EXHIBIT 1.1
STIFEL FINANCIAL CORP.
(a Delaware corporation) and
STIFEL FINANCIAL CAPITAL TRUST I
(a Delaware statutory business trust)
$25,000,000
__% Cumulative Trust Preferred Securities
UNDERWRITING AGREEMENT
----------------------
April __, 2002
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
as Representatives of the Underwriters Named in Schedule A,
c/x Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Managing Director
Ladies and Gentlemen:
Stifel Financial Capital Trust I (the "Trust"), a statutory business trust
organized under the Delaware Business Trust Act, 12 Del. C. ss.ss.3801 et seq.
(the "Delaware Act"), and Stifel Financial Corp., a Delaware corporation (the
"Company" and together with the Trust, the "Offerors"), confirm their agreement
(the "Agreement") with Xxxx Xxxxx Xxxx Xxxxxx, Incorporated ("Xxxx Xxxxx"),
Xxxxxx, Xxxxxxxx & Company, Incorporated ("Xxxxxx Xxxxxxxx") and Friedman,
Billings, Xxxxxx & Co., Inc., as Representatives of the several underwriters
named in Schedule A hereto (each an "Underwriter," and together, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 of this Agreement), with respect to the
issuance and sale by the Trust of 1,000,000 ___% Cumulative Trust Preferred
Securities (liquidation amount $25 per preferred security), and the purchase by
the Underwriters, acting severally and not jointly, of the respective preferred
securities set forth in Schedule A hereto, and the grant by the Trust to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) of this Agreement to purchase all or any part of 150,000 additional
preferred securities solely to cover overallotments, if any. In this Agreement,
the 1,000,000 preferred securities (the "Initial Preferred Securities") to be
purchased by the Underwriters and all or any part of the 150,000 preferred
securities subject to the option described in Section 2(b) of this Agreement
(the "Optional Preferred Securities") are called, collectively, the "Preferred
Securities." The Preferred Securities are more fully described in the Prospectus
(as defined below).
The Preferred Securities will be guaranteed by the Company, to the
extent set forth in the Prospectus (as defined below), with respect to
distributions and amounts payable upon
liquidation or redemption (the "Preferred Securities Guarantee") pursuant to the
Preferred Securities Guarantee Agreement (the "Preferred Securities Guarantee
Agreement") to be dated as of the Closing Time (as defined below) executed and
delivered by the Company and Wilmington Trust Company (the "Guarantee Trustee"),
a Delaware banking corporation, not in its individual capacity but solely as
trustee for the benefit of the holders from time to time of the Preferred
Securities. The Company and the Trust each understand that the Underwriters
propose to make a public offering of the Preferred Securities as soon as they
deem advisable after this Agreement has been executed and delivered, and the
Declaration (as defined in this Agreement), the Indenture (as defined in this
Agreement), and the Preferred Securities Guarantee Agreement have been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). The entire
proceeds from the sale of the Preferred Securities will be combined with the
entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities") and will be used by the Trust to purchase
the __% Junior Subordinated Debentures due 2032 (the "Subordinated Debentures")
issued by the Company. The Preferred Securities and the Common Securities will
be issued pursuant to the Amended and Restated Trust Agreement, to be dated as
of the Closing Time (the "Declaration"), among the Company, as depositor,
Wilmington Trust Company, as property trustee (the "Property Trustee"),
Wilmington Trust Company, as Delaware trustee (the "Delaware Trustee"), and
Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxx, as administrative
trustees (the "Administrative Trustees" and together with the Property Trustee
and the Delaware Trustee, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Subordinated
Debentures will be issued pursuant to an indenture, to be dated as of the
Closing Time (the "Indenture"), between the Company and Wilmington Trust
Company, as debenture trustee (the "Debenture Trustee").
The Preferred Securities, the Preferred Securities Guarantee and the
Subordinated Debentures are collectively referred to in this Agreement as the
"Securities." The Indenture, the Declaration and this Agreement are collectively
referred to in this Agreement as the "Operative Documents." Capitalized terms
used in this Agreement without definition have the respective meanings specified
in the Prospectus.
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, as amended (Nos. 333-84952
and 333-84952-01) covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus. Promptly after execution and delivery of this Agreement,
the Offerors will either (i) prepare and file a prospectus in accordance with
the provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b) of
Rule 424 ("Rule 424(b)") of the 1933 Act Regulations, (ii) if the Offerors have
elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare
and file a term sheet (a "Term Sheet") in accordance with the provisions of Rule
434 and Rule 424(b) or (iii) a final prospectus in accordance with Rules 415 and
424(b). The information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration statement
at the time it became effective: (a) pursuant to paragraph (b) of Rule 430A is
referred to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule
434 is referred to as "Rule 434 Information." Each prospectus used before such
registration statement became
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effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is in this Agreement
called a "preliminary prospectus." Such registration statement, including the
exhibits thereto and schedules thereto, if any, and the documents incorporated
by reference therein, at the time it became effective and including the Rule
430A Information and the Rule 434 Information, as applicable, is in this
Agreement called the "Registration Statement." The final prospectus in the form
first furnished to the Underwriters for use in connection with the offering of
the Preferred Securities is in this Agreement called the "Prospectus." If Rule
434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated April 9, 2002, together with the Term Sheet and all references
in this Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any Term Sheet or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, and all references in this Agreement to amendments or supplements to
the Registration Statement, any preliminary prospectus or the Prospectus shall
be deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), which is incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectus.
SECTION 1. Representations and Warranties. (a) Offerors' Representations
and Warranties. The Offerors jointly and severally represent and warrant to each
Underwriter as of the date of this Agreement and as of the Closing Time referred
to in Section 2(c) of this Agreement and as of each Date of Delivery (if any)
referred to in Section 2(b) of this Agreement, and agree with each Underwriter
as follows:
(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. The Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated by the
Commission, any state or other jurisdiction or other regulatory body, and
any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing Time
(and, if any Optional Preferred Securities are purchased, at the Date of
Delivery), the Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and did not
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and will 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 not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any
Optional Preferred Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectus shall not be "materially
different," as such term is used in Rule 434, from the prospectus included
in the Registration Statement at the time it became effective. The
representations and warranties in this subsection shall not apply (A) to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Trust or the Company in writing by the Underwriters expressly for use in
the Registration Statement or Prospectus (or any supplement thereto)
including without limitation, the information set forth in the first
paragraph, the table following the first paragraph, the second and third
paragraphs, the table following the sixth paragraph, the seventh, ninth,
tenth, and eleventh paragraphs of the section of the Prospectus captioned
"Underwriting" (the "Underwriters' Information") and (B) that part of the
Registration Statement which shall constitute the Statements of Eligibility
and Qualification (Forms T-1) under the 1939 Act.
