Underwriters may elect
to dealers chosen by them (the "Selected Dealers") at the public offering price
set forth in the Prospectus less the applicable Selected Dealers' concessions
set forth therein, for re-offering by Selected Dealers to the public at the
public offering price. The Underwriters may allow, and Selected Dealers may
re-allow, a concession set forth in the Prospectus to certain other brokers and
dealers.
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors jointly and
severally covenant with the Underwriters as follows:
(a) The Offerors shall cause the Registration Statement
and any amendments thereto, if not effective at the time of execution of this
Agreement, to become effective as promptly as possible. If the Registration
Statement has become or becomes effective pursuant to Rule 430A and information
has been omitted therefrom in reliance on Rule 430A, then the Offerors shall
prepare and file in accordance with Rule 430A and Rule 424(b) copies of the
Prospectus or, if required by Rule 430A, a post-effective amendment to the
Registration Statement (including the Prospectus) containing all information so
omitted and shall provide evidence satisfactory to the Representative of such
timely filing.
(b) The Offerors shall notify the Representative
immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, has become
effective, or when the Prospectus or any supplement to the Prospectus
or any amended Prospectus has been filed;
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(ii) of the receipt of any comments or requests
from the Commission relating to the Registration Statement or the
Prospectus;
(iii) of any request of the Commission to amend or
supplement the Registration Statement, any Preliminary Prospectus or
the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state
or other regulatory body of any stop order or other order suspending
the effectiveness of the Registration Statement, preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, or
suspending the qualification of any of the Designated Preferred
Securities for offering or sale in any jurisdiction or the institution
or threat of institution of any proceedings for any of such purposes.
The Offerors shall use their best efforts to prevent the issuance of
any such stop order or of any other such order and, if any such order
is issued, to cause such order to be withdrawn or lifted as soon as
possible.
(c) The Offerors shall furnish to the Underwriters, from
time to time without charge, as soon as available, as many copies as the
Underwriters may reasonably request of (i) the registration statement as
originally filed and of all amendments thereto, including exhibits, whether
filed before or after the Registration Statement becomes effective, (ii) all
exhibits and documents filed therewith, (iii) all consents and certificates of
experts in executed form, (iv) each Preliminary Prospectus and all amendments
and supplements thereto, and (v) the Prospectus, and all amendments and
supplements thereto.
(d) During the time when a prospectus is required to be
delivered under the 1933 Act in connection with sales by the Underwriters or any
dealer, the Offerors shall comply with the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Designated Preferred Securities as contemplated herein
and in the Trust Agreement and the Prospectus. The Offerors shall not file any
amendment to the registration statement as originally filed or to the
Registration Statement and shall not file any amendment thereto or make any
amendment or supplement to any Preliminary Prospectus or to the Prospectus of
which the Representative shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings thereof or to
which the Representative or its counsel shall reasonably object. If it is
necessary, in the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel, to amend or supplement the Registration Statement or the
Prospectus in connection with the distribution of the Designated Preferred
Securities, the Offerors shall forthwith amend or supplement the Registration
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission (provided the Representative or its counsel does not reasonably
object), and furnishing to the Underwriters, such number of copies as the
Underwriters may reasonably request of an amendment or amendments of, or a
supplement or supplements to, the Registration Statement or the Prospectus, as
the case may be (in form and substance reasonably satisfactory to the
Representative and its counsel). If, at any time when a prospectus relating to
the Preferred Securities is required to be delivered under the 1933 Act or the
1933 Act Regulations in connection with sales by the Underwriters or any dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus to correct an untrue statement of a material fact or
to include a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if for any
reason it is necessary at any time to amend or supplement the
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Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the
Offerors shall, subject to the second sentence of this subsection (d), forthwith
at its cost and expense amend or supplement the Prospectus by preparing and
filing with the Commission, and furnishing to the Underwriters, such number of
copies as the Underwriters may reasonably request of an amendment or amendments
of, or a supplement or supplements to, the Prospectus (in form and substance
reasonably satisfactory to the Representative and its counsel) so that, as so
amended or supplemented, the Prospectus shall not contain an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) The Offerors shall cooperate with the Representative
and its counsel in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions
within the United States of America as the Representative may reasonably request
and shall continue such qualifications in effect so long as may be advisable for
distribution of the Designated Preferred Securities; provided, however, that the
Offerors shall not be required to qualify to do business as a foreign
corporation or file a general consent to service of process in any jurisdiction
in connection with the foregoing. The Offerors shall file such statements and
reports as may be required by the laws of each jurisdiction in which the
Designated Preferred Securities have been qualified as above. The Offerors shall
notify the Representative immediately of, and confirm in writing, the suspension
of qualification of the Designated Preferred Securities or threat thereof in any
jurisdiction.
(f) The Offerors shall make generally available to their
security holders in the manner contemplated by Rule 158 of the 1933 Act
Regulations and furnish to the Representative as soon as practicable, but in any
event not later than 16 months after the Effective Date, a consolidated earnings
statement of the Offerors conforming with the requirements of Section 11(a) of
the 1933 Act and Rule 158 of the 1933 Act Regulations.
(g) The Offerors shall use the proceeds from the sale of
the Designated Preferred Securities to be sold by the Trust hereunder in the
manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For 5 years from the Effective Date, the Offerors
shall furnish to the Representative copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities or its common stock as a class, copies of all
reports and financial statements filed with or furnished to the Commission
(other than portions for which confidential treatment has been obtained from the
Commission) or with or any national securities exchange or self-regulatory
organization, and such other documents, reports and information concerning the
business and financial condition of the Offerors as the Representative may
reasonably request, other than such documents, reports and information for which
the Offerors has the legal obligation not to reveal to the Representative.
