XXXXXXX AND XXXXXX
DRAFT OF JUNE 11, 1999
$20,000,000 PREFERRED SECURITIES*
SPECTRUM CAPITAL TRUST I
____% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION PREFERENCE OF $10 PER TRUST PREFERRED SECURITY)
UNDERWRITING AGREEMENT
August __, 1999
Xxxx Xxxxxx Investments, Inc.
As Representative of the several Underwriters
named in Schedule A
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Spectrum Bancorporation, Inc., an Iowa corporation (the "COMPANY"), and
its subsidiary, Spectrum Capital Trust I, a statutory business trust organized
under the Delaware Business Trust Act (the "DELAWARE ACT") (the "TRUST" and,
together with the Company, the "OFFERORS"), propose, subject to the terms and
conditions stated herein, to issue and sell to you (the "UNDERWRITERS"), an
aggregate of $20,000,000, representing 2,000,000 securities of the Trust's ____%
Cumulative Trust Preferred Securities, with a liquidation preference of $10.00
per preferred security (the "FIRM PREFERRED SECURITIES"). In addition, the
Offerors propose to grant to the Underwriters an option to purchase up to
$3,000,000, representing 300,000 securities, of the Trust's ____% Cumulative
Trust Preferred Securities, with a liquidation preference of $10.00 per
preferred security (the "OPTION PREFERRED SECURITIES") as provided in Section 2
hereof. The Firm Preferred Securities and the Option Preferred Securities are
hereinafter collectively referred to as the "PREFERRED SECURITIES." The
Offerors propose that the Trust issue the Preferred Securities pursuant to a
Trust Agreement, as amended and restated, among Wilmington Trust Company, as
Property Trustee and Delaware Trustee, the administrative trustees named therein
(the "ADMINISTRATIVE TRUSTEES") and the Company (the "TRUST AGREEMENT"). The
Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"GUARANTEE") pursuant to a Guarantee Agreement (the "GUARANTEE AGREEMENT"), to
be dated August __, 1999, between the Company and Wilmington Trust Company, as
trustee (the "GUARANTEE TRUSTEE"), and entitled to the benefits of certain
backup undertakings described in the Prospectus (as defined herein) with respect
to the
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* The Offerors have granted to the Underwriters an option to purchase up to
$3,000,000, representing 300,000 Trust Preferred Securities.
Company's agreement pursuant to the Expense Agreement (as defined herein) to pay
all expenses relating to administration of the Trust.
The proceeds of the sale of the Preferred Securities will be used to
purchase junior subordinated deferrable interest debentures (the "JUNIOR
SUBORDINATED DEBENTURES") issued by the Company pursuant to an Indenture, to be
dated August __, 1999, between the Company and Wilmington Trust Company, as
trustee (the "INDENTURE").
The Offerors have filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (File Nos. 333-_____ and
333-_____) and a related preliminary prospectus for the registration of the
Preferred Securities, the Guarantee and the Junior Subordinated Debentures,
under the Securities Act of 1933, as amended (the "ACT") and the Trust Indenture
Act of 1939, as amended (the "TRUST INDENTURE ACT") and the rules and
regulations thereunder. The registration statement, as amended, at the time it
was declared effective, including the information (if any) deemed to be part
thereof pursuant to Rule 430A under the Act, is herein referred to as the
"REGISTRATION STATEMENT." The form of prospectus first filed by the Offerors
with the Commission pursuant to Rules 424(b) and 430A under the Act is referred
to herein as the "PROSPECTUS." Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective or filed with the
Commission pursuant to Rule 424(a) under the Act is referred to herein as a
"PRELIMINARY PROSPECTUS." The Securities Exchange Act of 1934, as amended, is
referred to herein as the "EXCHANGE ACT." Copies of the Registration Statement,
including all exhibits and schedules thereto, any amendments thereto and all
Preliminary Prospectuses have been delivered to you.
The Offerors hereby confirm their agreement with respect to the purchase
of the Preferred Securities by the Underwriters as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE OFFERORS. (a) The Offerors
jointly and severally represent and warrant to, and agree with, each of the
Underwriters that:
(i) The Registration Statement has been declared effective
under the Act, and no post-effective amendment to the Registration
Statement has been filed with the Commission as of the date of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or threatened by the Commission.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Trust Indenture
Act and the rules and regulations of the Commission promulgated
thereunder, and did not 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, in light
of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Offerors make no representation or
warranty as to information contained in or omitted in reliance upon,
and in conformity with, written information furnished to the Offerors
by or on behalf of any Underwriter, expressly for use in the
preparation thereof.
(iii) The Registration Statement conforms, and the Prospectus
and any amendments or supplements thereto will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act and
the rules and regulations thereunder. Neither the Registration
Statement nor any amendment thereto, and neither 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 light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that the Offerors make no
representation or warranty as to (i) 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 Offerors by or on behalf of any
Underwriter, expressly for use in the preparation thereof or
(ii) information in those parts of the Registration Statement which
constitute the Statement of Eligibility and Qualification ("FORM T-1")
under the Trust Indenture Act.
(iv) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act with full
trust power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and is authorized
to do business in each jurisdiction in which such qualification is
required, except where the failure to so qualify would not have a
material adverse effect on the Trust's condition (financial or
otherwise), earnings, business, prospects, assets, results of operations
or properties taken as a whole; the Trust has conducted and will conduct
no business other than the transactions contemplated by the Trust
Agreement and described in the Prospectus; the Trust is not a party to
or otherwise bound by any agreement other than those described in the
Prospectus; the Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not as an association
taxable as a corporation; and the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
(v) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Iowa and is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended (the "BHC ACT"), supervised by
the Board of Governors of the Federal Reserve System (the "FED").
Except as set forth in Schedule B attached hereto, the Company does not
directly or indirectly own any stock or other equity
interest in any corporation, partnership, joint venture,
unincorporated association or other entity other than F&M Bank,
Watertown, South Dakota ("F&M"), Rushmore State Bank & Trust, Rapid
City, South Dakota ("RUSHMORE"), Citizens Bank, Mt. Ayr, Iowa
("CITIZENS") and Citizens Bank of Princeton, Princeton, Missouri
("PRINCETON," and collectively, the "BANKS") and Spectrum Banc Service
Corp. The Banks and any other entities owned by the Company being
collectively referred to herein as the "SUBSIDIARIES." Each
Subsidiary has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own or lease
its properties and conduct its business as described in the
Prospectus, and is duly qualified to transact business in all
jurisdictions in which the conduct of its business or its ownership or
leasing or property requires such qualification and the failure so to
qualify would have a material adverse effect on the business or
condition, financial or otherwise, of the Company and the
Subsidiaries, taken as a whole. All outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable, and are owned,
directly or indirectly, by the Company free and clear of all liens,
encumbrances and security interests, except as set forth in the
Prospectus. No options, warrants or other rights to purchase,
agreements or other obligations to issue, or other rights to convert
any obligations into, shares of capital stock or ownership interests
in any of the Subsidiaries are outstanding.