No order preventing or suspending the use of any Prospectus (or,
if the Prospectus is not in existence, the preliminary prospectus) has been
issued by the Commission, any state or other jurisdiction or other
regulatory body, nor has the Commission, any state or other jurisdiction or
other regulatory body, to the knowledge of the Offerors, threatened to
issue such an order or instituted proceedings for that purpose. Each
preliminary prospectus, and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, and the Prospectus filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this
offering will, at the time of such delivery, be substantively identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and
Prospectus at the time they were filed with the Commission (A) complied in
all material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act Regulations")
and, (B) when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time the
Prospectus was issued and at the Closing Time, do not and will not include
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
not misleading.
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(iii) Independent Accountants. Deloitte & Touche LLP, who have
certified the Company's historical consolidated financial statements,
including the notes thereto, incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants of the
Company within the meaning of the 1933 Act and the rules and regulations of
the Commission under the 1933 Act Regulations.
(iv) Financial Statements. The consolidated historical
financial statements, together with the related schedules and notes, of the
Company and its consolidated subsidiaries incorporated by reference in the
Registration Statement and the Prospectus present fairly, in all material
respects, the consolidated financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statements of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") in the United States applied on a consistent
basis throughout the periods involved, except as disclosed in the notes to
such financial statements; the supporting schedules, if any, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly, in accordance with GAAP, in all material respects, the
information required to be stated therein; and the selected consolidated
financial data included in the Registration Statement and the Prospectus
present fairly, in all material respects, the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements incorporated by reference in the Registration Statement and the
Prospectus.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Prospectus, except
as otherwise stated therein or contemplated thereby, there has not been (A)
any material adverse change in, or any development which is reasonably
likely to have a material adverse effect on, the condition, financial or
otherwise, or in the earnings, business affairs or business prospects or
results of operations of the Trust or of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course
of business (a "Material Adverse Effect"), (B) any transaction entered into
by the Trust, the Company or any of its subsidiaries, other than in the
ordinary course of business, that is material to the Trust, or the Company
and its subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock, other than regular dividends on the Company's common
stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, and has full corporate power and
authority under such laws to own, lease and operate its properties and to
conduct its business as now being conducted and as described in the
Prospectus (or, if no Prospectus is in existence, the preliminary
prospectus). The Company has full corporate power and authority to enter
into and perform its obligations under each of the Operative Documents to
which it is a party.
(vii) Subsidiaries. Each of the Company's subsidiaries is
validly existing and has full corporate power and authority to own, lease
and operate its
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properties and to conduct its business as now being conducted and as
described in the Prospectus. Each of the Company's subsidiaries is listed
on Schedule B hereto (the "Subsidiaries"), which includes Xxxxxx Xxxxxxxx
and Century Securities Associates, Inc. (the "Broker-Dealer Subsidiaries"),
which are the only two Subsidiaries operating as registered broker-dealers.
(viii) Good Standing of Broker-Dealer Subsidiaries; Foreign
Qualification. Each of the Broker-Dealer Subsidiaries has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Missouri; and each of the Company and the
Broker-Dealer Subsidiaries is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect.
(ix) Capital Stock Duly Authorized and Validly Issued. All of
the issued and outstanding capital stock or equity securities, as the case
may be, of Xxxxxx Xxxxxxxx has been duly authorized and validly issued, is
fully paid and non-assessable, and all of the shares owned by the Company,
directly or indirectly, of each of the Company's Subsidiaries are held free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
restriction upon voting or transfer, claim or equity of any kind; none of
such outstanding shares of capital stock or equity securities of the
Company's Subsidiaries was issued in violation of any preemptive or similar
rights arising by operation of law, or under the charter or by-laws of any
such Subsidiary or under any agreement to which the Company or any of its
Subsidiaries is a party. There are no outstanding rights, warrants or
options to acquire or instruments convertible into or exchangeable for any
capital stock, equity securities or other ownership interests of the
Company's Subsidiaries.
(x) Broker-Dealer Registration. (a) Xxxxxx Xxxxxxxx is
registered as a broker-dealer with the Commission and under the laws of all
fifty U.S. states, the District of Columbia and Puerto Rico, is a member of
the NASD, the New York Stock Exchange, the American Stock Exchange, the
Chicago Stock Exchange, the Philadelphia Exchange, the Chicago Board
Options Exchange, the Midwest Options Exchange, the Philadelphia Board of
Trade and the New York Futures Exchange, Inc., and is in compliance with
all applicable laws, rules, regulations, orders, by-laws and similar
requirements in connection with such registration and memberships,
including without limitation Rule 15c-1 under the 1934 Act (the "Net
Capital Rule"), except where the failure to be so registered or in such
compliance would not have a Material Adverse Effect; and (b) Century
Securities Associates, Inc. ("CSA") is a registered broker-dealer with the
Commission and under the laws of all fifty U.S. states and the District of
Columbia, is a member of the NASD and is in compliance with all applicable
laws, rules, regulations, orders, by-laws and similar requirements in
connection with such registration and membership, including without
limitation the Net Capital Rule, except where the failure to be so
registered or in such compliance would not have a Material Adverse Effect.
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(xi) Investment Adviser Registration. Each of Xxxxxx Xxxxxxxx
and CSA is registered as an investment adviser with the Commission, is
registered or exempt from registration as an investment adviser in all
fifty states, the District of Columbia and Puerto Rico, and is in
compliance in all material respects with all applicable laws, rules,
regulations, orders and similar requirements in connection therewith except
where the failure to be so registered or in such compliance would not have
a Material Adverse Effect.