(i) For a period of 180 days from the Effective Date, the
Offerors shall not, without the Representative's prior written consent, directly
or indirectly offer, sell, contract to sell or otherwise dispose of Preferred
Securities other than pursuant to this Agreement, any other beneficial interests
in the assets of the Trust or any securities of the Trust or the Company that
are substantially similar to the Preferred Securities or the Debentures,
including any guarantee
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of such beneficial interests or substantially similar securities, or securities
convertible into or exchangeable for or that represent the right to receive any
such beneficial interest or substantially similar securities.
(j) The Offerors shall, as provided in the Trust
Agreement and the Indenture, use their best efforts to cause the Designated
Preferred Securities to become listed on the American Stock Exchange LLC or in
lieu thereof another national securities exchange. If the Designated Preferred
Securities are exchanged for Debentures, the Company shall, as provided in the
Trust Agreement and the Indenture, use its best efforts to have the Debentures
promptly listed on the American Stock Exchange LLC or another organization on
which the Designated Preferred Securities are then listed, and to have the
Debentures promptly registered under the 1934 Act.
(k) Subsequent to the date of this Agreement and through
the date which is the later of (i) the day following the date on which the
Underwriters' Option to purchase the Option Preferred Securities shall expire or
(ii) the day following the Option Closing Date with respect to any Option
Preferred Securities that the Underwriters shall elect to purchase, except as
described in or contemplated by the Prospectus, neither the Company nor any of
the Subsidiaries shall take any action (or refrain from taking any action) which
shall result in the Company or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, and there shall not be any material
change in the financial position, capital stock, or any material increase in
long-term debt, obligations under capital leases or short-term borrowings
(except for repurchase agreements in the ordinary course of business consistent
with past practice) of the Company and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not take, directly or indirectly,
any action designed to result in or which has constituted or which might
reasonably be expected to (i) cause or result in stabilization or manipulation
of the price of any security of the Offerors to facilitate the sale or resale of
the Designated Preferred Securities or (ii) otherwise violate the Commission's
Regulation M, and the Offerors are not aware of any such action taken or to be
taken by any affiliate of the Offerors.
(m) Prior to the Closing Date (and, if applicable, the
Option Closing Date), the Offerors shall not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Company, the Subsidiaries or the offering of the Designated Preferred
Securities without the Representative's prior written consent.
(n) The Offerors shall comply with all registration,
filing and reporting requirements of the 1934 Act for so long as the Preferred
Securities or the Debentures shall remain outstanding.
(o) The Offerors shall not, for a period of 180 days
after the date hereof, without the prior written consent of the Representative,
purchase, redeem or call for redemption, or prepay or give notice of prepayment
(or announce any redemption or call for redemption, any prepayment or notice of
prepayment) of any of the Offerors' securities, other than the redemption of the
Preferred Securities pursuant to their terms and as contemplated in the
Prospectus.
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5. PAYMENT OF EXPENSES. Whether or not this Agreement is
terminated or the sale of the Designated Preferred Securities to the
Underwriters is consummated, the Company covenants and agrees that it will pay
or cause to be paid (directly or by reimbursement) all of its costs and expenses
incident to the performance of the obligations of the Offerors under this
Agreement, including:
(a) the preparation, printing, filing, delivery and
shipping of the initial registration statement, the Preliminary Prospectus or
Prospectuses, the Registration Statement and the Prospectus and any amendments
or supplements thereto, and the printing, delivery and shipping of this
Agreement and any other underwriting documents (including, without limitation,
selected dealers agreements);
(b) all fees, expenses and disbursements of the counsel
and accountants for the Offerors;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as the
Representative may request, including all filing fees and fees and disbursements
of counsel to the Representative in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary and Final Blue
Sky Memoranda and any legal investment surveys and any supplements thereto
(provided, however, that the aggregate amount payable by the Company to counsel
for the Representative with respect to the matters described in this Section
5(c) shall not exceed $7,500);
(d) all fees and expenses incurred in connection with
filings made with the NASD and DTC;
(e) any applicable fees and other expenses incurred in
connection with the listing of the Designated Preferred Securities and, if
applicable, the Guarantee and the Debentures on the American Stock Exchange LLC;
(f) the cost of furnishing to the Underwriters copies of
the initial registration statement, any Preliminary Prospectus, the Registration
Statement and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or
registrar and the fees and disbursements of counsel to any transfer agent or
registrar;
(h) all costs and expenses (including stock transfer
taxes) incurred in connection with the printing, issuance and delivery of the
Designated Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution
and delivery of the Trust Agreement, the Indenture, the Guarantee and the
Expense Agreement; and
(j) all other costs and expenses incident to the
performance of the obligations of the Offerors hereunder and under the Trust
Agreement that are not otherwise specifically provided for in this Section 5.
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If the sale of Designated Preferred Securities contemplated by
this Agreement is not completed due to the termination of this Agreement
pursuant to the terms hereof (other than pursuant to Section 9 hereof), the
Company shall pay the Representative its accountable out-of-pocket expenses in
connection herewith or in contemplation of the performance of the
Representative's obligations hereunder, including travel expenses, reasonable
fees, expenses and disbursements of counsel or other out-of-pocket expenses
incurred by the Representative in connection with any discussion of the offering
of the Designated Preferred Securities or the contents of the Registration
Statement, any investigation of the Company and the Subsidiaries, or any
preparation for the marketing, purchase, sale or delivery of the Designated
Preferred Securities, in each case following presentation of reasonably detailed
invoices therefor; provided, however, that in no event shall the obligations of
the Company with respect to the matters described in this paragraph exceed
$75,000 in the aggregate (provided that such amounts shall be in addition to any
expenses payable under Section 5(c) hereof).
