EXHIBIT 1.1
5,000,000 Shares
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
October __, 2002
X.X. XXXXXXX & SONS, INC.
RBC XXXX XXXXXXXX INC.
SANDLER X'XXXXX & PARTNERS, L.P.
As Representatives of the several Underwriters
c/o X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned, Gold Banc Corporation, Inc., a Kansas corporation (the
"Company"), hereby addresses you as the representatives (the "Representatives")
of each of the persons, firms and corporations listed on Schedule I hereto
(collectively, the "Underwriters") and hereby confirms its agreement with the
several Underwriters as follows:
1. Description of Shares. The Company proposes to issue and sell to the
Underwriters 5,000,000 shares of its common stock, par value $1.00 per share, as
set forth on Schedule I hereto (such 5,000,000 shares of Common Stock are herein
collectively referred to as the "Firm Shares"), together with each associated
preferred stock purchase right under the Rights Agreement, dated as of October
13, 1999, between the Company and American Stock Transfer and Trust, as Rights
Agent (the "Common Stock"). Solely for the purpose of covering over-allotments
in the sale of the Firm Shares, the Company further proposes to grant to the
Underwriters the right to purchase up to an additional 750,000 shares of Common
Stock (the "Option Shares"), as provided in Section 3 of this Agreement. The
Firm Shares and the Option Shares are herein sometimes referred to as the
"Shares" and are more fully described in the Prospectus hereinafter defined.
2. Purchase, Sale and Delivery of Firm Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and each such Underwriter agrees, severally and not jointly, to
purchase from the Company at a purchase price
of $___ per share, (a) the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto and (b) any additional number of Option
Shares which such Underwriter may become obligated to purchase pursuant to
Section 3 hereof. Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company against
delivery of the Firm Shares and any Option Shares to the Representatives in the
manner set forth below.
Unless you elect to take delivery of the Firm Shares by full FAST transfer
to the accounts at The Depository Trust Company designated by you, the Company
will deliver definitive certificates for the Firm Shares at the office of X.X.
Xxxxxxx & Sons, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Xxxxxxx' Office"),
or such other place as you and the Company may mutually agree upon, for the
accounts of the Underwriters against payment to the Company of the purchase
price for the Firm Shares sold by them to the several Underwriters by wire
transfer of immediately available funds payable to the order of the Company and
delivered to Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or at such
other place as may be agreed upon between you and the Company (the "Place of
Closing"), at 10:00 a.m., New York time, on ____________, 2002, or at such other
time and date not later than five full business days thereafter as you and the
Company may agree, such time and date of payment and delivery being herein
called the "Closing Date."
Any certificates for the Firm Shares so to be delivered will be made
available to you for inspection at Xxxxxxx' Office (or such other place as you
and the Company may mutually agree upon) at least one full business day prior to
the Closing Date and will be in such names and denominations as you may request
at least forty-eight hours prior to the Closing Date.
It is understood that an Underwriter, individually, may (but shall not be
obligated to) make payment on behalf of the other Underwriters whose funds shall
not have been received prior to the Closing Date for Shares to be purchased by
such Underwriter. Any such payment by an Underwriter shall not relieve the other
Underwriters of any of their obligations hereunder.
It is understood that the Underwriters propose to offer the Firm Shares to
the public upon the terms and conditions set forth in the Registration Statement
hereinafter defined.
3. Purchase, Sale and Delivery of the Option Shares. The Company hereby
grants an option to the Underwriters to purchase from it up to 750,000 Option
Shares on the same terms and conditions as the Firm Shares; provided, however,
that such option may be exercised only for the purpose of covering any
over-allotments which may be made by them in the sale of the Firm Shares. No
Option Shares shall be sold or delivered unless the Firm Shares previously have
been, or simultaneously are, sold and delivered.
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The option is exercisable on behalf of the several Underwriters by you, as
Representatives, at any time, and from time to time, before the expiration of 30
days from the date of the Prospectus (or, if such 30th day shall be a Saturday
or Sunday or a holiday, on the next day thereunder when the Nasdaq National
Market is open for trading), for the purchase of all or part of the Option
Shares covered thereby, by notice given by you to the Company in the manner
provided in Section 12 hereof, setting forth the number of Option Shares as to
which the Underwriters are exercising the option, and the date of delivery of
said Option Shares, which date shall not be more than five business days after
such notice unless otherwise agreed to by the parties. You may terminate the
option at any time, as to any unexercised portion thereof, by giving written
notice to the Company to such effect.
You, as Representatives, shall make such allocation of the Option Shares
among the Underwriters as may be required to eliminate purchases of fractional
Shares.
Unless you elect to take delivery of the Option Shares by full FAST
transfer to the accounts at The Depository Trust Company designated by you,
delivery of the Option Shares with respect to which the option shall have been
exercised shall be made to or upon your order at Xxxxxxx' Office (or at such
other place as you and the Company may mutually agree upon), against payment by
you of the per share purchase price to the Company by wire transfer of
immediately available funds. Such payment and delivery shall be made at 10:00
a.m., New York time, on the date designated in the notice given by you as above
provided for (which may be the same as the Closing Date), unless some other date
and time are agreed upon, which date and time of payment and delivery are called
the "Option Closing Date." Any certificates for the Option Shares so to be
delivered will be made available to you for inspection at Xxxxxxx' Office at
least one full business day prior to the Option Closing Date and will be in such
names and denominations as you may request at least forty-eight hours prior to
the Option Closing Date. On the Option Closing Date, the Company shall provide
the Underwriters such representations, warranties, agreements, opinions,
letters, certificates and covenants with respect to the Option Shares as are
required to be delivered on the Closing Date with respect to the Firm Shares.
4. Representations, Warranties and Agreements of the Company. (a) The
Company represents and warrants to and agrees with each Underwriter that:
(i) A registration statement (Registration No. 333-98579) on Form
S-3 with respect to the Shares, including a preliminary prospectus, and
such amendments to such registration statement as may have been required to
the date of this Agreement, has been carefully prepared by the Company
pursuant to and in conformity with the requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and the rules and regulations
thereunder (the "1933 Act Rules and Regulations") of the Securities and
Exchange Commission (the "SEC"), and has been filed with the SEC under the
1933 Act. The
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Company meets the requirements for use of Form S-3 under the 1933 Act.
Copies of such registration statement, including any amendments thereto,
each related preliminary prospectus (meeting the requirements of Rule 430
or 430A of the 1933 Act Rules and Regulations) contained therein, and the
exhibits, financial statements and schedules thereto have heretofore been
delivered by the Company to you. If such registration statement has not
become effective under the 1933 Act, a further amendment to such
registration statement, including a form of final prospectus, necessary to
permit such registration statement to become effective will be filed
promptly by the Company with the SEC. If such registration statement has
become effective under the 1933 Act, a final prospectus containing
information permitted to be omitted at the time of effectiveness by Rule
430A of the 1933 Act Rules and Regulations will be filed promptly by the
Company with the SEC in accordance with Rule 424(b) of the 1933 Act Rules
and Regulations. The term "Registration Statement" as used herein means the
registration statement as amended at the time it becomes effective under
the 1933 Act (the "Effective Date"), including financial statements and all
exhibits and all documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act and, if applicable, the information
deemed to be included by Rule 430A of the 1933 Act Rules and Regulations.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to such registration statement will be filed and
must be declared effective before the offering of Shares may commence, the
term "Registration Statement" as used herein means the registration
statement as amended by said post-effective amendment. If an abbreviated
registration statement is prepared and filed with the SEC in accordance
with Rule 462(b) under the 1933 Act (an "Abbreviated Registration
Statement"), the term "Registration Statement" as used in this Agreement
includes the Abbreviated Registration Statement. The term "Prospectus" as
used herein means (i) the prospectus as first filed with the SEC pursuant
to Rule 424(b) of the 1933 Act Rules and Regulations, or (ii) if no such
filing is required, the form of final prospectus included in the
Registration Statement at the Effective Date or (iii) if a Term Sheet or
Abbreviated Term Sheet (as such terms are defined in Rule 434(b) and
434(c), respectively, of the 1933 Act Rules and Regulations) is filed with
the SEC pursuant to Rule 424(b)(7) of the 1933 Act Rules and Regulations,
the Term Sheet or Abbreviated Term Sheet and the last Preliminary
Prospectus filed with the SEC prior to the time the Registration Statement
became effective, taken together, including, in each case, the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act. The term "Preliminary Prospectus" as used herein shall mean a
preliminary prospectus as contemplated by Rule 430 or 430A of the 1933 Act
Rules and Regulations included at any time in the Registration Statement.
For purposes of this Agreement, the words "amend," "amendment," "amended,"
"supplement" or "supplemented" with respect to the Registration Statement
or the Prospectus shall mean amendments or supplements to the Registration
Statement or the Prospectus, as the case may be, as well as documents filed
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after the date of this Agreement and prior to the completion of the
distribution of the Shares and incorporated by reference therein as
described above.