(xii) Capitalization. The authorized, issued and outstanding
capital stock of the Company as of December 31, 2001 is as set forth in the
Prospectus in the column entitled "Actual" under the caption
"Capitalization" (and there have not been any subsequent issuances of
capital stock of the Company except for subsequent issuances, if any,
pursuant to any dividend reinvestment plan, reservations, agreements,
conversions, stock dividends or employee or director benefit plans); the
issued and outstanding capital stock of the Company has been duly
authorized and validly issued and is fully paid and nonassessable and no
shares were issued in violation of the preemptive rights of any holder
thereof. Except in each case as disclosed in the Prospectus or issued or
issuable pursuant to compensatory plans or other programs disclosed in the
Prospectus, there are no outstanding rights, options or warrants to acquire
any securities or other ownership interests of the Company or the Trust,
and there are no outstanding instruments or securities convertible into or
exchangeable for any securities of the Company or the Trust and no
restrictions upon the voting or transfer of any capital stock of the
Company or equity securities of the Trust pursuant to the Company's
corporate charter or bylaws, the Declaration or any agreement or other
instrument to which an Offeror is a party or by which an Offeror is bound.
(xiii) Good Standing of the Trust. The Trust has been duly
created and is validly existing in good standing as a business trust under
the Delaware Act with all requisite trust power and authority to own
property and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Operative Documents, as
applicable, and the Preferred Securities and under this Agreement, and to
consummate the transactions herein contemplated; the Trust is not a party
to or otherwise bound by any material agreement other than this Agreement,
the Declaration and the agreements and instruments contemplated by the
Declaration and described in the Prospectus; and the Trust is and will be,
under current law, classified for United States federal income tax purposes
as a grantor trust and not as an association taxable as a corporation; the
Trust has no subsidiaries and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business
or the ownership of its property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a Material Adverse Effect; the Trust has conducted and will conduct no
business other than the transactions contemplated by the Operative
Documents and described in the Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions contemplated
by this Agreement and the Declaration and described in the Prospectus; the
Trust is not a party to or subject to any action, suit or proceeding of any
nature; and the Trust is, and at the Closing Time or any Date of Delivery
will be, treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
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(xiv) Authorization of Common Securities. The Common Securities
have been duly authorized for issuance by the Trust pursuant to the
Declaration and, when issued, executed and authenticated in accordance with
the Declaration and delivered by the Trust to the Company against payment
therefor in accordance with the Declaration, will be validly issued and
fully paid and nonassessable undivided beneficial interests in the assets
of the Trust. The issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time or any Date of
Delivery, 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, mortgage, pledge, lien, encumbrance, claim or equitable right.
(xv) Authorization of Preferred Securities. The Preferred
Securities have been duly authorized for issuance by the Trust pursuant to
the Declaration and, when issued, executed and authenticated in accordance
with the Declaration and delivered against payment therefor as provided in
this Agreement, will be validly issued and fully paid and non-assessable
undivided beneficial ownership interests in the assets of the Trust, will
be entitled to the benefits of the Trust Agreement, and will conform in all
material respects to the description thereof in the Prospectus. The
issuance of the Preferred Securities will not be subject to any security
interest, lien, mortgage, pledge, encumbrance, restriction upon voting or
transfer, preemptive or other similar rights.
(xvi) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Offerors, and assuming the due
authorization, execution and delivery of this Agreement by the
Representatives, will constitute the valid and legally binding agreement
and obligation of the Offerors enforceable against the Offerors in
accordance with its terms, except to the extent that enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting creditors' rights
generally, and (B) general principles of equity, regardless of whether
enforceability is considered in a proceeding at law or in equity
(collectively, the "Enforceability Exceptions").
(xvii) Authorization of Declaration. The Declaration has been
qualified under the 1939 Act and has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by the
Company and the Trustees, and assuming due authorization, execution and
delivery of the Declaration by the Trustees, the Declaration will, at the
Closing Time, be a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms except to the
extent that enforceability may be limited by any of the Enforceability
Exceptions.
(xviii) Authorization of Guarantee. The Preferred Securities
Guarantee has been qualified under the 1939 Act and has been duly
authorized by the Company; at the Closing Time, the Preferred Securities
Guarantee will have been duly executed and delivered by the Company, and
assuming due authorization, execution and delivery of the Preferred
Securities Guarantee by the Guarantee Trustee, will constitute a valid and
legally binding agreement and obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforceability may be
8
limited by any of the Enforceability Exceptions; and the Preferred
Securities Guarantee will conform in all material respects to the
description thereof in the Prospectus.
(xix) Authorization of Indenture. The Indenture has been
qualified under the 1939 Act and has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by the
Company, and assuming due authorization and delivery of the Indenture by
the Debenture Trustee, will constitute a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforceability thereof may be
limited by any of the Enforceability Exceptions; and the Indenture will
conform in all material respects to the description thereof in the
Prospectus.
(xx) Authorization of Subordinated Debentures. The
Subordinated Debentures have been duly authorized by the Company; at the
Closing Time, the Subordinated Debentures will have been duly and validly
executed by the Company and, when authenticated in the manner provided for
in the Indenture and delivered by the Company to the Trust against payment
therefor as described in the Prospectus, will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforceability
thereof may be limited by any of the Enforceability Exceptions; and the
Subordinated Debentures will be in the form contemplated by, and entitled
to the benefits of, the Indenture and will conform in all material respects
to the description thereof in the Prospectus and will be owned by the Trust
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon transfer, preemptive rights, claim or equity.
(xxi) Agreement as to Expenses and Liabilities. The Agreement
as to Expenses and Liabilities between the Company and the Trust (the
"Expense Agreement") has been duly authorized, and, when duly executed and
delivered by the Company, will constitute a valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforceability may be limited by
any of the Enforceability Exceptions; and the Expense Agreement will
conform in all material respects to the description thereof contained in
the Prospectus.
(xxii) Authorization of Trustees. Each of the Administrative
Trustees of the Trust is an officer of the Company and has been duly
authorized by the Company to act in such capacity.