If the sale of Designated Preferred Securities contemplated by
this Agreement is completed, the Company shall not be responsible for payment of
fees or disbursements of counsel to the Representative other than in accordance
with paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase and pay for the Firm Preferred Securities and,
following exercise of the Option granted by the Offerors in Section 1 of this
Agreement, the Option Preferred Securities, are subject, in the Representative's
discretion, to the accuracy of and compliance with the representations and
warranties and agreements of the Offerors herein as of the date hereof and as of
the Closing Date (or in the case of the Option Preferred Securities, if any, as
of the Option Closing Date), to the accuracy of the written statements of the
Offerors made pursuant to the provisions hereof, to the performance by the
Offerors of their covenants and obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared effective prior to
the time of execution hereof, the Registration Statement shall become effective
not later than 10:00 a.m., St. Louis time, on the first business day following
the time of execution of this Agreement, or at such later time and date as the
Representative may agree to in writing. If required, the Prospectus and any
amendment or supplement thereto shall have been timely filed in accordance with
Rule 424(b) and Rule 430A under the 1933 Act and Section 4(a) hereof. No stop
order suspending the effectiveness of the Registration Statement or any
amendment or supplement thereto shall have been issued under the 1933 Act or any
applicable state securities laws and no proceedings for that purpose shall have
been instituted or shall be pending, or, to the knowledge of the Offerors or the
Representative, shall be contemplated by the Commission or any state authority.
Any request on the part of the Commission or any state authority for additional
information (to be included in the Registration Statement or Prospectus or
otherwise) shall have been disclosed to the Representative and complied with to
the satisfaction of the Representative and to the satisfaction of counsel for
the Representative.
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(b) No Underwriter shall have advised the Company at or before
the Closing Date (and, if applicable, the Option Closing Date) that the
Registration Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of a fact which, in such Underwriter's opinion, is material or omits to state a
fact which, in such Underwriter's opinion, is material and is required to be
stated therein or is necessary to make statements therein (in the case of the
Prospectus or any amendment or supplement thereto, in light of the circumstances
under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Trust Agreement,
and the Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be satisfactory
in all material respects to counsel to the Representative, and the Company and
the Subsidiaries shall have furnished to such counsel all documents and
information relating thereto that they may reasonably request to enable them to
pass upon such matters.
(d) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLP, counsel to the
Offerors, shall have furnished to the Representative on behalf of the
Underwriters its signed opinion, dated the Closing Date or the Option Closing
Date, as the case may be, in form and substance satisfactory to counsel to the
Representative to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the State of
Kansas, and is duly registered as a bank holding company under the BHC
Act. Each of the Subsidiaries is duly incorporated or organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization. Each of the Company and
the Subsidiaries has full power (corporate and otherwise) and authority
to own or lease its properties and to conduct its business as such
business is described in the Prospectus and is currently conducted in
all material respects. All outstanding shares of capital stock of the
Subsidiaries have been duly authorized and validly issued and are fully
paid and nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Sections 55 and 1831o and, to the best of
such counsel's knowledge, except as disclosed in the Prospectus, there
are no outstanding rights, options or warrants to purchase any such
shares or securities convertible into or exchangeable for any such
shares.
(ii) The capital stock, the Debentures and the
Guarantee of the Company and the equity securities of the Trust conform
to the description thereof contained in the Registration Statement and
the Prospectus in all material respects. To the best of such counsel's
knowledge, the capital stock of the Company authorized and issued as of
March 31, 2000 is as set forth under the caption "Capitalization" in
the Prospectus, has been duly authorized and validly issued, and is
fully paid and nonassessable. To the best of such counsel's knowledge,
there are no outstanding rights, options or warrants to purchase, no
other outstanding securities convertible into or exchangeable for, and
no commitments, plans or arrangements to issue, any shares of capital
stock of the Company or equity securities of the Trust, except as
described in the Prospectus. The articles of incorporation of the
Company have been duly and validly amended to read as described in the
Proxy Statement, dated December 20, 1999, distributed to each of the
record shareholders of the
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Company. The Company's 4 for 1 stock split has been duly and validly
effected as of January 20, 2000, in accordance with applicable Kansas
law.
(iii) The issuance, sale and delivery of the
Debentures in accordance with the terms and conditions of this
Agreement, the Trust Agreement and the Indenture have been duly
authorized by all necessary actions of the Company. The Designated
Preferred Securities shall conform to the description thereof in the
Registration Statement, the Prospectus and the Trust Agreement. The
Designated Preferred Securities have been approved for listing on the
American Stock Exchange LLC, subject to official notice of issuance.
There are no preemptive or other rights to subscribe for or to
purchase, and, other than as disclosed in the Prospectus, no
restrictions upon the voting or transfer of, any shares of capital
stock or equity securities of the Company or the Subsidiaries pursuant
to the articles of incorporation or charter, by-laws or other governing
documents (including without limitation, the Trust Agreement) of the
Company or the Subsidiaries, or, to the best of such counsel's
knowledge, any agreement or other instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries may be bound.
(iv) The Company has all requisite corporate power,
to enter into and perform their obligations under this Agreement, and
this Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
obligations of the Company enforceable in accordance with its terms,
except as the enforcement hereof or thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally, and except as the
indemnification and contribution provisions hereof may be limited under
applicable laws and certain remedies may not be available in the case
of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and
the Guarantee has been duly qualified under the Trust Indenture Act,
has been duly authorized, executed and delivered by the Company, and is
a valid and legally binding obligation of the Company enforceable in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
(vi) The Debentures have been duly authorized,
executed, authenticated and delivered by the Company, are entitled to
the benefits of the Indenture and are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of equity.
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(viii) Neither the Offerors nor, to the best of such
counsel's knowledge, any of the Subsidiaries is in breach or violation
of, or default under, with or without notice or lapse of time or both,
its articles of incorporation, charter, by-laws or governing document
(including without limitation, the Trust Agreement). The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement and the Trust Agreement do
not and shall not conflict with, result in the creation or imposition
of any material lien, claim, charge, encumbrance or restriction upon
any property or assets of the Company or the Subsidiaries or the
Designated Preferred Securities pursuant to, or constitute a material
breach or violation of, or constitute a material default under, with or
without notice or lapse of time or both, (A) any of the terms,
provisions or conditions of the articles of incorporation, charter,
by-laws or governing document (including without limitation, the Trust
Agreement) of the Company or the Subsidiaries, or any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license or any other agreement or instrument to which
the Company or the Subsidiaries is a party or by which any of them or
any of their respective properties may be bound and which are required
to be filed as exhibits to the Registration Statement by the 1933 Act
or the 1933 Act Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) or (B) any order, decree, judgment, franchise,
license, Permit (as defined in paragraph xvii), rule or regulation of
any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Company or the Subsidiaries or any of their
respective properties which, in each case, is material to the Company
and the Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of, or filing, registration or qualification
with, any person (including, without limitation, any court,
governmental body or authority) is required under Kansas law in
connection with the transactions contemplated by this Agreement in
connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriters.