(ii) Neither the SEC nor any state or other jurisdiction or other
regulatory body has issued, and neither is, to the knowledge of the
Company, threatening to issue, any stop order under the 1933 Act or other
order suspending the effectiveness of the Registration Statement (as
amended or supplemented) or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the qualification or
registration of the Shares for offering or sale in any jurisdiction nor
instituted or, to the knowledge of the Company, threatened to institute
proceedings for any such purpose. Each Preliminary Prospectus at its date
of issue, the Registration Statement and the Prospectus and any amendments
or supplements thereto contain or will contain, as the case may be, all
statements which are required to be stated therein by, and in all material
respects conform or will conform, as the case may be, to the requirements
of, the 1933 Act and the 1933 Act Rules and Regulations. Neither the
Registration Statement nor any amendment thereto, as of the applicable
effective date, contains or will contain, as the case may be, any untrue
statement of a material fact or omits or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein, not misleading, and neither any Preliminary Prospectus, the
Prospectus nor any supplement thereto contains or will contain, as the case
may be, any untrue statement of a material fact or omits or will omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representation or warranty as to information contained in or omitted from
the Registration Statement or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conformity with, written information
furnished to the Company relating to the Underwriters by or on behalf of
the Underwriters expressly for use in the preparation thereof (as provided
in Section 13 hereof). There is no contract or document required to be
described in the Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were
filed with the SEC, complied in all material respects with the requirements
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
the rules and regulations adopted by the SEC thereunder (the "1934 Act
Rules and Regulations") and any future documents incorporated by reference
so filed, when they are filed, will comply in all material respects with
the requirements of the 1934 Act and the 1934 Act Rules and Regulations; no
such incorporated document contained or will contain any untrue statement
of a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and, when read together and with the other information in
the Prospectus, at
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the time the Registration Statement became effective and at the Closing
Date, each such incorporated document did not or will not, as the case may
be, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding obligation of
the Company enforceable against the Company in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general
principles of equity (the "Exceptions").
(iv) The Company and its subsidiaries have been duly organized and
are validly existing as corporations or as banks, trust companies, or
limited liability companies, as applicable, in each case, in good standing
under the laws of the states or other jurisdictions in which they are
organized, with full power and authority (corporate, banking, trust
company, limited liability company and other) to own, lease and operate
their properties and conduct their businesses as described in the
Prospectus and, with respect to the Company, to execute and deliver, and
perform the Company's obligations under, this Agreement; the Company and
its subsidiaries are duly qualified to do business as foreign corporations,
banks, trust companies, or as limited liability companies, as applicable,
in good standing in each state or other jurisdiction in which their
ownership or leasing of property or conduct of business legally requires
such qualification, except where the failure to be so qualified,
individually or in the aggregate, would not have a Material Adverse Effect.
The term "Material Adverse Effect" as used herein means any material
adverse effect on the condition (financial or other), net worth, business,
management, prospects, results of operations or cash flow of the Company
and its subsidiaries, taken as a whole. The Company is duly registered as a
financial holding company under the Bank Holding Company Act of 1956, as
amended (the "BHC Act"). The Company has ___ direct or indirect
subsidiaries (the "Subsidiaries"). The Subsidiaries are listed on Exhibit A
attached hereto and incorporated herein. Except for a 20% member interest
in each of Xxxxx Managers, LLC, Xxxxx Performance Holdings, LLC and Rainbow
Performance Holdings, LLC, 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 listed
on Exhibit A. Gold Bank-Kansas, Gold Bank-Oklahoma, and American
Bank-Florida, are collectively referred to as the "Banks." The deposit
accounts of each Bank are insured by the Bank Insurance Fund administered
by the Federal Deposit Insurance Corporation (the "FDIC") up to the maximum
amount provided by law; and no proceedings for the modification,
termination or revocation of any such insurance are pending or threatened.
Some of the deposit
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accounts of Gold Bank-Kansas are insured by the Savings Association
Insurance Fund administered by the FDIC up to the maximum amount provided
by law, and no proceedings for the modification, termination or revocation
of any such insurance are pending or threatened. Each of the Banks is a
member of the FDIC, and each of Gold Bank-Oklahoma and Gold Bank-Kansas are
members of the Federal Reserve. Each of the Banks and Gold Trust Company is
in compliance in all material respects with all federal and state laws,
rules, regulations, orders and similar requirements applicable to it.
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus 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. Otherwise than as set forth
in the Prospectus and, since the respective dates as of which information
is given in the Prospectus, there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole.
(vi) The issuance and sale of the Shares and the execution, delivery
and performance by the Company of this Agreement, and the consummation of
the transactions herein contemplated, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any properties or assets of the Company or any of its
subsidiaries under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the properties or assets of the Company or any
of its subsidiaries is subject, except to such extent as, individually or
in the aggregate, does not have a Material Adverse Effect, nor will such
action result in any violation of the provisions of the Company's articles
of incorporation or by-laws or any statute, rule, regulation or other law,
or any order or judgment, of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the execution, delivery and performance of
this Agreement, the issuance and sale of the Shares or the consummation of
the transactions contemplated hereby, except such as have been, or will be
prior to the Closing Date, obtained under the 1933 Act or as may be
required by the National Association of Securities Dealers, Inc. (the
"NASD") and such consents, approvals,
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authorizations, registrations or qualifications as may be required under
state securities or blue sky laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(vii) The Company has duly and validly authorized capital stock as
set forth in the Prospectus; all outstanding shares of Common Stock of the
Company and the Shares conform, or when issued will conform, to the
description thereof in the Prospectus and have been, or, when issued and
paid for in the manner described herein will be, duly authorized, validly
issued, fully paid and non-assessable; and the issuance of the Shares to be
purchased from the Company hereunder is not subject to preemptive or other
similar rights, or any restriction upon the voting or transfer thereof
pursuant to applicable law or the Company's articles of incorporation,
by-laws or governing documents or any agreement to which the Company or any
of its subsidiaries is a party or by which any of them may be bound. All
corporate action required to be taken by the Company for the authorization,
issuance and sale of the Shares has been duly and validly taken. Except as
disclosed in the Prospectus, there are no outstanding subscriptions,
rights, warrants, options, calls, convertible securities, commitments of
sale or rights related to or entitling any person to purchase or otherwise
to acquire any shares of, or any security convertible into or exchangeable
or exercisable for, the capital stock of, or other ownership interest in,
the Company. The outstanding shares of capital stock of the Company's
subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable and, except as disclosed in the Prospectus, are owned by
the Company free and clear of any mortgage, pledge, lien, encumbrance,
charge or adverse claim and are not the subject of any agreement or
understanding with any person and were not issued in violation of any
preemptive or similar rights; and there are no outstanding subscriptions,
rights, warrants, options, calls, convertible securities, commitments of
sale or instruments related to or entitling any person to purchase or
otherwise acquire any shares of, or any security convertible into or
exchangeable or exercisable for, the capital stock of, or other ownership
interest in any of the subsidiaries.
(viii) The statements set forth in the Prospectus describing the
Shares and this Agreement, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair.
(ix) Each of the Company and its subsidiaries (a) is in possession
of and is operating in compliance with all franchises, grants,
authorizations, licenses, certificates, permits, easements, consents,
orders and approvals ("Permits") from all state, federal, foreign and other
regulatory authorities, and has satisfied the requirements imposed by
regulatory bodies, administrative agencies or other governmental bodies,
agencies or officials, that are required for the Company and its
subsidiaries lawfully to own, lease and
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operate their properties and conduct their businesses as described in the
Prospectus, and (b) is conducting its business in compliance with all of
the laws, rules and regulations of each jurisdiction in which it conducts
its business, in case of each of clause (a) and (b) of this paragraph (ix),
with such exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; each of the Company and its subsidiaries has filed
all notices, reports, documents or other information ("Notices") required
to be filed under applicable laws, rules and regulations, in each case,
with such exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; and, except as otherwise specifically described in
the Prospectus, neither the Company nor any of its subsidiaries has
received any notification from any court or governmental body, authority or
agency (collectively, "Governmental Authority"), relating to the revocation
or modification of any such Permit or, to the effect that any additional
authorization, approval, order, consent, license, certificate, permit,
registration or qualification ("Approvals") from such Governmental
Authority is needed to be obtained by any of them, in any case where it
could be reasonably expected that obtaining such Approvals or the failure
to obtain such Approvals, individually or in the aggregate, would have a
Material Adverse Effect.
(x) The activities of the Company and the Subsidiaries are permitted
under applicable Federal and state banking laws and regulations. The
Company has all necessary approvals, including the approval of the Board of
Governors of the Federal Reserve System, to own the capital stock of its
subsidiaries. Neither the Company nor any of the Subsidiaries (other than
Compunet Engineering, Inc., as disclosed in the Registration Statement) is
a party or subject to any agreement or memorandum with, or directive or
other order issued by, the Board of Governors of the Federal Reserve
System, the Office of the Comptroller of Currency, the FDIC, the SEC, the
NASD or any state or other regulatory authority having jurisdiction over it
(each a "Regulator" and, collectively, the "Regulators"), which imposes any
restrictions or requirements not generally applicable to entities of the
same type as the Company and the Subsidiaries. Neither the Company nor any
Subsidiary (other than Compunet Engineering, Inc., as disclosed in the
Registration Statement) is subject to any directive from any Regulator to
make any material change in the method of conducting their respective
businesses, and no such directive is pending or threatened by such
Regulators.