(xxiii) Trust and Company Not Investment Company. Neither the
Trust nor the Company is, and immediately following of the transactions
contemplated hereby and the application of the net proceeds as described in
the Prospectus under the caption "Use of Proceeds" neither the Trust nor
the Company will be, an "investment company" or a company "controlled" by
an "investment company" which is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxiv) Absence of Defaults and Conflicts. The Trust is not in
violation of the Trust's certificate of trust filed with the State of
Delaware (the "Trust Certificate") or the Declaration, and neither the
Company nor any of the Broker-Dealer Subsidiaries is
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in breach or violation of its charter, by-laws or other governing
documents; none of the Trust, the Company or any of the Broker-Dealer
Subsidiaries is in violation, breach or default in the performance or
observance of any term, obligation, agreement, covenant, representation,
warranty or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease, license, Governmental
License (as defined below) or other agreement or instrument to which it is
a party or by which it or any of them may be bound, or to which any of its
property or assets is subject (collectively, "Agreements and Instruments")
except for such violation, breach or default under such Agreements and
Instruments that would not result in a Material Adverse Effect; and (A) the
execution, delivery and performance of the Operative Documents by the Trust
or the Company, as the case may be, (B) the issuance, sale and delivery of
the Preferred Securities, the Subordinated Debentures and the Preferred
Securities Guarantee, (C) the consummation of the transactions contemplated
by the Operative Documents and (D) compliance by the Offerors with the
terms of the Operative Documents to which they are a party, have been duly
authorized by all necessary corporate action on the part of the Company
and, with respect to the matters described in sub-clauses (A), (B), (C) and
(D) above, at the Closing Time, will have been duly authorized by all
necessary action on the part of the Trust, and none of the actions referred
to in sub-clauses (A) through (D) above violate, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, and will not, whether with or without the giving of notice or
passage of time or both, violate, conflict with or constitute a breach of,
or default or Repayment Event under, or result in the creation or
imposition of any security interest, mortgage, pledge, lien, charge,
encumbrance or equitable right upon any property or assets of the Trust,
the Company or any of the Company's Broker-Dealer Subsidiaries pursuant to,
the Agreements and Instruments (except for such conflicts, violations,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will any such action result in
any violation of the provisions of the charter, by-laws or other governing
documents, of the Company or any of the Broker-Dealer Subsidiaries or the
Declaration or the Trust Certificate or violation by the Company or any of
the Broker-Dealer Subsidiaries of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, governmental
or regulatory authority, agency or instrumentality or court, domestic or
foreign (each, a "Governmental Entity"). As used in this Agreement, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Trust, the
Company or any of the Company's Broker-Dealer Subsidiaries.
(xxv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of the Broker-Dealer Subsidiaries exists
or, to the knowledge of the Company, is imminent or has been threatened,
which may reasonably be expected to result in a Material Adverse Effect, or
which is required to be disclosed in the Prospectus.
(xxvi) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry, charge or
investigation before or brought by any Governmental Entity now pending, or,
to the knowledge of the Trust or the Company, threatened, against the
Trust, the Company or any of the Broker-Dealer
10
Subsidiaries or of which any of their respective property or assets is the
subject, wherein an unfavorable decision, ruling or finding, individually
or in the aggregate, in the reasonable judgment of the Trust or the Company
is likely to result in a Material Adverse Effect, or which in the
reasonable judgment of the Company might materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated by the Operative Documents or the performance by the Trust or
the Company of its obligations hereunder or thereunder, or which is
required to be disclosed in the Registration Statement or the Prospectus
and is not so disclosed.
(xxvii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any Governmental Entity, other than those that
have been made or obtained, is necessary or required for the performance by
the Company or the Trust of their respective obligations under each of the
Operative Documents, as applicable, or the consummation by the Trust and
the Company of the transactions contemplated by the Operative Documents.
(xxviii) Possession of Licenses and Permits. The Trust, the
Company and the Broker-Dealer Subsidiaries possess such material permits,
licenses, approvals, consents and other governmental and regulatory
authorizations from all appropriate federal, state, local or other public
authorities (collectively, "Governmental Licenses") necessary to own and
lease their properties and to conduct the business now operated by them in
the manner described in and contemplated by the Prospectus; the Trust, the
Company and the Broker-Dealer Subsidiaries are in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not have a Material Adverse Effect; and each of the Company and the
Broker-Dealer Subsidiaries is in all material respects complying therewith;
and neither the Trust, the Company nor any Broker-Dealer Subsidiary of the
Company has received any notice or otherwise has knowledge of any
proceedings or actions relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, in the
reasonable judgment of the Company, is likely to result in a Material
Adverse Effect.
(xxix) Accuracy of Exhibits. There are no agreements, contracts
or other documents of a character described in Item 601 of Regulation S-K
promulgated by the Commission required to be filed as exhibits, or any
statutes or regulations which are required to be described in, the
Registration Statement, the Prospectus or the documents incorporated by
reference therein, which have not been so described and/or filed as
required.
(xxx) Title to Property. The Company and the Broker-Dealer
Subsidiaries have good and marketable title to all of their respective fee
owned properties, in each case free and clear of all security interests,
liens, mortgages, pledges, encumbrances, restrictions, claims and defects,
except as stated in the Prospectus,
11
including the documents incorporated therein by reference, or to the extent
the failure to have such title or the existence of such security interests,
liens, mortgages, pledges, encumbrances, restrictions, claims or defects
would not have a Material Adverse Effect; and all of the leases and
subleases material to the business of the Trust, the Company and the
Broker-Dealer Subsidiaries considered as one enterprise, and under which
the Offerors or any of the Broker-Dealer Subsidiaries of the Company holds
leasehold interests in any of the properties that are material to their
business, are valid, existing and in full force and effect, and neither the
Offerors nor any of the Company's Broker-Dealer Subsidiaries has any notice
of any material claim of any sort that has been asserted by anyone adverse
to the rights of the Offerors or any of the Company's Broker-Dealer
Subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of such corporation to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(xxxi) Relationships. No relationship, direct or indirect,
exists between or among the Company or any of the Broker-Dealer
Subsidiaries on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or any of the Broker-Dealer
Subsidiaries on the other hand, which is required by the 1933 Act to be
described in the Prospectus or in any document incorporated by reference
into the Prospectus which is not so described.
(xxxii) Compliance with Laws. The Company and the Broker-Dealer
Subsidiaries have complied in all material respects with all federal, state
and local statutes, regulations, ordinances and rules as now in effect and
applicable to the ownership and operation of their properties or the
conduct of their businesses as described in and contemplated by the
Registration Statement and the Prospectus and as currently being conducted,
except in each case where any such noncompliance would not have a Material
Adverse Effect. Neither the Company nor any Broker-Dealer Subsidiary is
subject to a directive from the Commission, the NASD, the New York Stock
Exchange, the Chicago Stock Exchange or any other governmental authority to
make any material changes in the method of conducting its business and no
such directive is pending or threatened by such authorities.