(vi) All of the issued and outstanding shares of capital
stock of the Company are duly authorized, validly issued, fully paid and
nonassessable, were offered and sold in compliance with all federal and
state securities laws, and were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase
securities. Except as otherwise stated in the Registration Statement
and Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the voting or
transfer of, the Junior Subordinated Debentures, the common securities
of the Trust held by the Company (the "COMMON SECURITIES") or the
Preferred Securities. Neither the filing of the Registration Statement
nor the registration of the Preferred Securities, the Guarantee or the
Junior Subordinated Debentures gives rise to any rights for or relating
to the registration of any capital stock or other securities of the
Company or the Trust. The Company has an authorized and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus.
(vii) Each of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Agreement as to Expenses and
Liabilities (the "EXPENSE AGREEMENT") has been duly authorized, executed
and delivered by the Company and/or the Trust, as the case may be, and
constitutes a valid, legal and binding obligation of the Company and/or
the Trust, as the case may be, enforceable in accordance with its terms,
except as rights to indemnity hereunder may be limited by federal or
state securities laws and except as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject to
general principles of equity and, with respect to Section 7 hereof, by
the public policy underlying the federal or state securities laws.
The execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the
Expense Agreement and the consummation of the transactions herein or
therein contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, any indenture, mortgage, deed of trust, loan agreement,
lease, franchise, license or other agreement or instrument to which
the Trust, the Company or any of the Subsidiaries is a party or by
which the Trust, the Company or any of the Subsidiaries is bound or to
which any property or assets of the Trust, the Company or any of the
Subsidiaries is subject, the Company's or any Subsidiary's charter or
bylaws, the Trust Agreement or the Trust's certificate of trust filed
with the State of Delaware on __________, 1999 (the "CERTIFICATE OF
TRUST") or any order, rule, regulation or decree of any court or
governmental agency or body having jurisdiction over the Company, any
Subsidiary or the Trust or having jurisdiction over any of the
properties of the Company, any Subsidiary or the Trust. No consent,
approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement and the Expense Agreement or for the
consummation of the transactions contemplated hereby or thereby,
including the issuance or sale of the Junior Subordinated Debentures
by the Company and the Common Securities and the Preferred Securities
by the Trust, except such as may be required under the Act, all of
which have been obtained or made, and under state securities or blue
sky laws. Each of the Company and the Trust, as the case may be, has
full power and authority to enter into this Agreement, the Indenture,
the Trust Agreement, the Guarantee Agreement and the Expense
Agreement, as the case may be, and to authorize, issue and sell the
Junior Subordinated Debentures or the Common Securities and the
Preferred Securities, as the case may be, as contemplated by this
Agreement; and each of the Indenture, the Trust Agreement and the
Guarantee Agreement has been duly qualified under the Trust Indenture
Act and will conform in all material respects to the statements
relating thereto in the Registration Statement and the Prospectus.
(viii) The Junior Subordinated Debentures have been duly
authorized by the Company and at the Closing Date will have been duly
executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as described
in the Prospectus, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of
equity, will be in the form contemplated by, and entitled to the
benefits of, the Indenture, will conform to the statements relating
thereto in the Prospectus, and
will be owned by the Trust free and clear of any security interest,
pledge, lien, encumbrance, claim or equity.
(ix) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Prospectus, will be
validly issued and (subject to the terms of the Trust Agreement) fully
paid and nonassessable undivided beneficial interests in the assets of
the Trust and will conform to all statements relating thereto contained
in the Prospectus; and at the Closing Date all of the issued and
outstanding Common Securities of the Trust will be directly owned by the
Company free and clear of any security interest, pledge, lien,
encumbrance, claim or equity.
(x) The Preferred Securities have been duly authorized by
the Trust Agreement and, when issued and delivered pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable undivided beneficial
interests in the Trust, will be entitled to the benefits of the Trust
Agreement and will conform to the statements relating thereto contained
in the Prospectus; and holders of Preferred Securities will be entitled
to the same limitation of personal liability under Delaware law as
extended to stockholders of private corporations for profit.
(xi) The Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement are in substantially the respective
forms filed as exhibits to the Registration Statement.
(xii) The Company's obligations under the Guarantee Agreement
are subordinated and junior in right of payment to all Senior and
Subordinated Debt (as defined in the Indenture) of the Company.
(xiii) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all Senior and Subordinated Debt of the
Company.
(xiv) Each of the Administrative Trustees of the Trust is an
officer of the Company and has been duly authorized by the Company to
execute and deliver the Trust Agreement.
(xv) The financial statements, together with the related
notes and schedules, contained in the Registration Statement and
Prospectus present fairly the consolidated financial position, results
of operations, shareholders' equity and cash flows of the Company and
its consolidated Subsidiaries on the basis stated therein at the
indicated dates and for the indicated periods. Such financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of
results for such periods have been made, except as otherwise stated
therein. The selected financial and
statistical data included in the Registration Statement present fairly
the information shown therein on the basis stated in the Registration
Statement and have been compiled on a basis consistent with the
financial statements presented therein.
(xvi) There is no action or proceeding pending or, to the
knowledge of the Trust or the Company, threatened or contemplated
against any of the Trust, the Company or any Subsidiary before any court
or administrative or regulatory agency which, if determined adversely to
the Trust, the Company or such Subsidiary would, individually or in the
aggregate, result in a material adverse change in the business or
condition (financial or otherwise), results of operations, shareholders'
equity or prospects of the Trust, the Company or such Subsidiary, taken
as a whole, except as set forth in the Registration Statement.
(xvii) There are no contracts or documents of the Trust or the
Company or any Subsidiary that are required by the Act or by the rules
and regulations thereunder to be filed as exhibits to the Registration
Statement which contracts or documents have not been so filed.
(xviii) The Company and the Subsidiaries have good and
marketable title to all properties and assets reflected as owned in the
financial statements hereinabove described (or as described as owned in
the Prospectus), in each case free and clear of all liens, encumbrances
and defects, except such as are described in the Prospectus or do not
substantially affect the value of such properties and assets and do not
materially interfere with the use made and proposed to be made of such
properties and assets by the Company and the Subsidiaries; and any real
property and buildings held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings
by the Company and the Subsidiaries.
(xix) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or
supplemented, (A) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the condition, financial or otherwise, of the Trust, the
Company and the subsidiaries taken as a whole, or the business affairs,
management, financial position, shareholders' equity or results of
operations of the Trust, the Company and the Subsidiaries, taken as a
whole, whether or not occurring in the ordinary course of business,
including, without limitation, any material increase in the amount or
number of classified assets of the Banks, any decrease in net interest
margin for any month to a level below ____%, or any material decrease in
the volume of loan originations, the amount of deposits or the amount of
loans, (B) there has not been any transaction not in the ordinary course
of business entered into by the Trust, the Company or any of the
Subsidiaries which is material to the Trust, the Company
and the Subsidiaries, taken as a whole, other than transactions
described or contemplated in the Registration Statement, (C) the
Trust, the Company and the Subsidiaries have not incurred any material
liabilities or obligations, which are not in the ordinary course of
business or which could result in a material reduction in the future
earnings of the Trust, the Company and the Subsidiaries, (D) the
Trust, the Company and the Subsidiaries have not sustained any
material loss or interference with their respective businesses or
properties from fire, flood, windstorm, accident or other calamity,
whether or not covered by insurance, (E) since May 31, 1999, there has
not been any change in the capital stock of the Company or the
Subsidiaries (other than upon the exercise of options and warrants
described in the Registration Statement), or any material increase in
the short-term or long-term debt (including capitalized lease
obligations) of the Company and the Subsidiaries, taken as a whole,
and (F) since March 31, 1999, there has not been any declaration or
payment of any dividends or any distributions of any kind with respect
to the capital stock of the Company or the Subsidiaries other than any
dividends or distributions described or contemplated in the
Registration Statement.