(xi) Each of the Company and the Subsidiaries has properly
administered all accounts for which any of them acts as a fiduciary,
including by not limited to accounts for which any of them serves as a
trustee, agent, custodian, personal representative, guardian, conservator
or investment advisor, in accordance with the terms of the governing
documents and applicable state and Federal law and regulation, except where
the failure to be in compliance would not have a Material Adverse Effect.
None of the Company, the Subsidiaries or any of their respective directors,
officers or employees has
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committed any material breach of trust with respect to any such fiduciary
account, and the accountings for such fiduciary accounts are true and
correct in all material respects and accurately reflect the assets of such
fiduciary accounts in all material respects.
(xii) The Company and its subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns and paid all
taxes shown as due thereon; all such tax returns are complete and correct
in all material respects; all tax liabilities are adequately provided for
on the books of the Company and its subsidiaries except to such extent as
would not have a Material Adverse Effect; the Company and its subsidiaries
have made all necessary payroll tax payments and are current and
up-to-date; and the Company and its subsidiaries have no knowledge of any
tax proceeding or action pending or threatened against the Company or its
subsidiaries which, individually or in the aggregate, might have a Material
Adverse Effect.
(xiii) Except as described in the Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent licenses, trademarks, service marks and trade names
necessary to conduct the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any patents,
patent licenses, trademarks, service marks or trade names which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(xiv) The Company and its subsidiaries have good and marketable title
in fee simple to all items of real property and good and marketable title
to all personal property owned by them, in each case free and clear of all
liens, encumbrances, restrictions and defects except such as are described
in the Prospectus or do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property; and any property held under lease or sublease by the Company or
any of its subsidiaries is held under valid, subsisting and enforceable
leases or subleases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and neither the Company nor any of its
subsidiaries has any notice or knowledge of any material claim of any sort
which has been, or may be, asserted by anyone adverse to the Company's or
any of its subsidiaries' rights as lessee or sublessee under any lease or
sublease described above, or affecting or questioning the Company's or any
of its subsidiaries' rights to the continued possession of the leased or
subleased premises under any such lease or sublease in conflict with the
terms thereof.
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(xv) Except as described in the Prospectus, there is no factual
basis for any action, suit or other proceeding involving the Company or any
of its subsidiaries or any of their material assets for any failure of the
Company or any of its 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 as described in the
Prospectus, none of the property owned or leased by the Company or any of
its subsidiaries is, to the best knowledge of the Company, contaminated
with any waste or hazardous substances, and neither the Company nor any of
its 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 (S) 9601 of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. (S) 9601 et seq.
(xvi) No labor disturbance exists with the employees of the Company
or any of its subsidiaries or is imminent which, individually or in the
aggregate, would have a Material Adverse Effect. None of the employees of
the Company or any of its subsidiaries is represented by a union and, to
the best knowledge of the Company and its subsidiaries, no union organizing
activities are taking place. Neither the Company nor any of its
subsidiaries has violated any federal, state or local law or foreign law
relating to discrimination in hiring, promotion or pay of employees, nor
any applicable wage or hour laws, or the rules and regulations thereunder,
or analogous foreign laws and regulations, which might, individually or in
the aggregate, result in a Material Adverse Effect.
(xvii) The Company and its subsidiaries are in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company and its
subsidiaries would have any liability; the Company and its subsidiaries
have not incurred and do not expect to incur liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations thereunder
(the "Code"); and each "pension plan" for which the Company or any of its
subsidiaries would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects,
and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
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(xviii) The Company and its subsidiaries maintain insurance of the
types and in the amounts generally deemed adequate for its business,
including, but not limited to, directors' and officers' insurance,
insurance covering real and personal property owned or leased by the
Company and its subsidiaries against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect. Neither the Company nor any of its
subsidiaries has been refused any insurance coverage sought or applied for,
and the Company has no reason to believe that it and its subsidiaries will
not be able to renew their existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have a
Material Adverse Effect.
(xix) Neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in default or
violation with respect to its articles of incorporation or by-laws or other
similar organizational instrument. Neither the Company nor any of its
subsidiaries is, or with the giving of notice or lapse of time or both
would be, in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the properties or assets of the Company or any of its subsidiaries is
subject, or in violation of any statutes, laws, ordinances or governmental
rules or regulations or any orders or decrees to which it is subject,
including, without limitation, Section 13 of the 1934 Act, which default or
violation, individually or in the aggregate, would have a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has, at any time
during the past five years, (A) made any unlawful contributions to any
candidate for any political office, or failed fully to disclose any
contribution in violation of law, or (B) made any payment to any state,
federal or foreign government official, or other person charged with
similar public or quasi-public duty (other than payment required or
permitted by applicable law).
(xx) Other than as set forth in or incorporated by reference in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect or which
would materially and adversely affect the consummation of the transactions
contemplated hereby or which is required to be disclosed in the Prospectus;
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated.
12
(xxi) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company"
or of a "subsidiary company," as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act").
(xxii) Neither the Company nor any of its subsidiaries is and, after
giving effect to the offering and sale of the Shares, will be, an
"investment company" or an entity "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxiii) KPMG LLP, the accounting firm which has certified the
financial statements filed with or incorporated by reference in and as a
part of the Registration Statement, is an independent public accounting
firm within the meaning of the 1933 Act and the 1933 Act Rules and
Regulations and such accountants are not in violation of the auditor
independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the
"Xxxxxxxx-Xxxxx Act"). The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that: (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4) the
recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
The consolidated financial statements of the Company, including the notes
thereto, filed with (or incorporated by reference) and as a part of the
Registration Statement or Prospectus, are accurate in all material respects
and present fairly the financial condition of the Company and its
subsidiaries as of the respective dates thereof and the consolidated
results of operations and changes in financial position and consolidated
statements of cash flow for the respective periods covered thereby, all in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved except as otherwise
disclosed therein. All adjustments necessary for a fair presentation of
results for such periods have been made. The selected financial data
included or incorporated by reference in the Registration Statement and
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements. Any operating or other statistical data included or
incorporated by reference in the Registration Statement and Prospectus
comply in all material respects with the 1933 Act and the 1933 Act Rules
and Regulations and present fairly the information shown therein.
13
(xxiv) No holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of the
Company because of the filing of the Registration Statement or the
consummation of the transactions contemplated hereby and no person has the
right to require registration under the 1933 Act of any shares of Common
Stock or other securities of the Company. No person has the right,
contractual or otherwise, to cause the Company to permit such person to
underwrite the sale of any of the Shares. Except for this Agreement, there
are no contracts, agreements or understandings between the Company or any
of its subsidiaries and any person that would give rise to a valid claim
against the Company, its subsidiaries or any Underwriter for a brokerage
commission, finder's fee or like payment in connection with the issuance,
purchase and sale of the Shares.
(xxv) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date or the Option Closing Date, if any, and (ii)
completion of the distribution of the Shares, will not distribute any
offering material in connection with the offering and sale of the Shares
other than the Registration Statement, the Preliminary Prospectus or the
Prospectus.
(xxvi) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of the
Company's Common Stock, and the Company is not aware of any such action
taken or to be taken by affiliates of the Company.
(xxvii) Gold Capital Management, Inc. is a member of the NASD and the
Securities Investor Protection Corporation and is duly registered as a
broker-dealer with the SEC and other Regulators and is in compliance in all
material respects with all applicable laws, rules, regulations, orders and
similar requirements in connection therewith.
(xxviii) Gold Capital Management, Inc. is duly registered as an
investment adviser under the Investment Advisers Act of 1940, as amended
(the "Investment Advisers Act") and is in compliance in all material
respects with all applicable laws, rules, regulations, orders and similar
requirements in connection therewith. Except for Gold Capital Management,
Inc., none of the Company or any of its subsidiaries is required to
register as an investment adviser under the Investment Advisers Act or
applicable state law.
(xxix) Each agreement under which the Company and its subsidiaries,
including without limitation, Gold Capital Management, Inc., provides
investment advisory service to any person that is subject to Section 15 of
the 1940 Act has been duly approved at all times in compliance in all
material respects with Section 15 of the 1940 Act and
14
applicable laws, rules, regulations, orders and similar requirements in
connection therewith. Each such investment advisory contract has been
performed in accordance with the 1940 Act and, except where the
failure, either individually or in the aggregate would not have a
Material Adverse Effect, any other applicable laws, rules, regulations,
orders and similar requirements in connection therewith.