(xxxiii) Accurate Books and Records. The Company and its
subsidiaries make and keep materially accurate books and records reflecting
their respective assets and maintain internal accounting controls which
provide reasonable assurance that (a) transactions are executed with
management's authorization; (b) transactions are recorded as necessary to
permit preparation of the Company's consolidated financial statements and
to maintain accountability for the assets of the Company and its
subsidiaries; (c) access to the assets of the Company and its subsidiaries
is permitted only in accordance with management's authorization; and (d)
the reported accountability of the assets of the Company and its
subsidiaries is compared with existing assets at reasonable intervals.
(xxxiv) Changes Since Filing Registration Statement. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein:
12
(A) neither the Company nor its subsidiaries has sustained
any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or
decree, which in any such case is material to the condition
(financial or otherwise), earnings, affairs, business, prospects,
or results of operations of the Company and the subsidiaries on a
consolidated basis;
(B) neither the Company nor its subsidiaries has incurred
any liabilities or obligations, direct or contingent, or entered
into any material transactions, other than in the ordinary course
of business, which is material to the condition (financial or
otherwise), earnings, affairs, business, prospects, or results of
operations of the Company and the subsidiaries on a consolidated
basis;
(C) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital
leases or, other than in the ordinary course of business,
short-term borrowings of the Company or the subsidiaries; and
(D) there has not occurred any other event and there has
arisen no set of circumstances required by the 1933 Act or the
1933 Act Regulations to be disclosed in the Registration
Statement or Prospectus which has not been so set forth in the
Registration Statement or such Prospectus as fairly and
accurately summarized therein.
(xxxv) Stabilization Activities. Neither of the Offerors has
taken, directly or indirectly, any action designed to result in or which
has constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
in connection with the sale or resale of the Shares in violation of the
Commission's rules and regulations, including, but not limited to,
Regulation M, and the Company is not aware of any such action taken or to
be taken by any affiliate of the Company.
(xxxvi) Intellectual Property Rights. The Company and the
Broker-Dealer Subsidiaries own, or possess adequate rights to use, all
patents, copyrights, trademarks, service marks, trade names and other
rights necessary to conduct the businesses now conducted by them in all
material respects or as described in the Prospectus (or, if the Prospectus
is not in existence, the Preliminary Prospectus) and neither the Company
nor any of the Broker-Dealer Subsidiaries has received any notice of
infringement or conflict with asserted rights of others with respect to any
patents, copyrights, trademarks, service marks, trade names or other rights
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect, and the
Company does not know of any basis for any such infringement or conflict.
13
(xxxvii) Filing of Tax Returns. The Company and the Broker-Dealer
Subsidiaries have timely and properly prepared and filed all necessary
federal, state, local and foreign tax returns which are required to be
filed and have paid all taxes shown as due thereon and have paid all other
taxes and assessments to the extent that the same shall have become due,
except such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a Material Adverse
Effect. The Company has no knowledge of any tax deficiency which has been
or might be assessed against the Company or the Broker-Dealer Subsidiaries
which, if the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect.
(xxxviii) No Registration Rights. No person has the right to
request or require the Company to register any securities for offering and
sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Preferred
Securities, except as disclosed in the Prospectus.
(xxxix) New York Stock Exchange Listing. The Preferred Securities
have been approved for listing on The New York Stock Exchange, and the
Preferred Securities, when issued, will be eligible for trading thereon.
(xl) Dividend Restrictions; Loans. Except as described in or
contemplated by the Prospectus, there are no material contractual
encumbrances or restrictions or material legal restrictions required to be
described therein, on the ability of the Company's Broker-Dealer
Subsidiaries (A) to pay dividends or make any other distributions on its
capital stock or to pay any indebtedness owed to the Company, (B) to make
any loans or advances to, or investments in, the Company or (C) to transfer
any of its property or assets to the Company.
(xli) Compliance with ERISA. Neither the Company nor any
Subsidiary has any liability under any "pension plan," as defined in the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"). The
employee benefit plans, including employee welfare benefit plans, of the
Company and each of its Subsidiaries, if any (the "Employee Plans"), have
been operated in material compliance with the applicable provisions of
ERISA, the Internal Revenue Code of 1986, as amended (the "Code"), all
regulations, rulings and announcements promulgated or issued thereunder and
all other applicable governmental laws and regulations (except to the
extent such noncompliance would not, in the aggregate, have a Material
Adverse Effect). No reportable event under Section 4043(c) of ERISA has
occurred with respect to any Employee Plan of the Company or the
Subsidiaries for which the reporting requirements have not been waived by
the Pension Benefit Guaranty Corporation. No prohibited transaction under
Section 406 of ERISA, for which an exemption does not apply, has occurred
with respect to any Employee Plan of the Company or any of the
Subsidiaries. There are no pending or, to the knowledge of the Company,
threatened, claims by or on behalf of any Employee Plan, by any employee or
beneficiary covered under any such Employee Plan or by any governmental
authority or otherwise involving such Employee Plans or any of their
respective fiduciaries (other than for routine claims for benefits). All
Employee Plans that are group health plans have been operated in material
14
compliance with the group health plan continuation coverage requirements of
Section 4980B of the Code.
(xlii) Finder's Fees. Other than as contemplated by this
Agreement and as disclosed in the Prospectus, 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 herein.
(xliii) Compliance with Foreign Corrupt Practices Act. None of
the Company, Xxxxxx Xxxxxxxx or, to the best knowledge of the Offerors, any
other person associated with or acting on behalf of the Company or Xxxxxx
Xxxxxxxx, including, without limitation, any director, officer, agent, or
employee of Xxxxxx Xxxxxxxx or the Company has, directly or indirectly,
while acting on behalf of such Company or Xxxxxx Xxxxxxxx (i) used any
corporate funds for unlawful contributions, gifts, entertainment, or other
unlawful expenses relating to political activity; (ii) made any unlawful
contribution to any candidate for foreign or domestic office, or to any
foreign or domestic government officials or employees or other persons
charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction
thereof or to foreign or domestic political parties or campaigns from
corporate funds, or failed to disclose fully any contribution in violation
of law; (iii) violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended; or (iv) made any other payment of funds of the Company
or Xxxxxx Xxxxxxxx or retained any funds which constitute a material
violation of any law, rule or regulation or which was or is required to be
disclosed in the Prospectus pursuant to the requirements of the 1933 Act or
the 1933 Act Regulations.