(xx) Neither the Company nor any of the Subsidiaries is in
violation of its respective charter or Bylaws; the Trust is not in
violation of the Trust Agreement or its Certificate of Trust; and none
of the Trust, the Company, or the Subsidiaries is in violation of or
otherwise in default under any statute, or any rule, regulation, order,
judgment, decree or authorization of any court or governmental or
administrative agency or body having jurisdiction over the Trust, the
Company or any of the Subsidiaries or any of their properties, or any
indenture, mortgage, deed of trust, loan agreement, lease, franchise,
license or other agreement or instrument to which the Trust, the Company
or any of the Subsidiaries is a party or by which any of them are bound
or to which any property or assets of the Trust, the Company or any of
the Subsidiaries is subject, which violation or default would have a
material adverse effect on the business, condition (financial or
otherwise), results of operations, shareholders' equity or prospects of
the Trust, the Company and the Subsidiaries, taken as a whole.
(xxi) The Administrative Trustees on behalf of the Trust, the
Company and each of the Subsidiaries holds and is operating in
compliance with all licenses, approvals, certificates and permits from
governmental and regulatory authorities, foreign and domestic, which are
necessary to the conduct of its business as described in the Prospectus.
Without limiting the generality of the foregoing, the Company has all
necessary approvals of the Fed to own the stock of the Subsidiaries.
None of the Trust, the Company or any Subsidiary has received notice of
or has knowledge of any basis for any proceeding or action relating
specifically to the Trust, the Company or the Subsidiaries for the
revocation or suspension of any such consent, authorization, approval,
order, license, certificate or permit or any other action or proposed
action by any regulatory authority having jurisdiction over the Trust,
the Company or the
Subsidiaries that would have a material adverse effect on the Trust,
the Company or any Subsidiary.
(xxii) To the best of the Offerors' knowledge, XxXxxxxxx &
Xxxxxx, LLP which has certified certain of the financial statements
filed with the Commission as part of the Registration Statement, are
independent public accountants as required by the Act and the rules and
regulations thereunder.
(xxiii) The Offerors have not taken and will not take, directly
or indirectly, any action designed to, or which has constituted, or
which might reasonably be expected to cause or result in, stabilization
or manipulation of the price of the Preferred Securities.
(xxiv) The Offerors' registration statement pursuant to
Section 12(g) of the Exchange Act with respect to the Preferred
Securities, has been declared effective by the Commission; the Preferred
Securities have been approved for quotation and trading, upon notice of
issuance, on the American Stock Exchange under the symbol "_________."
(xxv) The Offerors have not distributed and will not
distribute any prospectus or other offering material in connection with
the offering and sale of the Preferred Securities other than any
Preliminary Prospectus or the Prospectus or other materials permitted by
the Act to be distributed by the Company.
(xxvi) The deposit accounts of the Banks are insured by the
Federal Deposit Insurance Corporation (the "FDIC") to the fullest extent
provided by law. No proceeding for the termination of such insurance is
pending or is threatened. Neither the Company nor any Subsidiary has
received or is subject to any directive or order from the Fed, the FDIC,
the South Dakota Department of Banking and Finance, the Missouri
Division of Finance, the Iowa Division of Banking, or any other
regulatory authority to make any material change in the method of
conducting their respective businesses that has not been complied with
in all material respects.
(xxvii) Neither the Offerors nor any of their affiliates does
any business, directly or indirectly, with the government of Cuba or
with any person or entity located in Cuba.
(xxviii) The Trust, the Company and the Subsidiaries, to the
best of their knowledge, have filed all federal, state, local and
foreign tax returns or reports required to be filed, and have paid in
full all taxes indicated by said returns or reports and all assessments
received by it or any of them to the extent that such taxes have become
due and payable, except where the Trust, the Company and the
Subsidiaries are contesting in good faith such taxes and assessments.
The Company and the Subsidiaries have also filed all required
applications, reports, returns and other documents and information with
all state and federal banking
authorities and agencies.
(xxix) The Trust, the Company and each of the Subsidiaries, to
the best of their knowledge, owns or licenses all patents, patent
applications, trademarks, service marks, tradenames, trademark
registrations, service mark registrations, copyrights, licenses,
inventions, trade secrets and other similar rights necessary for the
conduct of their businesses as described in the Prospectus. Neither the
Trust, the Company nor any of the Subsidiaries has any knowledge of any
infringement by them of any patents, patent applications, trademarks,
service marks, tradenames, trademark registrations, service mark
registrations, copyrights, licenses, inventions, trade secrets or other
similar rights of others, and none of the Trust, the Company or any of
the Subsidiaries has received any notice or claim of conflict with the
asserted rights of others with respect to any of the foregoing.
(xxx) None of the Trust, the Company or any of the
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or an "investment adviser" within the meaning of the
Investment Advisers Act of 1940, as amended.
(xxxi) The Company and its Subsidiaries maintain, and the
Trust will maintain, a system of internal accounting controls sufficient
to provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization;
(B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (C) access to
records is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(xxxii) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred
any liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(xxxiii) No report or application filed by the Company or any of
its subsidiaries with the Fed, the FDIC, the South Dakota Division of
Banking and Finance, the Missouri Division of Finance or the Iowa
Division of Banking, as of the date it was filed, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading when made or failed to comply with the applicable
requirements of the Fed, the FDIC, the South Dakota Division of Banking
and Finance, the Missouri Division of Finance or the Iowa Division of
Banking, as the case may be.
(xxxiv) The proceeds from the sale of the Preferred Securities
will constitute "Tier 1" capital (as defined in 12 C.F.R. Part 325),
subject to applicable regulatory restrictions on the amount thereof that
can be included in Tier 1 capital.
(b) Any certificate signed by or on behalf of the Trust or the
Company and delivered to the Underwriters or counsel to the Underwriters shall
be deemed to be a representation and warranty of the Trust or the Company to
each Underwriter as to the matters covered thereby.
2. PURCHASE, SALE AND DELIVERY OF PREFERRED SECURITIES. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Trust agrees to issue
and sell to each Underwriter, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Trust, at a purchase price per Preferred
Security of $10.00, the number of Firm Preferred Securities set forth opposite
the name of such Underwriter in Schedule A hereto. As compensation to the
Underwriters for their commitments hereunder and in view of the fact that the
proceeds of the sale of the Preferred Securities (together with the entire
proceeds from the sale by the Trust to the Company of the Common Securities)
will be used to purchase the Junior Subordinated Debentures, the Company hereby
agrees to pay at the Closing Date to the Representative a commission of $0.375
per Preferred Security sold by the Trust hereunder.