(xxx) Neither the Company nor any of its subsidiaries or their
respective affiliates does business with the government of Cuba or with
any person located in Cuba.
(xxxi) Neither the Company nor any of its subsidiaries has
violated, or received any notice of violation with respect to any
federal or state law precluding the denial of credit due to the
neighborhood in which a property is situated, the violation of any of
which would have a Material Adverse Effect.
(xxxii) The Company is in compliance with applicable provisions
of the Xxxxxxxx-Xxxxx Act that are effective and is actively taking
steps to ensure that it will be in compliance with other applicable
provisions of the Xxxxxxxx-Xxxxx Act upon the effectiveness of such
provisions.
(b) Any certificate signed by any officer of the Company and delivered
to you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
5. Additional Covenants. The Company covenants and agrees with the
several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any
amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as
applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules
and Regulations.
(b) The Company will deliver to each of the Representatives, and to
counsel for the Underwriters (i) one signed copy of the Registration Statement
as originally filed, including copies of exhibits thereto (other than any
exhibits incorporated by reference therein), of any amendments and supplements
to the Registration Statement (including all documents incorporated by reference
therein) and (ii) a signed copy of each consent and certificate included or
incorporated by reference in, or filed as an exhibit to, the Registration
Statement as so amended or supplemented; the Company will deliver to the
Underwriters through the Representatives as soon as practicable after the date
of this Agreement as many copies of the Prospectus (including all documents
incorporated by reference therein) as the Representatives may reasonably request
for the purposes contemplated by the 1933 Act; if the Registration Statement is
not effective under the 1933 Act, the Company will use its best efforts to cause
the
15
Registration Statement to become effective as promptly as possible, and it
will notify you, promptly after it shall receive notice thereof, of the time
when the Registration Statement has become effective; the Company will promptly
advise the Representatives of any request of the SEC for amendment of the
Registration Statement or for supplement to the Prospectus or for any additional
information, and of the issuance by the SEC or any state or other jurisdiction
or other regulatory body of any stop order under the 1933 Act or other order
suspending the effectiveness of the Registration Statement (as amended or
supplemented) or preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending the qualification or registration of the Shares
for offering or sale in any jurisdiction, and of the institution or threat of
any proceedings therefor, of which the Company shall have received notice or
otherwise have knowledge prior to the completion of the distribution of the
Shares; and the Company will use its best efforts to prevent the issuance of any
such stop order or other order and, if issued, to secure the prompt removal
thereof.
(c) The Company will not file any amendment or supplement to the
Registration Statement, the Prospectus (or any other prospectus relating to the
Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that
differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not
file any document under the 1934 Act before the termination of the offering of
the Shares by the Underwriters if the document would be deemed to be
incorporated by reference into the Registration Statement or the Prospectus, of
which the Underwriters shall not previously have been advised and furnished with
a copy or to which the Underwriters shall have reasonably objected or which is
not in compliance with the 1933 Act Rules and Regulations; and the Company will
promptly notify you after it shall have received notice thereof of the time when
any amendment to the Registration Statement becomes effective or when any
supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Shares
is required to be delivered under the 1933 Act by any Underwriter or dealer, the
Company will comply, at its own expense, with all requirements imposed by the
1933 Act, as now and hereafter amended, and the 1933 Act Rules and Regulations
from time to time in force, so far as necessary to permit the continuance of
sales of or dealing in the Shares during such period in accordance with the
provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the
Shares is required to be delivered under the 1933 Act by any Underwriter or
dealer, (i) any event relating to or affecting the Company or of which the
Company shall be advised in writing by the Representatives shall occur as a
result of which, in the opinion of the Company or the Representatives, the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading
16
or (ii) it shall be necessary to amend or supplement the Registration Statement
or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and
Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company
will forthwith at its expense prepare and file with the SEC, and furnish to the
Representatives a reasonable number of copies of, such amendment or supplement
or other filing that will correct such statement or omission or effect such
compliance.
(f) During the period when a prospectus relating to any of the Shares
is required to be delivered under the 1933 Act by any Underwriter or dealer, the
Company will furnish such proper information as may be lawfully required and
otherwise cooperate in qualifying the Shares for offer and sale under the
securities or blue sky laws of such jurisdictions as the Representatives may
reasonably designate and will file and make in each year such statements or
reports as are or may be reasonably required by the laws of such jurisdictions;
provided, however, that the Company shall not be required to qualify as a
foreign corporation or shall be required to qualify as a dealer in securities or
to file a general consent to service of process under the laws of any
jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of
the 1933 Act Rules and Regulations, the Company will make generally available to
its security holders and to holders of the Shares, as soon as practicable, an
earning statement (which need not be audited) in reasonable detail covering the
12 months beginning not later than the first day of the month next succeeding
the month in which occurred the effective date (within the meaning of Rule 158)
of the Registration Statement.
(h) During the period when a prospectus relating to any of the Shares
is required to be delivered under the 1933 Act by any Underwriter or dealer, the
Company will file promptly all documents required to be filed with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will
furnish to its security holders annual reports containing financial statements
audited by independent public accountants and quarterly reports containing
financial statements and financial information which may be unaudited. The
Company will, for a period of five years from the Closing Date, deliver to the
Underwriters at their principal executive offices a reasonable number of copies
of annual reports, quarterly reports, current reports and copies of all other
documents, reports and information furnished by the Company to its shareholders
or filed with any securities exchange or market pursuant to the requirements of
such exchange or market or furnished to or filed with the SEC pursuant to the
1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules
and Regulations. The Company will deliver to the Underwriters similar reports
with respect to any significant subsidiaries, as that term is defined in the
1933 Act Rules and Regulations, which are not consolidated in the Company's
financial statements. Any report, document or other information required to be
furnished to the Underwriters under this paragraph (h) shall be so furnished as
soon as practicable after such report, document or information becomes
available; provided that the
17
Underwriters consent to electronic delivery of conformed copies of any such
documents, and the Company or such significant subsidiary may so furnish such
documents as are available electronically by means of electronic delivery to the
Underwriters.
(i) During the period beginning from the date of this Agreement and
continuing to and including the earlier of (i) the termination of trading
restrictions on the Shares, as determined by the Underwriters, and (ii) 30 days
after the Closing Date, the Company will not, without the prior written consent
of the Representatives, offer for sale, sell or enter into any agreement to
sell, or otherwise dispose of, any equity securities of the Company, except for
the Shares and sales of shares of Common Stock to the employees of the Company
or its subsidiaries pursuant to the exercise of options outstanding on the date
hereof under the Company's Incentive Stock Option Plan 1996 and 1999 Stock
Option and Equity Incentive Plan.
(j) The Company will apply the proceeds from the sale of the Shares as
set forth in the description under "Use of Proceeds" in the Prospectus, which
description complies in all respects with the requirements of Item 504 of
Regulation S-K.
(k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the SEC in
connection with the registration of the Shares under the 1933 Act or relating to
any documents incorporated by reference into the Registration Statement or the
Prospectus.
(l) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will furnish to you, as soon as they have been prepared,
copies of any unaudited interim consolidated financial statements of the Company
and its subsidiaries for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statement and the Prospectus.
(m) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will not issue any press releases or other communications
directly or indirectly and will hold no press conferences with respect to the
Company or any of its subsidiaries, the financial condition, results of
operations, business, properties, assets or liabilities of the Company or any of
its subsidiaries, or the offering of the Shares, without your prior written
consent.
(n) The Company will use its best efforts to obtain approval for, and
maintain the quotation of the Shares in, the Nasdaq National Market.
(o) The Company will cause its directors and officers and each holder
of 5% of shares of Common Stock or securities convertible into or exercisable or
exchangeable for, shares of Common Stock, to furnish to you, on or prior to the
date of this Agreement, a letter or letters, in
18
form and substance satisfactory to counsel for the Underwriters, pursuant to
which each such person shall agree not to, and the Company will not, directly or
indirectly, offer for sale, contract to sell, sell, distribute, grant any
option, right or warrant to purchase, pledge, hypothecate or otherwise dispose
of any shares of Common Stock, any securities convertible into, or exercisable
or exchangeable for, Common Stock or any other rights to acquire such shares,
for a period of 180 days from the Effective Date, without the prior written
consent of X.X. Xxxxxxx & Sons, Inc., except: (1) to the extent as may be set
forth in any such letter or letters, (2) for the Shares sold hereunder and (3)
for sales of shares of Common Stock to the Company's employees pursuant to the
exercise of options outstanding on the date hereof and such additional options
as may be issued during such period consistently with past practice under the
Company's Incentive Stock Option Plan 1996 and 1999 Stock Option and Equity
Incentive Plan.
(p) The Company and its subsidiaries will maintain and keep accurate
books and records reflecting their assets and maintain internal accounting
controls which provide reasonable assurance that (1) transactions are executed
in accordance with management's authorization, (2) transactions are recorded as
necessary to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the Company and its
subsidiaries, (3) access to the assets of the Company and its subsidiaries is
permitted only in accordance with management's authorization, and (4) the
recorded accounts of the assets of the Company and its subsidiaries are compared
with existing assets at reasonable intervals.