(xliv) Future Acquisitions. Neither the Company nor any
Broker-Dealer Subsidiary has any agreement or understanding with any person
(A) concerning the future acquisition by the Company or any Subsidiary of a
controlling interest in such entity or (B) concerning the future
acquisition by any person of a controlling interest in the Company or any
Broker-Dealer Subsidiary, in either case that is required by the 1933 Act
or the 1933 Act Regulations to be disclosed by the Company that is not
disclosed in the Prospectus.
(xlv) Insurance. The Company and the Broker-Dealer Subsidiaries
maintain insurance covering in all material respects their properties,
personnel and business. Such insurance insures against such losses and
risks as, in the judgment of the executive officers of the Company, are
adequate to protect in all material respects the Company and the
Broker-Dealer Subsidiaries and their businesses. Neither the Company nor
any of the Broker-Dealer Subsidiaries has received notice from any insurer
or agent of such insurer that substantial capital improvements or other
expenditures shall have to be made in order to continue such insurance. All
such insurance is outstanding and duly in force on the date hereof and
shall be outstanding and duly in force at the Closing Time and, if
applicable, any Date of Delivery, with such exceptions as would not have a
Material Adverse Effect.
15
(b) Certificates. Any certificate signed by any Trustee of the Trust
or any duly authorized officer of the Company or any Subsidiary of the Company
in such person's capacity as such officer and delivered to you or to counsel for
the Underwriters shall be deemed a representation and warranty by the Trust or
the Company, as the case may be, to the Underwriters as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a) Initial
Preferred Securities. On the basis of the representations and warranties
contained in this Agreement and subject to the terms and conditions set forth in
this Agreement, the Trust agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Trust, at the purchase price of $25 per Initial Preferred Security, the
number of Initial Preferred Securities set forth in Schedule A opposite the name
of that Underwriter, plus any additional number of Initial Preferred Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 of this Agreement, subject, in each case, to such
adjustments among the Underwriters as they in their sole discretion shall make
to eliminate any sales or purchases of fractional securities. As compensation to
the Underwriters for their commitments under this Agreement and because the
proceeds of the sale of the Preferred Securities will be used to purchase the
Subordinated Debentures, the Company hereby agrees to pay at the Closing Time
and at any Date of Delivery to the Underwriters by wire transfer of immediately
available funds a commission of $ per Preferred Security sold.
(b) Optional Preferred Securities. In addition, on the basis of the
representations and warranties in this Agreement contained and subject to the
terms and conditions set forth in this Agreement, the Trust hereby grants an
option to the Underwriters, severally and not jointly, to purchase up to 150,000
Optional Preferred Securities at the price per share set forth in the
immediately preceding paragraph. The option hereby granted will expire at the
close of business, St. Louis, Missouri time, on the 30th day after the date of
this Agreement and may be exercised in whole or in part from time to time only
for the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Initial Preferred Securities upon notice by
the Underwriters to the Trust and the Company setting forth the number of
Optional Preferred Securities as to which the Underwriters are then exercising
the option and the time and date of payment and delivery for such Optional
Preferred Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Underwriters, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time. If the option is exercised as to all or any portion of the
Optional Preferred Securities, each of the Underwriters, acting severally and
not jointly, will purchase and the Trust agrees to sell to the Underwriters that
proportion of the total number of Optional Preferred Securities to be sold by
the Trust which the number of Initial Preferred Securities set forth in Schedule
A opposite the name of such Underwriter bears to the total number of Initial
Preferred Securities, subject in each case to such adjustments as the
Underwriters in their discretion shall make to eliminate any sales or purchases
of fractional shares.
(c) Payment. Payment of the purchase price for the Initial Preferred
Securities shall be made at the offices of Xxxxx Xxxx LLP, St. Louis, Missouri,
or at such other place as shall be agreed upon by the Underwriters and the
Offerors, at 10:00 a.m. (Central time) on the third business day (or, if pricing
occurs after 4:30 p.m. (Eastern time) on any given day,
16
the fourth business day) after the date of this Agreement (unless postponed in
accordance with the provisions of Section 10 of this Agreement), or such other
time not later than ten (10) business days after such date as shall be agreed
upon by the Underwriters and the Offerors (such time and date of payment and
delivery being in this Agreement called the "Closing Time").
In addition, if any or all of the Optional Preferred Securities are
purchased by the Underwriters, then payment of the purchase price for such
Optional Preferred Securities shall be made at the above-mentioned offices, or
at such other place as shall be agreed upon by the Underwriters and the Offerors
on each Date of Delivery as specified in the notice from the Underwriters to the
Offerors.
Payment shall be made to the Trust by wire transfer of immediately
available funds, to the order of the Trust, to a bank designated by the Company,
against delivery to the Underwriters of certificates for the Preferred
Securities to be purchased by them. It is understood that each Underwriter has
authorized Xxxx Xxxxx, for its account, to accept delivery of, receipt for, and
make payment of the Purchase Price for, the Initial Preferred Securities and the
Optional Preferred Securities, if any, which it has agreed to purchase. Xxxx
Xxxxx, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Initial
Preferred Securities or the Optional Preferred Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Preferred Securities and the Optional Preferred Securities, if any, to be
purchased by the Underwriters shall be delivered by the Offerors registered in
the name of Cede & Co., nominee for the Depository Trust Company. All such
certificates shall be made available by the Offerors to you for inspection,
checking and packaging by the Underwriters at such office as you may designate
in writing not later than 10:00 a.m. (Eastern Time), on the last business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Offerors. The Offerors jointly and severally
covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company and the Trust, subject to Section 3(b) of this Agreement, will
comply with the requirements of Rule 430A or Rule 434, as applicable, and will
notify the Underwriters promptly, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Preferred Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company and the Trust will promptly effect the filings
necessary pursuant to
17
Rule 424(b) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company and the Trust will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company and the Trust will give the
Underwriters notice of their intention to file or prepare any amendment to the
Registration Statement, any Term Sheet or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, whether pursuant to the 1933 Act or
otherwise, will furnish the Underwriters with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Underwriters or
counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Offerors have furnished
or will deliver to the Underwriters and counsel for the Underwriters, without
charge, two signed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Underwriters, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be substantively identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Offerors, as promptly as possible,
will furnish to the Underwriters, without charge, such number of copies of the
preliminary prospectus, the Prospectus and any amendments and supplements
thereto and documents incorporated by reference therein as the Underwriters may
reasonably request, and the Offerors hereby consent to the use of such copies
for purposes permitted by the 1933 Act. The Offerors will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be substantively identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Offerors will
comply in all material respects with the 1933 Act and the 1933 Act Regulations
so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Preferred Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
18
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Offerors will promptly prepare and file with the Commission, subject to Section
3(b) of this Agreement, such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Offerors will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. If applicable, the Company and the Trust
will each use its commercially reasonable efforts, in cooperation with the
Underwriters, to qualify the Preferred Securities for offering and sale under
the securities laws of such states and other jurisdictions in the United States
as the Underwriters may reasonably designate and to maintain such qualifications
in effect so long as may be reasonably advisable for distribution of the
Preferred Securities; provided, however, that neither the Company nor the Trust
shall be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. The Offerors will notify you promptly of, and confirm in writing, the
suspension of qualification of the Preferred Securities or threat thereof in any
jurisdiction.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
security holders as soon as practicable an earning statement of the Offerors in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, for the purposes of, and
to provide the benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
(h) Notice and Effect of Material Events. The Offerors will
immediately notify the Underwriters, and confirm such notice in writing, of (i)
any filing made by the Offerors of information relating to the offering of the
Preferred Securities with any securities exchange or any other regulatory body
in the United States, and (ii) prior to the completion of the distribution of
the Preferred Securities by the Underwriters as evidenced by a notice in writing
from the Underwriters to the Offerors, any Material Adverse Effect, which (i)
makes any statement in the Prospectus false or misleading or (ii) is not
disclosed in the Prospectus. In such event or if during such time any event
shall occur as a result of which it is necessary, in the reasonable opinion of
the Company, its counsel or the Underwriters or counsel to the Underwriters, to
amend or supplement the Prospectus in order that the Prospectus not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances then existing, the Company will forthwith amend or supplement the
Prospectus by preparing and furnishing to the Underwriters an amendment or
amendments of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory in the reasonable opinion of counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a subsequent purchaser,
not misleading.