(ix) To the best of such counsel's knowledge, holders
of securities of the Offerors do not have any right that, if exercised,
would require the Offerors to cause such securities to be included in
the Registration Statement or have waived such right. To the best of
such counsel's knowledge, neither the Company nor any of the
Subsidiaries is a party to any agreement or other instrument which
grants rights for or relating to the registration of any securities of
the Offerors.
(x) Except as set forth in the Registration Statement
and the Prospectus, (i) no action, suit or proceeding at law or in
equity is pending or, to the best of such counsel's knowledge,
threatened in writing to which the Company or any Subsidiary is or may
be a party, and (ii) no action, suit or proceeding is pending or, to
the best of such counsel's knowledge, threatened in writing against or
affecting the Company or any Subsidiary or any of their properties,
before or by any court or governmental official, commission, board or
other administrative agency, authority or body, or any arbitrator,
wherein in either situation described in (i) or (ii) above an
unfavorable decision, ruling or finding could reasonably be expected to
have a material adverse effect on the consummation of this Agreement or
the issuance and sale of the Designated Preferred Securities as
contemplated herein or the condition (financial or otherwise),
earnings, business, or results of operations of the Company and the
Subsidiaries on a consolidated basis or which is required to be
disclosed in the Registration Statement or the Prospectus and, in each
case, is not so disclosed.
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(xi) No authorization, approval, consent or order of
or filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus, except such as have been obtained under the 1933 Act and
the Trust Indenture Act and from the American Stock Exchange LLC
(relating to the listing of the Designated Preferred Securities) and
except such as may be required under state securities laws or
Interpretations or Rules of the NASD in connection with the purchase
and distribution of the Designated Preferred Securities by the
Underwriters.
(xii) The Registration Statement and the Prospectus
and any amendments or supplements thereto (other than the financial
statements or other financial or statistical data included therein or
omitted therefrom and Underwriters' Information, as to which such
counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the 1933 Act and the 1933
Act Regulations as of the effective date of the Registration Statement.
(xiii) To the best of such counsel's knowledge, there
are no contracts, agreements, leases or other documents of a character
required to be disclosed in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not so disclosed or filed therein for reference.
(xiv) The statements under the captions "Business,"
"Regulation and Supervision," "Description of Trust Preferred
Securities," "Description of Junior Subordinated Debentures,"
"Description of Trust Preferred Securities Guarantee," "Description of
Expense Agreement," "Relationship Among the Trust Preferred Securities,
the Junior Subordinated Debentures and the Trust Preferred Securities
Guarantee," "Material Federal Income Tax Consequences," and "ERISA
Considerations," in the Registration Statement or the Prospectus,
insofar as such statements constitute a summary of legal and regulatory
matters, documents or instruments referred to therein, are accurate
descriptions of the matters summarized therein in all material respects
and fairly present the information called for with respect to such
legal matters, documents and instruments, other than financial and
statistical data, as to which such counsel shall not be required to
express any opinion or belief.
(xv) Such counsel has been advised by the staff of
the Commission that the Registration Statement has become effective
under the 1933 Act; any required filing of the Prospectus pursuant to
Rule 424(b) has been made within the time period required by Rule
424(b); to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for a stop order are pending or threatened by
the Commission.
(xvi) Except as described in the Registration
Statement and the Prospectus, to the best of such counsel's knowledge,
there are no contractual encumbrances or restrictions, or material
legal restrictions, required to be described therein on the ability of
the Subsidiaries to pay dividends or make any other distributions on
its capital stock or to pay indebtedness owed to the Company.
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(xvii) To the best of such counsel's knowledge, (A)
the business and operations of the Company and the Subsidiaries comply
in all material respects with all statutes, laws, rules and regulations
applicable thereto and which are material to the Offerors and the
Subsidiaries on a consolidated basis, except in those instances where
non-compliance would not materially impair the ability of the Company
and the Subsidiaries to conduct their business and would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, affairs or results of operations of the
Company and the Subsidiaries on a consolidated basis; and (B) the
Company and the Subsidiaries possess and are operating in all material
respects in compliance with the terms, provisions and conditions of all
permits, consent, licenses, franchises and governmental and regulatory
authorizations ("Permits") required to conduct their businesses as
described in the Registration Statement and the Prospectus and which
are material to the Company and the Subsidiaries on a consolidated
basis, except in those instances where the loss thereof or
non-compliance therewith would not have a material adverse effect on
the condition (financial or otherwise), earnings, business, prospects,
affairs or results of operations of the Company and the Subsidiaries on
a consolidated basis; to the best of such counsel's knowledge, all such
Permits are valid and in full force and effect, and, to the best of
such counsel's knowledge, no action, suit or proceeding is pending or
threatened which may lead to the revocation, termination, suspension or
non-renewal of any such Permit, except in those instances where the
loss thereof or non-compliance therewith would not materially impair
the ability of the Company or the Subsidiaries to conduct their
businesses.
(xviii) Neither the Company nor the Trust is and,
after giving effect to the offering and sale of the Designated
Preferred Securities and the application of the proceeds thereof as
described in the Prospectus, neither the Company nor the Trust will be,
an "investment company" as defined in the Investment Company Act of
1940, as amended.