(q) The Company and its subsidiaries will maintain such controls and
other procedures including without limitation those required by Sections 302 and
906 of the Xxxxxxxx-Xxxxx Act of 2002, and the applicable regulations thereunder
that are designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods specified in the
Commission's rules and forms, including without limitation, controls and
procedures designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act is
accumulated and communicated to the Company's management, including its Chief
Executive Officer or officers and Principal Financial Officer or officers, or
persons performing similar functions, as appropriate to allow timely decisions
regarding required disclosure, to ensure that material information relating to
Company, including its subsidiaries, is made known to them by others within
those entities, particularly during the period in which such periodic reports
are being prepared.
(r) If the Company elects to rely on Rule 462(b) under the 1933 Act,
the Company shall both file an Abbreviated Registration Statement with the SEC
in compliance with Rule 462(b) and pay the applicable fees in accordance with
Rule 111 of the 1933 Act by the earlier of
19
(i) 10:00 p.m., New York time, on the date of this Agreement, and (ii) the time
that confirmations are given or sent, as specified by Rule 462(b)(2).
(s) The Company and its subsidiaries will comply with all effective
applicable provisions of the Xxxxxxxx-Xxxxx Act.
6. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase and pay for the Shares, as provided herein,
shall be subject to the accuracy, as of the date hereof and as of the Closing
Date (and, if applicable, the Option Closing Date), of the representations and
warranties of the Company contained herein, to the performance by the Company of
its covenants and obligations hereunder, and to the following additional
conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective not later than 1:00 p.m., New York time, on
the date hereof, or, with your consent, at a later date and time, not later than
_____ p.m., New York time, on the first business day following the date hereof,
or at such later date and time as may be approved by the Representatives; if the
Company has elected to rely on Rule 462(b) under the 1933 Act, the Abbreviated
Registration Statement shall have become effective not later than the earlier of
(x) 10:00 p.m. New York time, on the date hereof, or (y) at such later date and
time as may be approved by the Representatives. All filings required by Rule 424
and Rule 430A of the 1933 Act Rules and Regulations shall have been made. No
stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceeding for that
purpose shall have been initiated or, to the knowledge of the Company or any
Underwriter, threatened or contemplated by the SEC, and any request of the SEC
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the reasonable
satisfaction of the Underwriters.
(b) No Underwriter shall have advised the Company on or prior to the
Closing Date (and, if applicable, the Option Closing Date), that the
Registration Statement or Prospectus or any amendment or supplement thereto
contains an untrue statement of fact which, in the opinion of counsel to the
Underwriters, is material, or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) On the Closing Date (and, if applicable, the Option Closing Date),
you shall have received the opinion of Xxxxxxx Xxxxxxxx Xxxxxx LLP, counsel for
the Company, addressed to you and dated the Closing Date (and, if applicable,
the Option Closing Date), to the effect that:
(i) The Registration Statement and all post-effective amendments
thereto and the Abbreviated Registration Statement, if any, have become
effective under the 1933
20
Act; any required filing of the Prospectus or any supplement thereto
pursuant to Rule 424(b) or otherwise has been made in the manner and
within the time period required thereby; and, to the knowledge of such
counsel, no stop or other order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or threatened under the
1933 Act.
(ii) The Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective or
issue date, appear on their face to comply as to form, in all material
respects, to the requirements of Form S-3 under the 1933 Act and the
applicable 1933 Act Rules and Regulations (except that such counsel
need express no opinion as to the financial statements or other
financial or statistical data); the conditions for use of Form S-3 have
been satisfied; and, as of the date they were filed with the SEC, the
documents incorporated by reference in the Prospectus appear on their
face to comply as to form, in all material respects, with the
requirements of the 1934 Act and the applicable 1934 Act Rules and
Regulations (except that such counsel need express no opinion as to the
financial statements or other financial or statistical data).
(iii) The descriptions in the Registration Statement and
Prospectus of published statutes, rules and regulations, legal or
governmental proceedings, contracts and other documents are accurate
summaries, in all material respects, and fairly present the information
disclosed therein.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as enforceability may be limited by the
Exceptions and except to the extent the enforceability of the
indemnification and contribution provisions of Section 7 of the
Agreement may be limited by public policy considerations as expressed
in the 1933 Act as construed by courts of competent jurisdiction.
(v) The Company is duly registered as a financial holding
company under the BHC Act, and the Company and its subsidiaries listed
on a schedule attached to such opinion (the "Scheduled Subsidiaries")
are validly existing as corporations, banks, trust companies or limited
liability companies, as applicable, and are in good standing under the
laws of the states or other jurisdictions in which they are organized,
with full corporate, banking, trust company, limited liability company
and other organizational (as applicable) power and authority to own,
lease and operate their properties and conduct their businesses as
described in the Prospectus and, with respect to the Company, to
execute and deliver, and perform the Company's obligations under, this
Agreement; the
21
Company and its subsidiaries are duly qualified to do business as foreign
corporations in good standing in the states or other jurisdictions set
forth on a schedule attached to such opinion.
(vi) To such counsel's knowledge, except for Gold Reinsurance
Company, Ltd., a Turks and Caicos Islands corporation, the Scheduled
Subsidiaries are the only subsidiaries, direct or indirect, of the Company.
Based solely on such counsel's review of the stock transfer records of the
subsidiaries, the Company owns, directly or indirectly through other
subsidiaries, the percentage indicated on Exhibit A to this Agreement of
the outstanding shares of capital stock or other securities evidencing
equity ownership of such subsidiaries, and all such securities are fully
paid and non-assessable (except to the extent such stock or other
securities may be deemed assessable under Kan Stat. Xxx. (S)9-906 or Okla.
Stat. tit. 6 (S) 220) and, to the knowledge of such counsel, except as
disclosed in the documents incorporated by reference into the Prospectus,
are owned by the Company free and clear of any mortgage, pledge, lien,
encumbrance, charge or adverse claim and are not the subject of any
agreement or understanding with any person, and were not issued in
violation of any preemptive or similar rights; and, to the knowledge of
such counsel, except as disclosed in the Prospectus, there are no
outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale, or instruments related to or entitling any
person to purchase or otherwise acquire any shares of, or any security
convertible into or exercisable or exchangeable for, any such shares of
capital stock or other ownership interest of any of such subsidiaries.
(vii) The issuance and sale of the Shares and the execution, delivery
and performance by the Company of this Agreement, and the consummation of
the transactions herein contemplated, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any properties or assets of the Company or any of its
subsidiaries under, any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the properties or
assets of the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the Company's articles
of incorporation or bylaws or any statute, rule, regulation or other law,
or any order or judgment known to such counsel, of any court or
Governmental Authority having jurisdiction over the Company or any of its
subsidiaries or over the properties of either of them.
(viii) Except as disclosed in the Registration Statement, the Company
is not, nor with the giving of notice or lapse of time or both would be, in
default in the performance
22
or observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument known to such counsel, to which the
Company is a party or by which the Company is bound or to which any of its
properties or assets is subject; to such counsel's knowledge, the Company
is not in violation of any published statutes, rules or regulations or any
orders or decrees to which it is subject, including, without limitation,
Section 13 of the 1934 Act; to such counsel's knowledge, except as
disclosed in the Prospectus, neither the Company nor any of its
subsidiaries has failed to obtain any other license, permit, franchise,
easement, consent, or other governmental authorization necessary to the
ownership, leasing and operation of its properties or to the conduct of its
business.
(ix) No consent, approval, authorization, order, registration or
qualification of or with any federal or Kansas court or Governmental
Authority, or to the knowledge of such counsel, any court or Governmental
Authority, is required in connection with the execution, delivery and
performance of this Agreement, and the issuance and sale of the Shares or
the consummation of the transactions contemplated hereby, except such as
may be required under the 1933 Act or the 1933 Act Rules and Regulations
and have been obtained, or as may be required by the NASD or under state
securities or blue sky laws in connection with the purchase and
distribution of the Shares by the Underwriters (as to which such counsel
need not opine). The Company has filed all Notices pursuant to, and has
obtained all Approvals required to be obtained under, and has otherwise
complied with all requirements of, all federal and Kansas statutes, rules
and regulations in connection with the issuance and sale of the Shares.
(x) To the knowledge of such counsel and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject that, if
determined adversely to the Company or any of its subsidiaries, would
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect; and, to the knowledge of such counsel, no such
proceedings are threatened by any Governmental Authority or other entity.