19
(i) DTC. The Offerors will cooperate with the Underwriters and use
their best efforts to permit the Preferred Securities to be eligible for
clearance and settlement through the facilities of DTC.
(j) Use of Proceeds. The Trust will use the net proceeds received by
it from the sale of the Preferred Securities, and the Company will use the net
proceeds received by it from the sale of the Subordinated Debentures, in the
manner specified in the Prospectus under "Use of Proceeds."
(k) The New York Stock Exchange. The Company will file with the New
York Stock Exchange all documents and notices required by the New York Stock
Exchange of companies that have securities that are listed on the New York Stock
Exchange. If the Preferred Securities are exchanged for Subordinated Debentures,
the Company will use its best efforts to effect the listing of the Subordinated
Debentures on the New York Stock Exchange or such other national securities
exchange or automated quotation system on which the Preferred Securities are
then listed, and to have the Subordinated Debentures promptly registered under
the 1934 Act, and to maintain such listing for as long as the Subordinated
Debentures remain outstanding.
(l) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectus, neither the Company nor the Trust will, without the
prior written consent of Xxxx Xxxxx, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any Preferred Securities or Subordinated
Debentures (or any equity or debt securities substantially similar to the
Preferred Securities or Subordinated Debentures, respectively), or any
securities convertible into or exercisable or exchangeable for Preferred
Securities or Subordinated Debentures (or any equity or debt securities
substantially similar to the Preferred Securities or Subordinated Debentures,
respectively) or file any registration statement under the 1933 Act with respect
to any of the foregoing, or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of Preferred Securities or Subordinated
Debentures (or any equity or debt securities substantially similar to the
Preferred Securities or Subordinated Debentures, respectively), whether any such
swap or transaction described in clause (i) or (ii) above is to be settled by
delivery of Preferred Securities or Subordinated Debentures (or any equity or
debt securities substantially similar to the Preferred Securities or
Subordinated Debentures, respectively) or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to the Preferred Securities or
Subordinated Debentures to be sold hereunder. Notwithstanding the foregoing,
during such 90-day period (i) the Company may grant stock options, rights or
warrants pursuant to the Company's director or employee benefit or compensation
plans or arrangement which are in place as of the date hereof; (ii) the Company
may issue shares of common stock upon the exercise of an option, right or
warrant of the conversion of a security pursuant to such plans or arrangements
or otherwise outstanding as of the date hereof; and (iii) the Company may file a
registration statement under the 1933 Act in connection with the registration of
securities pursuant to an employee stock option, stock purchase, dividend
reinvestment plan or other similar employee benefit plan.
20
(m) Reporting Requirements. For so long as the Preferred Securities or
the Subordinated Debentures shall remain outstanding, the Company and the Trust
will use its best efforts to maintain the registration of the Preferred
Securities and the Subordinated Debentures under the 1934 Act and the 1934 Act
Regulations.
(n) Furnish Reports. For and during the period ending three years
after the effective date of the Registration Statement, the Offerors will
furnish to the Underwriters, upon request, copies of all reports and other
communications (financial or otherwise) furnished by the Offerors to its
security holders generally and copies of any reports or financial statements
furnished to or filed by the Offerors with the Commission or any national
securities exchange on which any class of securities of the Company may be
listed.
(o) Subsequent Transactions. Subsequent to the date of this Agreement
and through the date which is the later of (i) the day following the date on
which the Underwriters' option to purchase Optional Preferred Securities shall
expire or (ii) the day following the Date of Delivery with respect to any
Optional Preferred Securities that the Underwriters shall elect to purchase,
except as described in or contemplated by the Prospectus, neither the Company
nor any of the Subsidiaries shall take any action (or refrain from taking any
action) which will result in the Company or the Subsidiaries incurring any
material liability or obligation, direct or contingent, or enter into any
material transaction, except in the ordinary course of business, or take or
refrain from taking any action which will cause or result in any material
adverse change in the financial position, capital stock, or any material
increase in long-term debt, obligations under capital leases or short-term
borrowings of the Company and the Subsidiaries on a consolidated basis.
(p) Redemption of Securities. The Offerors shall not, for a period of
90 days after the date hereof, without the prior written consent of Xxxx Xxxxx,
purchase, redeem or call for redemption, or prepay or give notice of prepayment
(or announce any redemption or call for redemption, or any repayment or notice
of prepayment) of the Offerors' securities, other than shares of the Company's
common stock pursuant to a publicly announced stock repurchase program.