In giving the above opinion, such counsel may state (1) that,
insofar as such opinion involves factual matters, they have relied upon
certificates of officers of the Offerors including, without limitation,
certificates as to the identity of any and all material contracts, indentures,
mortgages, deeds of trust, loans or credit agreements, notes, leases,
franchises, licenses or other agreements or instruments, and all material
permits, easements, consents, licenses, franchises and government regulatory
authorizations for purposes of paragraphs (viii), (xiii) and (xvii) hereof, (2)
that its opinion is limited to matters governed by the federal laws of the
United State of America and the laws of the State of Kansas, and (3) that it
has, to the extent it deems proper, relied upon written statements or
certificates of officers of departments of various jurisdictions having custody
of documents respecting the corporate existence or good standing of the Company
and the Subsidiaries, and upon certificates of public officials. In giving such
opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇▇ described herein as to matters of Delaware law.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and the Prospectus, such counsel has
participated in conferences with certain officers and representatives of the
Offerors and with their independent public accountants and with the
Representative and counsel for the Representative, at which conferences such
counsel made inquiries of such officers, representatives and accountants and
discussed the contents of the Registration Statement and the Prospectus (without
taking further action to verify independently the statements made in the
Registration Statement and the Prospectus, and without assuming responsibility
for the accuracy or completeness of such
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26
statements, except to the extent expressly provided above) and such counsel has
no reason to believe (A) that the Registration Statement or any amendment
thereto (except for the financial statements, notes thereto and the related
schedules and other financial, accounting and statistical data included therein
or omitted therefrom or the Underwriters' Information, as to which such counsel
need express no opinion), at the time the Registration Statement or any such
amendment became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or (B) that the Prospectus or any amendment or
supplement thereto (except for the financial statements, the notes thereto and
the related schedules and other financial, accounting and statistical data
included therein or omitted therefrom or the Underwriters' Information, as to
which such counsel need express no opinion), at the time the Registration
Statement became effective (or, if the term "Prospectus" refers to the
prospectus first filed pursuant to Rule 424(b) of the 1933 Act Regulations, at
the time the Prospectus was issued), at the time any such amended or
supplemented Prospectus was issued, at the Closing Date and, if applicable, the
Option Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, or (C) that there is any amendment
to the Registration Statement required to be filed that has not already been
filed.
(e) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇, special Delaware counsel
to the Offerors, shall have furnished to the Representative on behalf of the
Underwriters its signed opinion, dated as of Closing Date or the Option Closing
Date, as the case may be, in form and substance satisfactory to such counsel, to
the effect that:
(i) The Trust has been duly formed and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act and, under the Trust Agreement and the Delaware
Business Trust Act, has the requisite business trust power and
authority to conduct its business as described in the Registration
Statement and the Prospectus.
(ii) Each of this Agreement and the Trust
Agreement is a legal, valid and binding agreement of the Trust and the
Trustees, and is enforceable against the Company, as depositor, and the
Trustees, in accordance with their respective terms.
(iii) Under the Trust Agreement and the Delaware
Business Trust Act, the execution and delivery of this Agreement by the
Trust, and the performance by the Trust of its obligations hereunder,
have been authorized by all requisite trust action on the part of the
Trust.
(iv) The Designated Preferred Securities have been
duly authorized for issuance by the Trust Agreement and, when issued
and sold in accordance with the Trust Agreement and this Agreement, the
Designated Preferred Securities will be, subject to the qualifications
set forth in paragraph (v) below, fully paid and nonassessable
beneficial interests in the assets of the Trust and will entitle the
holder thereof to the benefits of the Trust Agreement. The certificate
evidencing the Designated Preferred Securities is in due and proper
form and complies with any applicable requirements of the Delaware
Business Trust Act.
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(v) Under the Trust Agreement and the Delaware
Business Trust Act, holders of Designated Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same limitation
on personal liability extended to shareholders of private, for-profit
corporations organized under the General Corporation Law of the State
of Delaware. Such opinion may note that the holders of Designated
Preferred Securities may be obligated to make payments or provide
indemnity or security as set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Preferred Securities is
not subject to preemptive rights.
(vii) The issuance and sale by the Trust of the
Designated Preferred Securities and the Common Securities, the
execution, delivery and performance by the Trust of this Agreement, and
the consummation of the transactions contemplated by this Agreement, do
not violate (a) the Trust Agreement, or (b) any applicable Delaware
law, rule or regulation.
Such opinion may state that it is limited to the laws of the
State of Delaware and that the opinion expressed in paragraphs (ii) and (iv)
above is subject to the effect upon the Trust Agreement of (1) bankruptcy,
insolvency, receivership, liquidation, fraudulent conveyance, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and remedies, (2) general principles of equity (regardless of
whether considered and applied in a proceeding in equity or at law), and (3)
considerations of public policy and the effect of applicable law relating to
fiduciary duties.
(f) ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇., counsel to the
Representative, shall have furnished to the Representative on behalf of the
Underwriters its signed opinion, dated the Closing Date or the Option Closing
Date, as the case may be, with respect to the sufficiency of all corporate
procedures and other legal matters relating to this Agreement, the validity of
the Designated Preferred Securities, the Registration Statement, the Prospectus
and such other related matters as the Representative may reasonably request and
there shall have been furnished to such counsel such documents and other
information as they may request to enable them to pass on such matters. In
giving such opinion, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇. may rely as to matters of fact
upon statements and certifications of officers of the Offerors and of other
appropriate persons and may rely as to matters of law, other than law of the
United States and the State of Missouri, upon the opinions of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇.