(xi) The Company has duly and validly authorized capital stock as set
forth under the caption "Capitalization" in the Prospectus; all outstanding
shares of Common Stock of the Company and the Shares conform, or when
issued will conform, as to legal matters, in all material respects, to the
description thereof in the Prospectus and have been duly authorized,
validly issued, fully paid and non-assessable; and the Shares to be sold by
the Company have been duly authorized and, when delivered and paid for in
accordance with this Agreement, will be validly issued, fully paid and
non-assessable. All corporate action required to be taken by the Company
for the authorization, issue and
23
sale of the Shares has been duly and validly taken. The Shares are duly
designated for inclusion, subject to official notice of issuance and
evidence of satisfactory distribution, in the Nasdaq National Market. The
issuance of the Shares to be purchased from the Company hereunder is not
subject to preemptive or other similar rights, or any restriction upon the
voting or transfer thereof pursuant to applicable law or the articles of
incorporation, by-laws or governing documents of the Company or any
agreement known to such counsel to which the Company or any of its
subsidiaries is a party or by which any of them may be bound; and, to such
counsel's knowledge, except as described in the Prospectus, there are no
outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or instruments related to or entitling any
person to purchase or otherwise acquire any shares of, or any security
convertible into or exercisable or exchangeable for, the capital stock of,
or other ownership interest in, the Company.
(xii) To the knowledge of such counsel, except as disclosed in the
Prospectus, the Company and each of its subsidiaries hold (i) all licenses,
certificates, permits and approvals from all state and federal Governmental
Authorities, and (ii) have satisfied in all material respects the
requirements imposed by Governmental Authorities, in each case, that are
required for the Company and its subsidiaries lawfully to own, lease and
operate its properties and conduct its business as described in the
Prospectus.
(xiii) The statements made in the Prospectus under the captions "Price
of Common Stock and Dividends," Item 15 of Part II of the Registration
Statement, and included or incorporated by reference in the Company's
Annual Report on Form 10-K for the year ended December 31, 2001 under Part
I, Item I, "Business" and Item 3, "Legal Proceedings," and Part III, Item
11, "Executive Compensation," Item 12 "Security Ownership of Certain
Beneficial Owners and Management" and Item 13, "Certain Relationships and
Related Transactions," and Item I, "Legal Proceedings," in the Company's
Quarterly Report on Form 10-Q for the quarterly periods ended March 31 and
June 30, 2002, to the extent that they constitute summaries of documents
referred to therein or matters of law or legal conclusions, have been
reviewed by such counsel and are accurate summaries, in all material
respects, and fairly present the information disclosed therein.
(xiv) To the knowledge of such counsel, (A) there are no contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which are not described or filed as required; and
(B) there are no statutes, rules or regulations required to be described in
the Registration Statement or Prospectus which are not described as
required.
24
(xv) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company"
or of a "subsidiary company," as such terms are defined in the 0000 Xxx.
(xvi) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
1940 Act.
(xvii) Except for Gold Capital Management, Inc., none of the Company
or any of its subsidiaries is required to register as an investment adviser
under the Investment Advisers Act or, to the knowledge of such counsel,
under the securities laws of the states of Florida, Kansas, Missouri or
Oklahoma.
(xviii) To such counsel's knowledge, all the shares of capital stock
of the Company issued subsequent to June 30, 1999 were issued and sold in
compliance with all applicable federal and state securities laws.
(xix) To the knowledge of such counsel, and except as disclosed in
the Prospectus, no holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of the
Company because of the filing of the Registration Statement or the
consummation of the transactions contemplated hereby and, except as
disclosed in the Prospectus, no person has the right to require
registration under the 1933 Act of any shares of Common Stock or other
securities of the Company.
Such counsel shall confirm that during the preparation of the Registration
Statement and Prospectus, such counsel participated in conferences with the
Representatives and their counsel and with officers and representatives of the
Company and its independent accountants, at which conferences the contents of
the Registration Statement and the Prospectus (including all documents filed
under the 1934 Act and deemed incorporated by reference therein) were discussed,
reviewed and revised. On the basis of the information which was developed in the
course thereof, considered in light of such counsel's understanding of
applicable law and the experience gained by such counsel through their practice
thereunder, without such counsel assuming responsibility for, or independently
verifying, the accuracy and completeness of such statements, except to the
extent expressly provided above in the applicable opinion paragraph preceding
this paragraph, such counsel shall confirm that nothing came to their attention
that would lead them to believe that either the Registration Statement
(including any document filed under the 1934 Act and deemed incorporated by
reference therein), as of the Effective Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or the Prospectus or any amendment
or supplement
25
thereto (including any document filed under the 1934 Act and deemed incorporated
by reference therein) as of its respective issue date and as of the Closing
Date, or, if applicable, the Option Closing Date, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(except for in each of the above cases the financial statements or other
financial or statistical data as to which such counsel need express no opinion).
In rendering the foregoing opinion, such counsel may rely as to matters of
fact, upon certificates and written statements of the executive officers of, and
accountants for, the Company. In rendering the foregoing opinions, all
statements and opinions given "to the knowledge of such counsel" (or similar
phrases) shall refer to the actual present knowledge of the attorneys of such
firm who have devoted substantive attention to the offering and related matters
(and who shall be named in such opinion), and not to the knowledge of the firm
or its partners or employees generally, and all such statements and opinions
given to the knowledge of such counsel shall be supported, as to matters of
fact, by officer's certificates obtained from the Company or its subsidiaries,
as appropriate, executed copies of which shall be delivered to you on the
Closing Date.
(d) You shall have received on the Closing Date (and, if applicable, the
Option Closing Date), from Xxxxx Xxxx LLP, counsel to the Underwriters, such
opinion or opinions, dated the Closing Date (and, if applicable, the Option
Closing Date) with respect to such matters as you may reasonably require; and
the Company shall have furnished to such counsel such documents as they
reasonably request for the purposes of enabling them to review or pass on the
matters referred to in this Section 6 and in order to evidence the accuracy,
completeness and satisfaction of the representations, warranties and conditions
herein contained.
(e) You shall have received at or prior to the Closing Date from Xxxxx Xxxx
LLP a memorandum or memoranda, in form and substance satisfactory to you, with
respect to the qualification for offering and sale by the Underwriters of the
Shares under state securities or Blue Sky laws of such jurisdictions as the
Underwriters may have designated to the Company.
(f) On the business day immediately preceding the date of this Agreement
and on the Closing Date (and, if applicable, the Option Closing Date), you shall
have received from KPMG LLP, a letter or letters, dated the date of this
Agreement and the Closing Date (and, if applicable, the Option Closing Date),
respectively, in form and substance satisfactory to you, confirming that they
are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the published Rules and Regulations, and stating to
the effect set forth in Schedule II hereto.
26
(g) Except as contemplated in the Prospectus, (i) neither the Company nor
any of its subsidiaries shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus 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, order or decree; and (ii) subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its subsidiaries
shall have incurred any liability or obligation, direct or contingent, or
entered into any transactions, and there shall not have been any change in the
capital stock or short-term or long-term debt of the Company and its
subsidiaries or any change, or any development involving or which might
reasonably be expected to involve a prospective change in the condition
(financial or other), net worth, business, affairs, management, prospects,
results of operations or cash flow of the Company or its subsidiaries, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material or adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
on such Closing Date (and, if applicable, the Option Closing Date) on the terms
and in the manner contemplated in the Prospectus.
(h) There shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the Nasdaq National Market or the
establishing on such exchanges or market by the SEC or by such exchanges or
markets of minimum or maximum prices which are not in force and effect on the
date hereof; (ii) a suspension or material limitation in trading in the
Company's securities in the Nasdaq National Market or the establishing on such
market by the SEC or by such market of minimum or maximum prices which are not
in force and effect on the date hereof; (iii) a general moratorium on commercial
banking activities declared by either federal or any state authorities; (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, which in your
judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares in the manner contemplated in the
Prospectus; or (v) any calamity or crisis, change in national, international or
world affairs, act of God, change in the international or domestic markets, or
change in the existing financial, political or economic conditions in the United
States or elsewhere, which in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares in
the manner contemplated in the Prospectus.
(i) You shall have received certificates, dated the Closing Date (and, if
applicable, the Option Closing Date) and signed by the Chief Executive Officer
and the Chief Financial Officer of the Company, in their capacities as such,
stating that:
(i) the condition set forth in Section 6(a) has been fully satisfied;
27
(ii) they have carefully examined the Registration Statement and the
Prospectus as amended or supplemented and all documents incorporated by
reference therein 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 or any documents incorporated by
reference therein as of their respective effective, issue or filing dates,
contained, and the Prospectus as amended or supplemented and all documents
incorporated by reference therein and when read together with the documents
incorporated by reference therein, at such 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 light of the circumstances under which they were made, not
misleading;
(iii) since the Effective Date, there has occurred no event required
to be set forth in an amendment or supplement to the Registration Statement
or the Prospectus which has not been so set forth and there has been no
document required to be filed under the 1934 Act and the 1934 Act Rules and
Regulations that upon such filing would be deemed to be incorporated by
reference into the Prospectus that has not been so filed;
(iv) all representations and warranties made herein by the Company
are true and correct at such Closing Date, with the same effect as if made
on and as of such Closing Date, and all agreements herein to be performed
or complied with by the Company on or prior to such Closing Date have been
duly performed and complied with by the Company;
(v) neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus 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;
(vi) except as disclosed in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, other than in the ordinary course of business, or entered into
any transactions not in the ordinary course of business, which in either
case are material to the Company or such subsidiary; and there has not been
any change in the capital stock or material increase in the short-term debt
or long-term debt of the Company or any of its subsidiaries or any Material
Adverse Effect or any development involving or which may reasonably be
expected to involve a prospective Material Adverse Effect; and there has
28
been no dividend or distribution of any kind, paid or made by the Company
on any class of its capital stock;
(vii) there has not been any change or decrease specified in
paragraph 6 of the letter or letters delivered to the Underwriters referred
to in Section 6(f) above, except those changes and decreases that are
disclosed therein; and
(viii) covering such other matters as you may reasonably request.