The Firm Preferred Securities will be delivered by the Company to the
Representative against payment of the purchase price therefor at the offices of
Baird, Holm, XxXxxxxx, Xxxxxxxx, Hamann & Xxxxxxxxx, Omaha, Nebraska, or such
other location as may be mutually acceptable, at 9:00 a.m. Central time on
August __, 1999, or such other time and date as the Representative and the
Company may agree upon in writing, such time and date of delivery being herein
referred to as the "FIRST CLOSING DATE." The purchase price shall be payable by
wire transfer of immediately available funds to an account, such account to be
designated by the Trust at least two business days preceding the First Closing
Date. The Underwriters' commission shall be payable by wire transfer of
immediately available funds to an account, such account to be designated by the
Underwriters at least two business days preceding the First Closing Date.
Delivery of the Firm Preferred Securities may be made by credit through full
fast transfer to the accounts at The Depository Trust Company designated by you.
Certificates representing the Firm Preferred Securities, in definitive form and
in such denominations and registered in such names as you may request upon at
least two business days' prior notice to the Company shall be prepared and will
be made available for checking and packaging, not later than 10:30 a.m., Central
time, on the business day next preceding the First Closing Date at the offices
of Xxxx Xxxxxx Investments, Inc., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or such other location as may be mutually acceptable.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of 300,000 Option
Preferred Securities, at the same purchase price per share to be paid for the
Firm Preferred Securities, for use solely in covering any overallotments made by
the Underwriters in the sale and distribution of the Firm Preferred Securities.
The option granted hereunder may be exercised at any time (but not more than
once) within 30 days after the date of the initial public offering upon notice
by you to the Company setting forth the aggregate number of Option Preferred
Securities as to which the Underwriters are exercising the option, the names and
denominations in which the certificates for such shares are to be registered and
the time and place at which such certificates will be delivered. Such time of
delivery (which may not be earlier than the First Closing Date), being herein
referred to as the "SECOND CLOSING DATE," shall be determined by you, but if at
any time other than the First Closing Date, shall not be earlier than three nor
later than 10 full business days after delivery of such notice of exercise. The
number of Option Preferred Securities to be purchased by each Underwriter shall
be determined by multiplying the number of Option Preferred Securities to be
sold by the Company pursuant to such notice of exercise by a fraction, the
numerator of which is the number of Firm Preferred Securities to be purchased by
such Underwriter as set forth opposite its name in Schedule A and the
denominator of which is the total number of Firm Preferred Securities (subject
to such adjustments to eliminate any fractional share purchases as you in your
absolute discretion may make). Certificates for the Option Preferred Securities
will be made available at the Company's expense for checking and packaging at
10:30 a.m., Chicago Time, on the business day preceding the Second Closing Date.
The manner of payment for and delivery of the Option Preferred Securities shall
be the same as for the Firm Preferred Securities as specified in the preceding
paragraph.
It is understood that any Underwriter may (but shall not be obligated
to) make payment to the Company on behalf of the other Underwriter for the
Preferred Securities to be purchased by such Underwriter. Any such payment
shall not relieve such other Underwriter of any of its obligations hereunder.
Nothing herein contained shall constitute the Underwriters an unincorporated
association or partner with either or both Offerors.
3. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to make a public offering of the Preferred Securities as
soon as the Underwriters deem it advisable to do so. The Preferred Securities
are to be initially offered to the public at the initial public offering price
set forth in the Prospectus. The Underwriters may from time to time thereafter
change the public offering price and other selling terms.
4. COVENANTS OF THE OFFERORS. The Offerors jointly and severally
covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of
the Trust will prepare and timely file with the Commission under
Rule 424(b) under the Act a Prospectus containing information previously
omitted at the time of effectiveness of the Registration Statement in
reliance on Rule 430A under the Act, and will not file any amendment to
the Registration Statement or supplement to the Prospectus of which the
Underwriters shall not previously have been advised and furnished with a
copy and as to which the Underwriters shall have reasonably objected in
writing promptly after reasonable notice thereof or which is not in
compliance with the Act or the rules and regulations thereunder.
(b) The Offerors will advise the Underwriters promptly of any
request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, or
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the
Prospectus, of the suspension of the qualification of the Preferred
Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for that purpose, and the
Offerors will use their best efforts to prevent the issuance of any such
stop order preventing or suspending the use of the Prospectus or
suspending such qualification and to obtain as soon as possible the
lifting thereof, if issued.
(c) The Offerors will cooperate with you and your counsel in
order to qualify the Preferred Securities for sale under the securities
laws of such jurisdictions as the Underwriters may reasonably have
designated in writing and to continue such qualifications in effect for
so long as the Underwriters may reasonably request for distribution of
the Preferred Securities (or obtain exemptions from the application of
such laws), PROVIDED that neither Offeror shall be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required
to file such a consent. The Offerors will, from time to time, prepare
and file such statements, reports and other documents as may be
requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many
copies of any Preliminary Prospectus as the Underwriters may reasonably
request and, during the period when delivery of a prospectus is required
under the Act, the Offerors will furnish the Underwriters with as many
copies of the Prospectus in final form, or as thereafter amended or
supplemented, as the Underwriters may, from time to time, reasonably
request. The Offerors will deliver to the Underwriters, at or before
the Closing Date, two signed copies of the Registration Statement and
all amendments thereto including all exhibits filed therewith, and will
deliver to the Underwriters such number of conformed copies of the
Registration Statement, without exhibits, and of all amendments thereto,
as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required
by law to be delivered by an Underwriter or dealer, any event shall
occur as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, not misleading, or if for
any other reason it shall be necessary at any time to amend or
supplement the Prospectus to comply with any law, the Offerors promptly
will prepare and file with the Commission an appropriate amendment to
the Registration Statement or supplement to the Prospectus so that the
Prospectus as so amended or supplemented will not include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein in light of the
circumstances when it is so delivered, not misleading, or so that the
Prospectus will comply with law.
(f) The Offerors will make generally available to their
security holders, as soon as it is practicable to do so, but in any
event not later than 18 months after the effective date of the
Registration Statement, an earnings statement (which need not be
audited) in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 thereunder and
will advise you in writing when such statement has been so made
available.
(g) The Company will, for five years from the First Closing
Date, deliver to each Underwriter, as soon as they are available, copies
of its annual report and copies of all other documents, reports and
information furnished by the Company to its security holders or filed
with any securities exchange pursuant to the requirements of such
exchange or with the Commission pursuant to the Act or the Exchange Act.
The Company will deliver to each Underwriter similar reports with
respect to significant subsidiaries, as that term is defined in the
rules and regulations under the Act, which are not consolidated in the
Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of
the Junior Subordinated Debentures and the Preferred Securities
substantially in accordance with the purposes set forth under "Use of
Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing
and reporting requirements of the Exchange Act and the American Stock
Exchange.