(g) On the date of this Agreement and on the Closing Date
(and, if applicable, any Option Closing Date), the Representative on behalf of
the Underwriters shall have received from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ a letter, dated
the date of this Agreement and the Closing Date (and, if applicable, the Option
Closing Date), respectively, in form and substance satisfactory to the
Representative, confirming that they are independent public accountants with
respect to the Company and the Subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial
statements and schedules of the Company audited by them and included in
the Registration Statement comply as to
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form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by the
American Institute of Certified Public Accountants as described is SAS
No. 71, "Interim Financial Information," inquiries of officials of the
Company responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such letter,
which procedures do not constitute an audit in accordance with U.S.
generally accepted auditing standards, nothing came to the attention
that caused them to believe that, if applicable, the unaudited interim
consolidated financial statements of the Company included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and 1933 Act Regulations or are not in conformity with U.S. generally
accepted accounting principles applied on a basis substantially
consistent, except as noted in the Registration Statement, with the
basis for the audited consolidated financial statements of the Company
included in the Registration Statement.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with U.S. generally accepted
auditing standards, consisting of a reading of the unaudited interim
financial statements and other information referred to below, a reading
of the latest available unaudited condensed consolidated financial
statements of the Company inspection of the minute books of the Company
since the date of the latest audited financial statements of the
Company included in the Registration Statement and the Prospectus,
inquiries of officials of the Company responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) as of a specified date not more than
five days prior to the date of such letter, there have been
any changes in the consolidated capital stock of the Company,
any increase in the consolidated debt of the Company, any
decreases in consolidated total assets or shareholders' equity
of the Company or any changes, decreases or increases in other
items specified by the Representative, in each case as
compared with amounts shown in the latest unaudited interim
consolidated statement of financial condition of the Company
included in the Registration Statement and the Prospectus,
except in each case for changes, increases or decreases which
the Registration Statement and the Prospectus specifically
discloses that have occurred or may occur or which are
described in such letter; and
(B) for the period from the date of the
latest unaudited interim consolidated financial statements of
the Company included in the Registration Statement and the
Prospectus to the specified date referred to in Clause
(iii)(A), there were any decreases in the consolidated
interest income, net interest income, or net income of the
Company or in the per share amount of net income of the
Company or any changes, decreases or increases in any other
items specified by the Representative, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length
specified by the Representative, except in each
case for increases or decreases which the Registration
Statement and the Prospectus discloses have occurred or may
occur, or which are described in such letter.
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(iv) In addition to the audit referred to in their
report included in the Registration Statement and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (ii) and (iii) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with U.S. generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representative which are derived from the general accounting records
and consolidated financial statements of the Company which appear in
the Registration Statement and have compared such amounts, percentages
and financial information with the accounting records and the material
derived from such records and consolidated financial statements of the
Company and have found them to be in agreement.
In the event that the letters to be delivered referred to
above set forth any such changes, decreases or increases as specified in Clauses
(iii)(A) or (iii)(B), above, or any exceptions from such agreement specified in
Clause (iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representative shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts shown in the latest audited
consolidated statement of financial condition of the Company included in the
Registration Statement, (y) reflect a material adverse change in the items
specified in Clause (iii)(B) above as compared with the corresponding periods of
the prior year or other period specified by the Representative, or (z) reflect a
material change in items specified in Clause (iv) above from the amounts shown
in the Preliminary Prospectus distributed by the Underwriters in connection with
the offering contemplated hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing
Date, the Representative shall have received certificates of the
chief executive officer and the chief financial and accounting officer of the
Company, which certificates shall be deemed to be made on behalf of the Company
dated as of the Closing Date and, if applicable, the Option Closing Date,
evidencing satisfaction of the conditions of Section 6(a) and (1) stating that
(i) the representations and warranties of the Company set forth in Section 2(a)
hereof are true and correct as of the Closing Date and, if applicable, the
Option Closing Date, and that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
such Closing Date and, if applicable, the Option Closing Date, (ii) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus and other than as referred to therein, there has not been any
material adverse change in the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company and the
Subsidiaries taken on a consolidated basis, (iii) since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
there has not been any material transaction entered into by the Company or the
Subsidiaries other than transactions in the ordinary course of business, (iv)
they have carefully examined the Registration Statement and the Prospectus as
amended or supplemented and nothing has come to their attention that would lead
them to believe that either the Registration Statement or the Prospectus, or any
amendment or supplement thereto as of their respective effective or issue dates,
contained, and the Prospectus as amended or supplemented at such Closing Date
(and, if applicable, the Option Closing Date), contains any untrue statement of
a material fact, or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (2) covering such
other matters as the
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Representative may reasonably request. The officers' certificate of the Company
shall further state that no stop order affecting the Registration Statement is
in effect or, to their knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option Closing
Date, the Representative shall have received a certificate of an authorized
representative of the Trust to the effect that to the best of his or her
knowledge based upon a reasonable investigation, the representations and
warranties of the Trust in this Agreement are true and correct as though made on
and as of the Closing Date (and, if applicable, the Option Closing Date), the
Trust has complied with all the agreements and satisfied all the conditions
required by this Agreement to be performed or satisfied by the Trust on or prior
to the Closing Date and since the most recent date as of which information is
given in the Prospectus, except as contemplated by the Prospectus, the Trust has
not incurred any material liability or obligation, direct or contingent, or
entered into any material transactions, other than in the ordinary course of
business, and there has not been any material adverse change in the condition
(financial or otherwise) of the Trust.
(j) On the Closing Date, the Representative shall have
received duly executed counterparts of the Trust Agreement, the Guarantee, the
Indenture and the Expense Agreement.
(k) The NASD, upon review of the terms of the public offering
of the Designated Preferred Securities, shall not have objected to the
Underwriters' participation in such offering.
(l) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Offerors shall have furnished to the Representative and
counsel for the Representative all such other documents, certificates and
opinions as they have reasonably requested.
All opinions, certificates, letters and other documents shall
be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Representative. The Offerors shall
furnish the Representative with conformed copies of such opinions, certificates,
letters and other documents as the Representative shall reasonably request.