(j) The Company shall not have failed, refused, or been unable, at or
prior to the Closing Date (and, if applicable, the Option Closing Date) to
perform any agreement on its part to be performed or any of the conditions
herein contained and required to be performed or satisfied by it at or prior to
such Closing Date.
(k) The Company shall have furnished to you at the Closing Date (and, if
applicable, the Option Closing Date) such further information, opinions,
certificates, letters and documents as you may have reasonably requested.
(l) The Shares shall have been approved for trading upon official notice
of issuance in the Nasdaq National Market.
(m) You shall have received duly and validly executed letter agreements
referred to in Section 5(o) hereof.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and to Xxxxx Xxxx LLP, counsel for the several
Underwriters. The Company will furnish you with such signed and conformed copies
of such opinions, certificates, letters and documents as you may request.
If any of the conditions specified above in this Section 6 shall not have
been satisfied at or prior to the Closing Date (and, if applicable, the Option
Closing Date) or waived by you in writing, this Agreement may be terminated by
you on notice to the Company.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter for and against any losses, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the 1933 Act or otherwise, insofar as such losses, damages or liabilities
(or actions or claims in respect thereof) arise out of or are based upon (i) an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus or any other
prospectus relating to the Shares, or any amendment or supplement thereto, or in
any blue sky
29
application or other document executed by the Company or based on any
information furnished in writing by the Company, filed in any state or other
jurisdiction in order to qualify any or all of the Shares under the securities
laws thereof (the "Blue Sky Application"), or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses incurred by such Underwriter in
connection with investigating, preparing, pursuing or defending against or
appearing as a third party witness in connection with any such loss, damage,
liability or action or claim, including, without limitation, any investigation
or proceeding by any governmental agency or body, commenced or threatened,
including the reasonable fees and expenses of counsel to the indemnified party,
as such expenses are incurred (including such losses, damages, liabilities or
expenses to the extent of the aggregate amount paid in settlement of any such
action or claim, provided that (subject to Section 7(d) hereof) any such
settlement is effected with the written consent of the Company); provided,
however, that the Company shall not be liable in any such case to the extent,
but only to the extent, that any such loss, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus or any other prospectus relating to the Shares, or any such
amendment or supplement, in reliance upon and in conformity with written
information relating to the Underwriter furnished to the Company by you or by
any Underwriter through you, expressly for use in the preparation thereof (as
provided in Section 13 hereof).
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company for and against any losses, damages or liabilities to which
the Company may become subject, under the 1933 Act or otherwise, insofar as such
losses, damages or liabilities (or actions or claims in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Shares, or any
amendment or supplement thereto, or any Blue Sky Application, or arise out of
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, the Registration Statement, the Prospectus or any
other prospectus relating to the Shares, or any such amendment or supplement, or
any Blue Sky Application, in reliance upon and in conformity with written
information relating to the Underwriter furnished to the Company by you or by
any Underwriter through you, expressly for use in the preparation thereof (as
provided in Section 13 hereof), and will reimburse the Company for any legal or
other expenses incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred (including such
losses, damages, liabilities or expenses to the extent of the aggregate amount
paid in settlement of any such action or claim,
30
provided that (subject to Section 7(d) hereof) any such settlement is effected
with the written consent of the Underwriters).
(c) Promptly after receipt by an indemnified party under Section 7(a) or
7(b) hereof of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under Section 7(a) or 7(b) hereof, notify each such indemnifying party in
writing of the commencement thereof, but the failure so to notify such
indemnifying party shall not relieve such indemnifying party from any liability
except to the extent that it has been prejudiced in any material respect by such
failure or from any liability that it may have to any such indemnified party
otherwise than under Section 7(a) or 7(b) hereof. In case any such action shall
be brought against any such indemnified party and it shall notify each
indemnifying party of the commencement thereof, each such indemnifying party
shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party under Section 7(a) or 7(b) hereof
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of such
indemnified party, be counsel to such indemnifying party), and, after notice
from such indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party under Section 7(a) or 7(b) hereof for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. The indemnified party shall have the right to employ its
own counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the employment of counsel
by such indemnified party at the expense of the indemnifying party has been
authorized by the indemnifying party, (ii) the indemnified party shall have been
advised by such counsel that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense, or
certain aspects of the defense, of such action (in which case the indemnifying
party shall not have the right to direct the defense of such action with respect
to those matters or aspects of the defense on which a conflict exists or may
exist on behalf of the indemnified party) or (iii) the indemnifying party shall
not in fact have employed counsel reasonably satisfactory to such indemnified
party to assume the defense of such action, in any of which events such fees and
expenses to the extent applicable shall be borne, and shall be paid as incurred,
by the indemnifying party. No such indemnifying party shall, without the written
consent of such indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not such indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (A) includes an unconditional release of such indemnified party from
all liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any such indemnified party. If at any time
31
such indemnified party shall have requested such indemnifying party under
Section 7(a) or 7(b) hereof to reimburse such indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 7(a) or 7(b) hereof
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of such request for
reimbursement, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request for reimbursement prior to the
date of such settlement. In no event shall such indemnifying parties be liable
for the fees and expenses of more than one counsel, including any local counsel,
for all such indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
(d) If the indemnification provided for in this Section 7 is unavailable
to or insufficient to indemnify or hold harmless an indemnified party under
Section 7(a) or 7(b) hereof in respect of any losses, damages or liabilities (or
actions or claims in respect thereof) referred to therein, then each
indemnifying party under Section 7(a) or 7(b) hereof shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
damages or liabilities (or actions or claims in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 7(c) hereof and such
indemnifying party was prejudiced in a material respect by such failure, then
each such indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault, as applicable, of the
Company and the Underwriters in connection with the statements or omissions that
resulted in such losses, damages or liabilities (or actions or claims in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Underwriters shall be deemed to be in
the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault of
the Company and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7(d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to above in this Section
7(d).
32
The amount paid or payable by such an indemnified party as a result of the
losses, damages or liabilities (or actions or claims in respect thereof)
referred to above in this Section 7(d) shall be deemed to include any legal or
other expenses incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages 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 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters in this Section 7(d) to contribute are several
in proportion to their respective underwriting obligations with respect to the
Shares and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director, employee, agent
or other representative of any Underwriter and to each person, if any, who
controls any Underwriter within the meaning of the 1933 Act; and the obligations
of the Underwriters under this Section 7 shall be in addition to any liability
that the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company who
signed the Registration Statement and to each person, if any, who controls the
Company within the meaning of the 1933 Act.
(f) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof, including, without limitation, the
provisions of this Section 7, and are fully informed regarding such provisions.
They further acknowledge that the provisions of this Section 7 fairly allocate
the risks in light of the ability of the parties to investigate the Company and
its business in order to assure that adequate disclosure is made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, and any
supplement or amendment thereof, as required by the 1933 Act.
8. Representations and Agreements to Survive Delivery. The respective
representations, warranties, agreements and statements of the Company and the
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain operative and in full
force and effect regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, the Company or any of its officers, directors or any
controlling persons, and shall survive delivery of and payment for the Shares
hereunder.
33
9. Substitution of Underwriters. (a) If any Underwriter shall default
in its obligation to purchase the Shares which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or parties
reasonably satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Shares, or the Company shall
notify you that they have so arranged for the purchase of such Shares, you or
the Company shall have the right to postpone the Closing Date for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any persons substituted under this Section 9 with like effect as
if such person had originally been a party to this Agreement with respect to
such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you and the Company
as provided in subsection (a) above, the aggregate number of Shares which
remains unpurchased does not exceed one-eleventh of the total Shares to be sold
on the Closing Date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the Shares which such Underwriter agreed
to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Shares which
such Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you and the Company
as provided in subsection (a) above, the number of Shares which remains
unpurchased exceeds one-eleventh of the total Shares to be sold on the Closing
Date, or if the Company shall not exercise the right described in subsection (b)
above to require the non-defaulting Underwriters to purchase Shares of the
defaulting Underwriter or Underwriters, then this Agreement (or, with respect to
the Option Closing Date, the obligations of the Underwriters to purchase and of
the Company to sell the Option Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 11 hereof and the indemnity and contribution agreements in Section 7
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
34
10. Effective Date and Termination. (a) This Agreement shall become
effective at 1:00 p.m., New York time, on the first business day following the
effective date of the Registration Statement, or at such earlier time after the
effective date of the Registration Statement as you in your discretion shall
first release the Shares for offering to the public; provided, however, that the
provisions of Section 7 and 11 shall at all times be effective. For the purposes
of this Section 10(a), the Shares shall be deemed to have been released to the
public upon release by you of the publication of a newspaper advertisement
relating to the Shares or upon release of telegrams, facsimile transmissions or
letters offering the Shares for sale to securities dealers, whichever shall
first occur.