5. COSTS AND EXPENSES. (a) The Offerors will pay (directly or by
reimbursement) all costs, expenses and fees incident to the performance of the
obligations of the Offerors under this Agreement, including, without limiting
the
generality of the foregoing, the following: accounting fees of the
Offerors; the fees and disbursements of counsel for the Offerors; the cost of
preparing, printing and filing of the Registration Statement, Preliminary
Prospectuses and the Prospectus and any amendments and supplements thereto and
the printing, mailing and delivery to the Underwriters and dealers of copies
thereof and of this Agreement, the Selected Dealers Agreement, the Blue Sky
Memorandum, if deemed necessary by the Underwriters, after consultation with the
Offerors, and any supplements or amendments thereto (excluding, except as
provided below, fees and expenses of counsel to the Underwriters); the filing
fees of the Commission; the filing fees and expenses (including legal fees and
disbursements of counsel for the Underwriters) incident to securing any required
review by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Preferred Securities; the fees and expenses of the
Indenture Trustee, including the fees and disbursements of counsel for the
Indenture Trustee in connection with the Indenture and Junior Subordinated
Debentures; the fees and expenses of the Property Trustee and the Delaware
Trustee, including the fees and disbursements of counsel for the Property
Trustee and the Delaware Trustee in connection with the Trust Agreement and the
Certificate of Trust; the fees and expenses of the Guarantee Trustee, including
the fees and disbursements of counsel for the Guarantee Trustee in connection
with the Guarantee and Guarantee Agreement; listing fees, if any, transfer taxes
and the expenses, including the fees and disbursements of counsel for the
Underwriters, incurred in connection with the qualification of the Preferred
Securities under state securities or Blue Sky laws; the fees and expenses
incurred in connection with the designation of the Preferred Securities on the
American Stock Exchange; the costs of preparing certificates representing Junior
Subordinated Debentures or Preferred Securities; the costs and fees of any
registrar or transfer agent and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 5. In addition, the Offerors will pay all travel
and lodging expenses incurred by management of the Offerors in connection with
any informational "road show" meetings held in connection with the offering and
will also pay for the preparation of all materials used in connection with such
meetings. The Offerors shall not be required to pay for any of the
Underwriters' expenses (other than those related to qualification of the
Preferred Securities under state securities or Blue Sky laws and those incident
to securing any required review by the NASD of the terms of the sale of the
Preferred Securities which shall be paid by the Offerors as provided above)
except that, if this Agreement shall not be consummated because the conditions
in Section 6 hereof are not satisfied, or because this Agreement is terminated
by the Underwriters pursuant to Sections 9(a) or 9(b) hereof, or by reason of
any failure, refusal or inability on the part of the Offerors to perform any
undertaking or satisfy any condition of this Agreement or to comply with any of
the terms hereof on either of their parts to be performed, unless such failure
to satisfy said condition or to comply with said terms shall be due to the
default or omission of any Underwriter, then the Offerors promptly upon request
by the Underwriters shall reimburse the several Underwriters for all actual,
accountable out-of-pocket expenses, including fees and disbursements of counsel
reasonably incurred in connection with investigating, marketing and proposing to
market the Preferred Securities or in contemplation of performing their
obligations hereunder, up to $25,000; but the Offerors shall not in any
event be liable to any of the several Underwriters for damages on account of
loss of anticipated profits from the sale by them of the Preferred Securities.
(b) Upon successful completion of the offering contemplated by this
Agreement, the Offerors will pay all reasonable and customary costs, expenses
and fees incident to tombstone advertisements of the offering and incurred with
the approval of the Company.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several
obligations of the Underwriters to purchase the Firm Preferred Securities on the
First Closing Date and the Option Preferred Securities on the Second Closing
Date are subject to the condition that all representations and warranties of the
Offerors contained herein are true and correct, at and as of the First Closing
Date or the Second Closing Date, as the case may be, and the condition that each
Offeror shall have performed all of its covenants and obligations hereunder and
to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof; no stop order suspending the effectiveness of
the Registration Statement, as amended from time to time, or any part
thereof shall have been issued and no proceedings for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of the Underwriters.
(b) The Underwriters shall have received on the First Closing
Date or the Second Closing Date, as the case may be, the opinion of
Xxxxx, Xxxx, XxXxxxxx, Xxxxxxxx, Xxxxxx & Xxxxxxxxxx, counsel for the
Offerors, dated the Closing Date, addressed to the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate
power and authority to own or lease its properties and conduct
its business as described in the Prospectus. All of the
issued and outstanding shares of the capital stock of the
Company have been duly authorized and validly issued and are
fully paid and nonassessable. The holders of the Company's
outstanding securities are not entitled to any preemptive or
other rights to subscribe for the Junior Subordinated
Debentures or the Preferred Securities under the Company's
Articles of Incorporation or Bylaws and, to the knowledge of
such counsel, no such rights exist under any other agreement
or arrangement. The Company has authorized and outstanding
capital stock as described in the Prospectus.
(ii) Each Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own or
lease its properties and conduct its business as described in
the Prospectus. The outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable and is owned, directly or
indirectly, by the Company, free and clear of all liens,
encumbrances and security interests, other than security
interests specifically disclosed in the Prospectus. To the
knowledge of such counsel, no options, warrants or other
rights to purchase, agreements or other obligations to issue
or other rights to convert any obligations into capital stock
or ownership interests in any Subsidiary are outstanding.
(iii) All of the issued and outstanding Common
Securities of the Trust are owned by the Company free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the
Guarantee, the Form T-1 Statement of Eligibility of Wilmington
Trust Company to act as trustee under the Indenture, the Form
T-1 Statement of Eligibility of Wilmington Trust Company to
act as trustee under the Trust Agreement, and the Form T-1
Statement of Eligibility of Wilmington Trust Company to act as
trustee under the Guarantee Agreement have been duly qualified
under the Trust Indenture Act.
(v) The Junior Subordinated Debentures are in the
form contemplated by the Indenture, have been duly authorized,
executed and delivered by the Company and, when authenticated
by the Indenture Trustee in the manner provided for in the
Indenture and delivered against payment therefor, will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject
to general principles of equity.
(vi) The Junior Subordinated Debentures are
subordinate and junior in right of payment to all "Senior and
Subordinated Debt" (as defined in the Indenture) of the
Company.
(vii) Under current law, the Trust will be classified
for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation;
accordingly, for United States federal income tax purposes
each beneficial owner of Preferred Securities will be treated
as owning an undivided beneficial interest in the Junior
Subordinated Debentures, and stated interest on the Junior
Subordinated Debentures generally will be included in income
by a holder of Preferred Securities
at the time such interest income is paid or accrued in
accordance with such holder's regular method of tax accounting.
(viii) For federal income tax purposes, (a) the Junior
Subordinated Debentures will constitute indebtedness of the
Company and (b) the interest on the Junior Subordinated
Debentures will be deductible by the Company on an economic
accrual basis in accordance with Section 163(e) of the
Internal Revenue Code of 1986, as amended, and Treasury
Regulation Section 1.163-7.
(ix) To the best of such counsel's knowledge and
information after due inquiry, the Trust is not required to be
authorized to do business in any other jurisdiction, except
where the failure to be so authorized would not have a
material adverse effect on the Trust's condition (financial or
otherwise), earnings, business, prospects, assets, results of
operations or properties taken as a whole and the Trust is not
a party to or otherwise bound by any material agreement other
than those described in the Prospectus.
(x) The Trust Agreement has been duly executed and
delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and
information after due inquiry, the Offerors are not in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or any other
instrument of which either of them is a party or by which
either of them may be bound, or to which any of the property
or assets of the Offerors is subject.