If any of the conditions referred to in this Section 6 shall
not have been fulfilled when and as required by this Agreement, this Agreement
and all of the Underwriters' obligations hereunder may be terminated by the
Representative on notice to the Company at, or at any time before,
the Closing Date or the Option Closing Date, as applicable. Any such termination
shall be without liability of the Underwriters to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors agree to jointly and severally indemnify and
hold harmless each Underwriter, each of its directors, officers and
agents, and each person, if any, who controls any Underwriter within the
meaning of the 1933 Act, against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
reasonable attorney fees and expenses), joint or several, arising out of or
based upon (i) any untrue statement or alleged untrue statement of a material
fact made by the Company or the Trust contained in Section 2(a) of this
Agreement (or any certificate delivered by the Company or the Trust pursuant to
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Sections 6(h), 6(i) or 6(l) hereof) or the registration statement as originally
filed or the Registration Statement, any Preliminary Prospectus or the
Prospectus, or in any amendment or supplement thereto, (ii) any blue sky
application or other document executed by the Company or the Trust specifically
for that purpose or based upon written information furnished by the Company or
the Trust filed in any state or other jurisdiction in order to qualify any of
the Designated Preferred Securities under the securities laws thereof (any such
application, document or information being hereinafter referred to as a "Blue
Sky Application"), (iii) any omission or alleged omission to state a material
fact in the registration statement as originally filed or the Registration
Statement, any Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application required to be stated therein
or necessary to make the statements therein not misleading, and against any and
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation and attorney fees), joint or several, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the Prospectus, or in any amendment
or supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a 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 (iv) the enforcement of this
indemnification provision or the contribution provisions of Section 7(d); and
shall reimburse each such indemnified party for any reasonable legal or other
expenses as incurred, but in no event less frequently than 30 days after each
invoice is submitted, incurred by them in connection with investigating or
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action, notwithstanding the possibility
that payments for such expenses might later be held to be improper, in which
case such payments shall be promptly refunded; provided, however, that the
Offerors shall not be liable in any such case to the extent, but only to the
extent, that any such losses, claims, damages, liabilities and expenses arise
out of or are based upon any untrue statement or omission or allegation thereof
that has been made therein or omitted therefrom in reliance upon and in
conformity with the Underwriters' Information; provided, that the
indemnification contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or of any person
controlling any Underwriter) to the extent any such losses, claims, damages,
liabilities or expenses directly results from the fact that such Underwriter
sold Designated Preferred Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (as amended or supplemented if any amendments or supplements thereto
shall have been furnished to the Representative in sufficient time to distribute
same with or prior to the written confirmation of the sale involved), if
required by law, and if such loss, claim, damage, liability or expense would not
have arisen but for the failure to give or send such person such document. The
foregoing indemnity agreement is in addition to any liability the Company or the
Trust may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees
to indemnify and hold harmless each Offeror, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls an Offeror within the meaning of the 1933 Act, to the same extent as
required by the foregoing indemnity from the Offerors to each Underwriter, but
only with respect to the Underwriters' Information or information related to any
Underwriter furnished in writing to an Offeror through such Underwriter by or on
its behalf expressly for use in a Blue Sky Application. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to any such indemnified party.
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(c) If any action or claim shall be brought or asserted
against any indemnified party or any person controlling an indemnified party in
respect of which indemnity may be sought from the indemnifying party, such
indemnified party or controlling person shall promptly notify the indemnifying
party in writing, and the indemnifying party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all expenses; provided, however, that the failure so to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party under this Section 7 (as provided in the last
sentence of Section 7(a) and the last sentence of Section 7(b)), and further,
shall only relieve it from liability under this Section 7 to the extent
prejudiced thereby. Any indemnified party or any such controlling person shall
have the right to employ separate counsel in any such action and to participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party, or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified parties and controlling persons, which firm shall be designated
in writing by the indemnified party and shall be reasonably satisfactory to the
indemnifying party. Each indemnified party and each controlling person, as a
condition of such indemnity, shall use reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. The indemnifying
party shall not be liable for any settlement of any such action effected without
its written consent, but if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written
consent of each indemnified party, settle, compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Sections
(a), (b) or (c) hereof in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in
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such proportion as is appropriate to reflect the relative benefits received by
the Offerors on the one hand and the Underwriters on the other from the offering
of the Designated Preferred Securities, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Offerors on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The benefits received by the
Underwriters on the one hand and the Offerors on the other shall be deemed to be
allocated pro rata on the basis of the total underwriting discounts, commissions
and compensation received by the Underwriters relative to the total net proceeds
from the offering of the Designated Preferred Securities (before deducting
expenses) received by the Offerors, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault of the Offerors on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Offerors or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. Each Offeror and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in the first
sentence of this Section 7 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Designated Preferred Securities
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls an Offeror within
the meaning of the 1933 Act, each officer and trustee of an Offeror who signed
the Registration Statement and each director of an Offeror shall have the same
rights to contribution as the Offerors subject in each case to the preceding
paragraph. The obligations of the Offerors under this Section 7 shall be in
addition to any liability which the Offerors may otherwise have and the
obligations of the Underwriters under this paragraph (d) shall be in addition to
any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Offerors set forth
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling an Underwriter or by or on behalf of the Offerors, or
such directors, trustees or officers (or any person controlling an Offeror),
(ii) acceptance of any Designated Preferred Securities and payment therefor
hereunder, and (iii) any termination of this
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Agreement. A successor of any Underwriter or of an Offeror, such directors,
trustees or officers (or of any person controlling any Underwriter or an
Offeror) shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
(f) The Company agrees to indemnify the Trust against any and
all losses, claims, damages or liabilities that may become due from the Trust
under this Section 7; provided, however, that this Section 7(f) shall not
obligate the Offerors to make indemnification payments, in the aggregate, that
exceed the amount that the Offerors would otherwise be obligated to pay under
this Section 7.