(b) This Agreement may be terminated by you at any time before it
becomes effective in accordance with Section 10(a) by notice to the Company;
provided, however, that the provisions of this Section 10 and of Section 7 and
Section 11 hereof shall at all times be effective. In the event of any
termination of this Agreement pursuant to Section 9 or this Section 10(b)
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Section 7 or Section 11 hereof.
(c) This Agreement may be terminated by you at any time at or prior to
the Closing Date by notice to the Company if any condition specified in Section
6 hereof shall not have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other party except as
provided in Sections 7 and 11 hereof.
(d) This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the Option Shares,
if any condition specified in Section 6 hereof shall not have been satisfied at
or prior to the Option Closing Date or as provided in Section 9 of this
Agreement.
If you terminate this Agreement as provided in Sections 10(b), 10(c) or
10(d), you shall notify the Company by telephone or facsimile transmission.
11. Costs and Expenses. The Company, whether or not the transactions
contemplated hereby are consummated or this Agreement is prevented from becoming
effective under Section 10 hereof or is terminated, will bear and pay the costs
and expenses incident to the registration of the Shares and public offering
thereof, including, without limitation, (a) all expenses (including stock
transfer taxes) incurred in connection with the delivery to the several
Underwriters of the Shares, the filing fees of the SEC, and the fees and
expenses of the Company's counsel and accountants, (b) the preparation,
printing, filing, delivery and shipping of the Registration Statement, each
Preliminary Prospectus, the Prospectus and any amendments or supplements thereto
(except as otherwise expressly provided in Section 5(d) hereof) and the
printing, delivery and shipping of this Agreement and other underwriting
documents, including the Agreement Among Underwriters, the Selected Dealer
Agreement, Underwriters'
35
Questionnaires and Powers of Attorney and Blue Sky Memoranda, and any
instruments or documents related to any of the foregoing, (c) the furnishing of
copies of such documents (except as otherwise expressly provided in Section 5(d)
hereof) to the Underwriters, (d) the registration or qualification of the Shares
for offering and sale under the securities laws of the various states and other
jurisdictions, including the fees and disbursements of counsel to the
Underwriters relating to such registration or qualification and in connection
with preparing any Blue Sky Memoranda or related analysis, (e) the filing fees
of the NASD (if any) and fees and disbursements of counsel to the Underwriters
relating to any review of the offering by the NASD, (f) all printing and
engraving costs related to preparation of the certificates for the Shares,
including transfer agent and registrar fees, (g) all fees and expenses relating
to the authorization of the Shares for trading in the Nasdaq National Market,
(h) all travel expenses, including air fare and accommodation expenses, of
representatives of the Company in connection with the offering of the Shares,
and (i) all of the other costs and expenses incident to the performance by the
Company of the registration and offering of the Shares; provided, that the
Underwriters will bear and pay the fees and expenses of the Underwriters'
counsel (except as provided in this Section 11), the Underwriters' out-of-pocket
expenses, and any advertising costs and expenses incurred by the Underwriters
incident to the public offering of the Shares; and provided further that the
Underwriters will, upon consummation of the transactions contemplated hereby,
reimburse the Company for up to $75,000 of the costs and expenses incident to
the registration of the Shares and public offering thereof actually incurred by
the Company, as set forth above.
If this Agreement is terminated by you in accordance with the provisions of
Section 10(c), the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and disbursements of counsel to the
Underwriters.
12. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to the
Underwriters shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o X.X. Xxxxxxx & Sons, Inc. at Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Director, Corporate Finance,
facsimile number (000) 000-0000, with a copy to Xxxxx Xxxx LLP, 0000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx,
facsimile number (000) 000-0000, or if sent to the Company shall be mailed,
delivered, sent by facsimile transmission, or telegraphed and confirmed to the
Company at 00000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000, facsimile number (913)
451-8004, with a copy to Xxxxxxx Xxxxxxxx Xxxxxx LLP, 0000 Xxxxx Xxxxxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000-0000, Attention: Xxxx Xxxxxx, facsimile number (816)
474-4208. Notice to any Underwriter pursuant to Section 7 shall be mailed,
delivered, sent by facsimile transmission, or telegraphed and confirmed to such
Underwriter's address as it appears in the Underwriters' Questionnaire furnished
in connection with the offering of the Shares or as otherwise furnished to the
Company.
36
13. Information Furnished by Underwriters. The statements set forth in (i)
the paragraph immediately following the table on the cover page of the
Prospectus and (ii) the statements in the first, third and seventh paragraphs
under the caption "Underwriting" in the Prospectus constitute the only
information furnished by or on behalf of the Underwriters through you as such
information is referred to in Section 4(a)(ii) and Section 7 hereof.
14. Parties. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and, to the extent provided in Sections 7 and
8, the officers and directors of the Company and each person who controls the
Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, corporation or
other entity any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective successors and
assigns and said controlling persons and said officers and directors, and for
the benefit of no other person, corporation or other entity. No purchaser of any
of the Shares from any Underwriter shall be construed a successor or assign by
reason merely of such purchase.
In all dealings hereunder, you shall act on behalf of each of the several
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made or
given by you jointly or by X.X. Xxxxxxx & Sons, Inc. on behalf of you as the
Representatives, as if the same shall have been made or given in writing by the
Underwriters.
15. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
16. Pronouns. Whenever a pronoun of any gender or number is used herein,
it shall, where appropriate, be deemed to include any other gender and number.
17. Time of Essence. Time shall be of the essence of this Agreement.
18. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Missouri, without giving effect to the
choice of law or conflict of laws principles thereof.
37
If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company and the Underwriters.
GOLD BANC CORPORATION, INC.
By:________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Accepted in St. Louis,
Missouri as of the date
first above written, on
behalf of ourselves and each
of the several Underwriters
named in Schedule II hereto.
X.X. XXXXXXX & SONS, INC.
RBC XXXX XXXXXXXX INC.
SANDLER X'XXXXX & PARTNERS, L.P.
As Representatives of the several
Underwriters named on Schedule II hereto
By: X.X. XXXXXXX & SONS, INC.
By: _______________________
Title: _____________________
38
SCHEDULE I
39
SCHEDULE II
Pursuant to Section 6(f) of the Underwriting Agreement, KPMG LLP shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the 1933 Act
and the applicable Rules and Regulations thereunder and such accountants are not
in violation of the auditor independence requirements the Xxxxxxxx-Xxxxx Act.
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if applicable,
prospective financial statements and/or pro forma financial information
examined) by them and included or incorporated by reference in the Prospectus or
the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the applicable Rules and
Regulations with respect to registration statements on Form S-3; and, if
applicable, they have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data, pro forma
financial information, prospective financial statements and/or condensed
financial statements derived from audited financial statements of the Company
for the periods specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the Representatives of the Underwriters
(the "Representatives").
(iii) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred to
below, performing the procedures specified by the AICPA for a review of interim
financial information as discussed in SAS No. 71, Interim Financial Information,
on the latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in the
Prospectus, inquiries of officials of the Company and its subsidiaries
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) any material modifications should be made to the
unaudited statements of consolidated income, statements of
consolidated financial position and statements of consolidated cash
flows included or incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles, or the unaudited statements of consolidated income,
statements of consolidated financial position and statements of
consolidated cash flows
40
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the related published Rules and Regulations thereunder.
(B) any other unaudited income statement data and balance sheet
items included or incorporated by reference in the Prospectus do not
agree with the corresponding items in the unaudited consolidated
financial statements from which such data and items were derived, and
any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts
in the audited consolidated financial statements included or
incorporated by reference in the Prospectus.
(C) the unaudited financial statements which were not included
or incorporated by reference in the Prospectus but from which were
derived any unaudited condensed financial statements referred to in
Clause (A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B) were
not determined on a basis substantially consistent with the basis for
the audited consolidated financial statements included or
incorporated by reference in the Prospectus.
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements.
(E) 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 or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
working capital, net current assets or net assets, or any changes in
any other items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter.
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or
41
any changes in any other items specified by the Representatives,
in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for
changes, decreases or increases which the Prospectus discloses
have occurred or may occur or which are described in such letter.
(iv) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in paragraph (iii) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the general
accounting records of the Company and its subsidiaries for the periods covered
by their reports and any interim or other periods since the latest period
covered by their reports, which appear or are incorporated by reference in the
Prospectus, or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in agreement.
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