(xii) The Company has full corporate power and
authority and the Trust has full trust power and authority to
enter into this Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement and the Expense Agreement, as
applicable, and to issue the Junior Subordinated Debentures or
the Common Securities and Preferred Securities, as the case
may be, and to effect the transactions contemplated by this
Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement, as applicable, and each
of this Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement have been duly
authorized, executed and delivered by the Company and the
Trust, as applicable, and constitutes a valid, legal and
binding obligation of the Company and the Trust, as
applicable, enforceable in accordance with its terms (except
as rights to indemnity hereunder may be limited by federal or
state securities laws and except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors
generally and subject to general principles of equity). The
execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement, the
Preferred Securities, the Common Securities, the Junior
Subordinated Debentures and the Expense Agreement and the
consummation of the transactions herein or therein
contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under,
any statute, rule or regulation (except that such counsel need
express no opinion regarding any Blue Sky or state securities
laws), any lease, contract, indenture, mortgage, loan
agreement or other agreement or instrument known to such
counsel to which the Company, the Trust or any Subsidiary is a
party or by which it is bound or to which any of its property
is subject, the Company's or any Subsidiary's charter or
bylaws, or the Trust's Certificate or any permit, judgment,
order or decree known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company, the Trust or any Subsidiary or any of their
respective properties, except for any breach, violation or
default which would not have a material adverse effect on the
Company or the Trust; and no consent, approval, authorization,
order of, designation, declaration or filing by or with, any
court or any regulatory, administrative or governmental agency
or body is required for the execution, delivery and
performance of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement, the
Common Securities, the Preferred Securities, or the Junior
Subordinated Debentures, or for the consummation of the
transactions contemplated hereby or thereby (other than as may
be required by federal or state laws governing banks or bank
holding companies, the NASD, or by state securities and blue
sky laws, as to which such counsel need express no opinion),
including the issuance or sale of the Junior Subordinated
Debentures by the Company and the Common Securities and
Preferred Securities by the Trust, except (a) such as may be
required under the Act, which have been obtained or made, or
under state securities or blue sky laws, (b) such agreements,
instruments or obligations with respect to which valid
consents or waivers have been obtained by the Trust, the
Company or any of the Subsidiaries, and (c) the qualification
of the Trust Agreement, the Guarantee Agreement and the
Indenture under the Trust Indenture Act and the regulations
thereunder, all of which have been effected. The filing of
the Registration Statement and the registration of the Junior
Subordinated Debentures, the Guarantee and the Preferred
Securities under the Act does not give rise to any rights for
or relating to the registration of any shares of capital stock
or other securities of the Company.
(xiii) The Registration Statement has become effective
under the Act and, to the knowledge of such counsel, no stop
order proceedings with respect thereto have been instituted or
are pending or threatened by the Commission.
(xiv) The Registration Statement, the Prospectus and
each amendment or supplement, thereto comply as to form in all
material respects with the requirements of the Act and the
rules and regulations thereunder (except that such counsel
need express no opinion as to the financial statements and
related financial schedules contained in the financial
statements, Registration Statement, the Prospectus and each
amendment or supplement thereto).
(xv) The statements (A) in the Prospectus under the
caption "Material Federal Income Tax Consequences" and (B) in
the Registration Statement in Item 24, insofar as such
statements constitute a summary of matters of law, are
accurate summaries and fairly present the information called
for with respect to such matters.
(xvi) Such counsel does not know of any contracts,
agreements, documents or instruments required to be filed as
exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus which are not so
filed or described as required; and insofar as any statements
in the Registration Statement or the Prospectus constitute
summaries of any contract, agreement, document or instrument
to which the Trust, the Company or any Subsidiary is a party,
such statements are accurate summaries and fairly present the
information called for with respect to such matters.
(xvii) Such counsel knows of no legal or governmental
proceeding, pending or threatened, before any court or
administrative body or regulatory agency, to which the Trust,
the Company or any of the Subsidiaries is a party or to which
any of the properties of the Trust, the Company or any of the
Subsidiaries is subject that are required to be described in
the Registration Statement or Prospectus and are not so
described, or statutes or regulations that are required to be
described in the Registration Statement or the Prospectus that
are not so described (other than any banking laws (as defined
below), as to which counsel need express no opinion).
(xviii) Neither the Company nor the Trust is, and
immediately upon completion of the sale of Preferred
Securities contemplated hereby, neither the Company nor the
Trust will be, an "investment company" or a company
"controlled" by an investment company under the Investment
Company Act of 1940, as amended.
(xix) To the best of such counsel's knowledge, neither
the Company nor any of the Subsidiaries is in violation of its
respective charter or bylaws.
Such counsel shall also state that on the basis of such counsel's review
and participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, such counsel has no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Offerors prior to the First Closing Date or the
Second Closing Date, as the case may be (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus or any further amendment
or supplement thereto made by the Offerors prior to the First Closing Date or
the Second Closing Date, as the case may be, (other than the financial
statements and related schedules therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or that, as of the First
Closing Date or the Second Closing Date, as the case may be, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Offerors prior to the First Closing Date or the Second
Closing Date, as the case may be, (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
In rendering the above opinions, counsel may rely (i) as to matters of
law other than Iowa and federal law, upon the opinion or opinions of local
counsel PROVIDED that the extent of such reliance is specified in such opinion
and that such counsel shall state that such opinion or opinions of local counsel
are satisfactory to them and they believe they and you are justified in relying
thereon and (ii) as to matters of fact, upon the representations of the Trust
and the Company contained in this Agreement and upon certificates of trustees or
officers of the Trust, the Company and of public officials.
(c) The Underwriters shall have received on the Closing Date the
opinion of Baird, Holm, XxXxxxxx, Xxxxxxxx, Xxxxxx & Xxxxxxxxx banking counsel
for the Company, dated the First Closing Date or the Second Closing Date, as the
case may be, addressed to the Underwriters, to the effect that:
(i) The Banks have been duly chartered to conduct the
business of banking in their state of domicile and the Company has all
necessary power and authority to own the Banks. The Company and the
Banks have all necessary consents and approvals under applicable federal
and state laws and regulations relating to banks and bank holding
companies ("BANKING LAWS") to own their respective assets and carry on
their respective businesses as currently conducted.
(ii) The statements in the Prospectus under the captions
["Risk Factors
-- Dependence on Dividends from Subsidiary Banks, --Competitive
Banking Environment and -- Government Regulation and Recent
Legislation,"] insofar as such statements constitute a summary of
banking laws, are accurate summaries and fairly present the
information called for with respect to such matters.
(iii) Such counsel knows of no legal or governmental
proceeding, pending or threatened, before any court or administrative
body or regulatory agency, to which the Company or any of the
Subsidiaries is a party or to which any of the properties of the Company
or any of the Subsidiaries is subject that are required to be described
in the Registration Statement or Prospectus and are not so described, or
statutes or regulations that are required to be described in the
Registration Statement or the Prospectus that are not so described.
(iv) The execution and delivery of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement and the consummation of the transactions herein and therein
contemplated do not and will not conflict with or result in a violation
of or default under any banking laws, or any permit, judgment, decree or
order known to such counsel, or any lease, contract, indenture,
mortgage, loan agreement or other agreement or other instrument or
obligation known to such counsel to which the Company or the Banks are a
party or by which the Company or the Banks or any of their respective
properties is bound.