8. TERMINATION. The Representative shall have the right to terminate
this Agreement at any time at or prior to the Closing Date or, with respect to
the Underwriters' obligation to purchase the Option Preferred Securities, at any
time at or prior to the Option Closing Date, without liability on the part of
the Underwriters to the Offerors, if:
(a) Either Offeror shall have failed, refused, or been unable
to perform any agreement on its part to be performed under this Agreement, or
any of the conditions referred to in Section 6 shall not have been fulfilled,
when and as required by this Agreement;
(b) The Company or any of the Subsidiaries shall have
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree which in the
judgment of the Representative materially impairs the investment
quality of the Designated Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(d) There has occurred any outbreak of hostilities or other
calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in the
Representative's reasonable judgment, impracticable to market the
Designated Preferred Securities or enforce contracts for the sale of the
Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq Stock Market's National Market shall have
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority;
(f) A banking moratorium shall have been declared by either
federal or Kansas authorities; or
(g) Any action shall have been taken by any government in
respect of its monetary affairs which, in the Representative's
reasonable judgment, has a material adverse effect on the United States
securities markets.
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The Offerors shall have the right to terminate this Agreement
at any time at or prior to the Closing Date or, with respect to the sale of the
Option Preferred Securities, at any time at or prior to the Option Closing Date,
if a Tax Event, Investment Company Event or a Capital Treatment Event, as such
terms are defined in the Registration Statement, shall have occurred.
If this Agreement shall be terminated pursuant to this Section
8, the Offerors shall not then be under any liability to the Underwriters
except as provided in Sections 5 and 7 hereof.
9. Default of Underwriters. If any Underwriter or Underwriters shall
default in its or their obligations to purchase Designated Preferred Securities
hereunder, the other Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Designated Preferred
Securities which such defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that no non-defaulting Underwriter shall be
obligated to purchase Designated Preferred Securities to the extent that the
number of such Designated Preferred Securities is more than 110% of such
Underwriter's underwriting commitment set forth in Schedule I hereto.
In the event that the non-defaulting Underwriters are not
obligated under the above paragraph to purchase the Designated Preferred
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase, the Representative may in its discretion arrange for one or more of
the Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representative does not arrange for the purchase of such
Designated Preferred Securities, then the company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representative to purchase such Designated Preferred
Securities on such terms.
In the event that the Representative or the Company do not
arrange for the purchase of any Designated Preferred Securities to which a
default relates as provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted Underwriters are
required hereby or agree to take up all or a part of the Designated Preferred
Securities of a defaulting Underwriter or Underwriters as provided in this
Section 9, (i) the Representative shall have the right to postpone the Closing
Date for a period of not more than five full business days, in order to effect
any changes that, in the opinion of counsel for the Underwriters or the Company,
may thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or agreements, and the Company agrees promptly to file
any amendments to the Registration Statement or supplements to the Prospectus
which, in its opinion, may thereby be made necessary and (ii) the respective
numbers of Designated Preferred Securities to be purchased by the remaining
Underwriters or substituted Underwriters shall be taken as the basis of their
underwriting obligation for all purposes of this agreement. Nothing herein
contained shall relieve any defaulting Underwriter of any
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liability it may have for damages occasioned by its default hereunder. Any
termination of this Agreement pursuant to this Section 9 shall be without
liability on the part of any non-defaulting Underwriter or the Company, except
for the provisions of Section 7.
10. EFFECTIVE DATE OF AGREEMENT. If the Registration Statement is not
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Representative when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of
execution of this Agreement, this Agreement shall become effective at the
earlier of 11:00 a.m. St. Louis time, on the first full business day following
the day on which this Agreement is executed, or at such earlier time as the
Representative shall release the Designated Preferred Securities for initial
public offering. The Representative shall notify the Offerors immediately after
it has taken any action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective,
it may be terminated by the Offerors, by notifying the Representative, or by the
Representative, by notifying either Offeror, except that the provisions of
Sections 5 and 7 shall at all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. The
representations, warranties, indemnities, agreements and other statements of the
Offerors and their officers and trustees set forth in or made pursuant to this
Agreement and the agreements of the Underwriters contained in Section 7 hereof
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Offerors or controlling persons of
either Offeror, or by or on behalf of the Underwriters or controlling persons of
the Underwriters or any termination or cancellation of this Agreement and shall
survive delivery of and payment for the Designated Preferred Securities.
12. NOTICES. Except as otherwise provided in this Agreement, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by registered or
certified mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to either Offeror shall be sent to:
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chief Executive Officer (with a copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq.); and notices to the Underwriters shall be sent to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
& Company, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇, Esq.). In all dealings with the Company under this Agreement, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Company, Incorporated shall act as representative of and on behalf of
the several Underwriters, and the Company shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of the Underwriters, made
or given by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated on behalf of the
Underwriters, as if the same shall have been made or given in writing by the
Underwriters.
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13. PARTIES. The Agreement herein set forth is made solely for the
benefit of the Underwriters and the Offerors and, to the extent expressed,
directors, trustees and officers of the Offerors, any person controlling the
Offerors or the Underwriters, and their respective successors and assigns. No
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser, in
its status as such purchaser, from the Underwriters of the Designated Preferred
Securities.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Missouri, without giving effect to the choice of law or conflicts of
law principles thereof.
15. FACSIMILE EXECUTION AND COUNTERPARTS. This Agreement may be
executed by facsimile and in one or more counterparts, and when a counterpart
has been executed by each party hereto all such counterparts taken together
shall constitute one and the same Agreement.
Signatures appear on the following page
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
BLUE VALLEY BAN CORP.
By:
--------------------------------
Print Name:
------------------------
Its:
-------------------------------
BVBC CAPITAL TRUST I
By:
--------------------------------
Print Name:
------------------------
Its: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of .
------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By:
-----------------------------------------------------------
Print Name:
---------------------------------------------------
Its:
----------------------------------------------------------
For itself and as Representative of the Underwriters named
in Schedule I hereto
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SCHEDULE I
UNDERWRITERS
Underwriters Number of Preferred Securities
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
40
EXHIBIT A
SUBSIDIARIES
Bank of Blue Valley
Blue Valley Building Corp.
Blue Valley Investment Corporation
BVBC Capital Trust I