(v) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body under banking laws is necessary in connection with the
execution and delivery of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Expense Agreement and the
consummation of the transactions herein and therein contemplated, except
such as have been obtained or made, specifying the same.
(vi) The proceeds from the sale of the Preferred Securities
will constitute "Tier 1" capital (as defined in 12 C.F.R. Part 325),
subject to applicable regulatory limitations on the amount thereof that
can be included in Tier 1 capital.
(d) The Underwriters shall have received on the Closing Date
the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A. counsel to Wilmington
Trust Company, as Property Trustee under the Trust Agreement, Indenture
Trustee under the Indenture, and Guarantee Trustee under the Guarantee
Agreement, dated the First Closing Date or the Second Closing Date, as
the case may be, addressed to the Underwriters, to the effect that:
(i) Wilmington Trust Company is duly incorporated and is
validly existing in good standing as a banking corporation under the
laws of the State of Delaware.
(ii) Wilmington Trust Company has the power and authority to
execute, deliver and perform its obligations under the Trust Agreement,
the Indenture and the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the
Guarantee Agreement has been duly authorized, executed and delivered by
Wilmington Trust Company and constitutes a legal, valid and binding
obligation of Wilmington Trust Company, enforceable against Wilmington
Trust Company, in accordance with its terms.
(iv) The execution, delivery and performance by Wilmington
Trust Company of the Trust Agreement, the Indenture and the Guarantee
Agreement do not conflict with or constitute a breach of the charter or
by-laws of Wilmington Trust Company.
(v) No consent, approval or authorization of, or registration
with or notice to, any governmental authority or agency of the State of
Delaware or the United States of America governing the banking or trust
powers of Wilmington Trust Company is required for the execution,
delivery or performance by Wilmington Trust Company of the Trust
Agreement, the Indenture and the Guarantee Agreement.
(e) The underwriters shall have received on the First Closing
Date or the Second Closing Date, as the case may be, the opinion of
Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., as special counsel for the Offerors
that:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act, and all
filings required as of the date hereof under the Delaware Act with
respect to the creation and valid existence of the Trust as a business
trust have been made.
(ii) Under the Trust Agreement and the Delaware Act, the Trust
has the trust power and authority to own property and to conduct its
business, all as described in the Prospectus.
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company, the Property Trustee and each of the
Administrative Trustees, and is enforceable against the Company, the
Property Trustee and each of the Administrative Trustees in accordance
with its terms.
(iv) Under the Trust Agreement and the Delaware Act, the Trust
has the trust power and authority (i) to execute and deliver, and to
perform its obligations under, this Agreement, and (ii) to issue, and to
perform its obligations under, the Preferred Securities and the Common
Securities.
(v) Under the Trust Agreement and the Delaware Act, the
execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its obligations under this Agreement, have
been duly authorized by all necessary trust action on the part of the
Trust.
(vi) Under the Delaware Act, the certificate attached to the
Trust Agreement as Exhibit [E] is an appropriate form of certificate to
evidence ownership of the Preferred Securities. The Preferred
Securities and the Common Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications hereinafter expressed in this paragraph (vi), fully paid
and non-assessable undivided beneficial interests in the assets of the
Trust. The respective holders of the Preferred Securities and the
Common Securities, as beneficial owners of the Trust, will be entitled
to the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation
Law of the State of Delaware. Such counsel may note that the respective
holders of the Preferred Securities and the Common Securities may be
obligated, pursuant to the Trust Agreement, to make certain payments
under the Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act, the
issuance of the Preferred Securities and the Common Securities is not
subject to preemptive or similar rights.
(viii) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the Trust of the
Junior Subordinated Debentures, the execution, delivery and performance
by the Trust of this Agreement and the Guarantee Agreement, the
consummation by the Trust of the transactions contemplated by this
Agreement and compliance by the Trust with its obligations under this
Agreement do not violate (a) any of the provisions of the Certificate of
Trust or the Trust Agreement or (b) any applicable Delaware law or
Delaware administrative regulations.
(f) The Underwriters shall have received from Xxxxxxx and Xxxxxx,
Chicago, Illinois, counsel for the Underwriters, an opinion dated the First
Closing Date or the Second Closing Date, as the case may be, with respect to the
formation of the Trust, the validity of the Preferred Securities, the Indenture,
the Trust Agreement, the Guarantee Agreement, the Expense Agreement, this
Agreement, the Registration Statement, the Prospectus, and other related matters
as the Underwriters may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters.
(g) The Underwriters shall have received on each of the date hereof,
the First Closing Date and any Second Closing Date a signed letter, dated as of
the date hereof, the First Closing Date or any Second Closing Date,
respectively, in form and substance satisfactory to the Underwriters, from
McGladrey & Xxxxxx, LLP to the effect that they
are independent public accountants with respect to the Trust, the Company and
the Subsidiaries within the meaning of the Act and the related rules and
regulations and containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(h) Subsequent to the execution and delivery of this Agreement and
prior to the First Closing Date or the Second Closing Date, as the case may be,
there shall not have been any change or any development involving a reasonably
foreseeable change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Offerors
otherwise than as set forth or contemplated in the Prospectus, the effect of
which, in your reasonable judgment, is material and adverse to the Offerors and
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Preferred Securities being delivered at the First Closing Date
or the Second Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus.
(i) The Underwriters shall have received on the First Closing Date
and the Second Closing Date, as the case may be, a certificate or certificates
of the chief executive officer and the principal financial officer of the
Company, to the effect that, as of such Closing Date each of them severally
represents as follows:
(i) The Prospectus was filed with the Commission pursuant to
Rule 424(b) within the applicable period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 4
of this Agreement; no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been initiated or are, to his knowledge, threatened by the
Commission.
(ii) The representations and warranties of the Company set
forth in Section 1 of this Agreement are true and correct at and as of
the First Closing Date and the Second Closing Date, as the case may be,
and the Company has performed all of its obligations under this
Agreement to be performed at or prior to the First Closing Date and the
Second Closing Date, as the case may be.
(j) The Underwriters shall have received on the First Closing Date
and the Second Closing Date, as the case may be, a certificate or certificates
of the Administrative Trustees, to the effect that, as of such Closing Date each
of them severally represents as follows:
(i) The Prospectus was filed with the Commission pursuant to
Rule 424(b) within the applicable period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 4
of this Agreement; no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been initiated or are, to his knowledge, threatened by the
Commission.
(ii) The representations and warranties of the Trust set forth
in Section 1 of this Agreement are true and correct at and as of the
First Closing Date and the Second Closing Date, as the case may be, and
the Trust has performed all of its obligations under this Agreement to
be performed at or prior to the First Closing Date and the Second
Closing Date, as the case may be.
(k) The Offerors shall have furnished to the Underwriters such
further certificates and documents as the Underwriters may reasonably have
requested.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Underwriters and to Xxxxxxx and
Xxxxxx, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Underwriters by notifying the Trust of such termination in writing or by
telegram at or prior to the First Closing Date. In such event, the Trust and
the Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 7 hereof).
SECTION 7. INDEMNIFICATION. (a) The Offerors jointly and severally
agree to indemnify and hold harmless each Underwriter, each officer and
director thereof, and each person, if any, who controls any Underwriter within
the meaning of the Act, against any losses, claims, damages or liabilities to
which such Underwriter or such persons may became subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus or the Prospectus, including
any amendments or supplements thereto, (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 in light of the circumstances under
which they were made, or (iii) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating in any manner
to, the Preferred Securities or the offering contemplated hereby, and which is
included as part of or referred to in any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arising out of or based upon
matters covered by clause (i) or (ii) above, and will reimburse each Underwriter
and each such controlling person for any legal or other expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Offerors shall not be liable (1) in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement, or
omission or alleged omission, made in the Registration Statement, any
Preliminary Prospectus or the Prospectus, including any amendments or
supplements thereto, in reliance upon and in conformity
with written information furnished to the Offerors by any Underwriter
specifically for use therein or (2) in the case of any matter covered by
clause (iii) above to the extent that it is determined in a final judgment by
a court of competent jurisdiction that such losses, claims, damages or
liabilities resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence, recklessness or willful misconduct.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Offerors and the trustees and directors and officers who have signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Offerors or any such person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and will reimburse any legal or
other expenses reasonably incurred by the Offerors or any such person in
connection with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, that each Underwriter will be liable
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Trust or the Company by or through the Underwriters
specifically for use therein. The obligations of the Underwriters under this
Section 7(b) are several in proportion to their respective underwriting
obligations and not joint.
(c) The Company agrees to indemnify the Trust against all loss,
liability, claim damage and expense whatsoever, which may become due from the
Trust under subsection (a).
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity or
contribution may be sought pursuant to this Section 7, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing. No
indemnification provided for in Section 7(a) or (b) or contribution provided for
in Section 7(e) shall be available with respect to a proceeding to any party who
shall fail to give notice of such proceeding as provided in this Section 7(d) if
the party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the indemnifying
party or parties from any liability which it or they may have to the indemnified
party otherwise than on account of the provisions of Section 7(a) or (b). In
case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party and shall pay
as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay promptly as incurred the
reasonable fees and expenses of the counsel retained by the indemnified party
in the event (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and the indemnified party shall
have reasonably concluded that there may be a conflict between the positions
of the indemnifying party and the indemnified party in conducting the defense
of any such action or that there may be legal defenses available to it or
other indemnified parties which are different from or additional to those
available to the indemnifying party. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm at any time for all such indemnified parties. Such firm shall
be designated in writing by the Underwriters and shall be reasonably
satisfactory to the Offerors in the case of parties indemnified pursuant to
Section 7(a) and shall be designated in writing by the Offerors and shall be
reasonably satisfactory to the Underwriters in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or (b) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Offerors on the one hand and
the Underwriters on the other from the offering of the Preferred Securities.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law, then each 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 of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Offerors on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Offerors bears to
the total underwriting discounts and commissions received by the
underwriters, in each case as set forth on the cover page of the prospectus.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Offerors
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(e) 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 which does not take account of
the equitable considerations referred to above in this Section 7(e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereto)
referred to above in this Section 7(e) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 7(e), no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and commissions
applicable to the Preferred Securities purchased by such Underwriter; and no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this Section 7(e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Offerors under this Section 7 shall be in
addition to any liability which the Offerors may otherwise have, and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the Underwriters may otherwise have.
SECTION 8. NOTICES. All communications hereunder shall be in
writing and, except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriters, to them c/x Xxxx
Xxxxxx Investments, Inc., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Senior Vice President and
Director of Corporate Finance; if to the Company, to Spectrum Bancorporation,
Inc., 00000 Xxx Xxxx Xxxx, Xxxxx Xxx, Xxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxx; and if to the Trust, to it at c/o Spectrum Bancorporation,
Inc., 00000 Xxx Xxxx Xxxx, Xxxxx Xxx, Xxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxx. All notices given by telegram shall be promptly confirmed by
letter. Any notice to the Trust shall also be copied to the Company at the
address previously stated. Any party may change its address for notice purposes
by written notice to the other parties.
SECTION 9. TERMINATION. This Agreement may be terminated by you by
notice to the Offerors as follows:
(a) At any time prior to the time this Agreement shall become
effective as to all its provisions, and any such termination shall be
without liability on the part of the Offerors to the Underwriters
(except for the expenses to be paid or reimbursed pursuant to Section 5
and except to the extent provided in Section 7 hereof) or of any
Underwriter to the Offerors;
(b) At any time prior to the First Closing Date if any of the
following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
any material adverse change in or affecting the condition, financial or
otherwise, of the Trust, the Company and the Subsidiaries taken as a
whole or the business affairs, management, financial position,
shareholders' equity or results of operations of the Trust, the Company
and the Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency after the date
hereof or other national or international calamity or crisis or change
in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the
financial markets of the United States would, in your judgment, make the
offering or delivery of the Preferred Securities impracticable or
inadvisable, (iii) suspension of trading in securities on the New York
Stock Exchange or the American Stock Exchange or limitation on prices
(other than limitations on hours or numbers of days of trading) for
securities on either such Exchange, or a halt or suspension of trading
in securities generally which are quoted on the American Stock Exchange
or (iv) declaration of a banking moratorium by either federal
authorities or New York or Iowa or South Dakota or Missouri state
authorities; or
(c) As provided in Section 6 of this Agreement.
SECTION 10. WRITTEN INFORMATION. For all purposes under this
Agreement (including, without limitation, Section 1, Section 3 and Section 7
hereof), the Offerors understand and agree with each of the Underwriters that
the only written information furnished to the Offerors by the Underwriters
specifically for use in preparation of the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto
is under the caption "Underwriting" in the Preliminary Prospectus and the
Prospectus.
SECTION 11. SUCCESSORS. This Agreement has been and is made solely
for the benefit of and shall be binding upon the Underwriters, the Trust and the
Company and their respective successors, executors, administrators, heirs and
assigns, and the trustees and controlling persons and the officers and directors
of any such controlling person referred to herein, and no other person will have
any right or obligation hereunder. The term "successors" shall not include any
purchaser of the Preferred Securities merely because of such purchase.
SECTION 12. MISCELLANEOUS. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants in this Agreement shall remain in full force and effect
regardless of (a) any termination of this Agreement, (b) any investigation made
by or on behalf of any Underwriter or controlling person thereof, or by or on
behalf of the Offerors or controlling persons thereof and (c) delivery of and
payment for the Preferred Securities under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction
or any provision hereof in any other jurisdiction.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Illinois.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Offerors and the
Underwriters in accordance with its terms.
Very truly yours,
SPECTRUM CAPITAL TRUST I, a Delaware
business trust
By
Xxxxxx X. Xxxxxx
Administrative Trustee
SPECTRUM BANCORPORATION, INC.
By
Xxxxx X. Xxxxxx
Chairman
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
XXXX XXXXXX INVESTMENTS, INC.
As Representative of the several Underwriters
named in Schedule A
By
Xxxxxx X. Xxxxxxxx
Senior Vice President
SCHEDULE A
SCHEDULE OF UNDERWRITERS
NUMBER OF
PREFERRED SECURITIES
UNDERWRITER TO BE PURCHASED
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Xxxx Xxxxxx Investments, Inc
TOTAL: 2,000,000
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