(q) Stabilization Activities. The Offerors shall not take, directly or
indirectly, any action designed to result in or which constitutes or which might
reasonably be expected to (i) cause or result in stabilization or manipulation
of the price of any security of the Offerors to facilitate the sale or resale of
the Preferred Securities or (ii) otherwise violate the Commission's Regulation
M, and the Offerors are not aware of any such action taken or to be taken by any
affiliate of the Offerors.
(r) Public Communications. Prior to the Closing Time (and, if
applicable, any Date of Delivery), the Offerors will not issue any press release
or other communication directly or indirectly or hold any press conference with
respect to the financial results of the Company or the Broker-Dealer
Subsidiaries or the offering of the Preferred Securities which you shall not
previously have been provided a copy a reasonable time prior to the release
thereof or provided reasonable notice thereof and you shall not have reasonably
objected thereto.
21
SECTION 4. Payment of Expenses.
(a) Expenses. The Company, as borrower under the Subordinated
Debentures, will pay all expenses incident to the performance of its, and the
Trust's, obligations under this Agreement, including:
(i) the preparation, printing and any filing of the
Registration Statement (including financial statements and any schedules or
exhibits and any document incorporated therein by reference) and of each
amendment or supplement thereto;
(ii) the preparation, printing and delivery to the Underwriters
of this Agreement, the Operative Documents and such other documents as may
be required in connection with the offering, purchase, sale and delivery of
the Preferred Securities;
(iii) the preparation, issuance and delivery of the certificates
for the Preferred Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance, or delivery of the Preferred Securities to the Underwriters;
(iv) the fees and disbursements of the Company's counsel,
accountants and other advisors;
(v) the fees and expenses of any trustee appointed under any of
the Operative Documents, including the fees and disbursements of counsel
for such trustees in connection with the Operative Documents;
(vi) if applicable, the qualification of the Preferred
Securities under securities laws in accordance with the provisions of
Section 3(f) of this Agreement, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and
any supplement thereto, if any, which shall not exceed $2,500 in the
aggregate;
(vii) the printing and delivery to the Underwriters of copies of
each preliminary prospectus, of any Term Sheets and of the Prospectus and
any amendments or supplements thereto, if any;
(viii) the fees and expenses of any transfer agent or registrar
for the Preferred Securities;
(ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters, which shall not exceed
$7,500, in connection with, the review by the NASD of the terms of the sale
of the Preferred Securities;
22
(x) the fees and expenses incurred in connection with the
listing of the Preferred Securities and, if applicable, the Subordinated
Debentures, on the New York Stock Exchange;
(xi) 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 the Subordinated Debentures;
(xii) the fees and expenses of the Delaware Trustee and the
Property Trustee, including the fees and disbursements of counsel for the
Delaware Trustee and Property Trustee in connection with the Declaration
and the Certificate of Trust;
(xiii) the fees and expenses of the Guarantee Trustee;
(xiv) the cost and charges of qualifying the Preferred Securities
with the DTC; and
(xv) all reasonable travel and lodging expenses incurred by the
Underwriters in connection with this Offering and any informational "road
show" meetings held in connection with the Offering and all expenses
related to the preparation of all materials used in connection with such
meetings.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
of this Agreement, the Company shall reimburse the Underwriters for all of their
actual accountable out-of-pocket expenses, including all the reasonable fees and
disbursements of Vedder, Price, Xxxxxxx & Kammholz, counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Offerors contained in Section 1 of this Agreement or in
certificates of any Trustee of the Trust or any officer of the Company or any of
its Broker-Dealer Subsidiaries delivered pursuant to the provisions of this
Agreement, to the performance by the Offerors of their obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and at the Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have been
filed with the Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A or, if the Company
has elected to rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 424(b)).
(b) Opinion of In-house Counsel for the Company. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of
23
Xx. Xxxxxx X. Xxxxxx, Esq., General Counsel of the Company, substantially in the
form previously agreed.
(c) Opinion of Outside Counsel for Offerors. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Xxxxx Xxxx LLP, St. Louis, Missouri, counsel for the Offerors,
substantially in the form previously agreed. Such counsel may state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of Trustees of the Trust, officers of
the Company and Xxxxxx Xxxxxxxx and certificates of public officials. In giving
such opinion, such counsel may rely upon the opinion of Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel to the Offerors, as to certain matters
relating to the Trust and the Preferred Securities which are governed by
Delaware law.
(d) Opinion of Special Counsel for Wilmington Trust Company. At the
Closing Time, the Underwriters shall have received the opinion, dated as of the
Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to Wilmington Trust
Company, as Property Trustee under the Declaration, Guarantee Trustee under the
Preferred Securities Guarantee Agreement and Debenture Trustee under the
Indenture, in form and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act
and, under the Trust Agreement and the Delaware Business Trust Act, has the
trust power and authority to conduct its business as described in the
Prospectus;
(ii) The Trust Agreement is a legal, valid and binding agreement
of the Company, as sponsor, and the Trustees, and is enforceable against
the Company, as sponsor, and the Trustees, in accordance with its terms;
(iii) Under the Trust Agreement and the Delaware Business Trust
Act, the execution and delivery of the Underwriting Agreement by the Trust,
and the performance by the Trust of its obligations thereunder, have been
authorized by all requisite trust action on the part of the Trust;
(iv) The Preferred Securities have been duly authorized by the
Trust Agreement, and when issued and sold in accordance with the Trust
Agreement, the Preferred Securities will be validly issued and, subject to
the qualifications set forth in paragraph (v) below, fully paid and
nonassessable beneficial interests in the assets of the Trust and will
entitle the holder thereof to the benefits of the Trust Agreement. The form
of certificates to evidence the Preferred Securities has been approved by
the Trust and is in due and proper form and complies with the Trust
Agreement and all applicable requirements, if any, of the Delaware Business
Trust Act;
(v) Holders of Preferred Securities, as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to shareholders of private, for-profit corporations organized
under the General Corporation Law of the State
24
of Delaware. Such opinion may note that the holders of Preferred Securities
may be obligated to make payments as set forth in the Trust Agreement;
(vi) The issuance of the Common Securities and Preferred
Securities is not subject to preemptive rights under the Delaware Business
Trust Act or the Trust Agreement; and
(vii) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate (A) the Trust
Agreement, or (B) any applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (a) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (b) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (c) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(e) Opinion of Special Tax Counsel for the Offerors. At the Closing
Time, the Underwriters shall have received an opinion, dated as of the Closing
Time, of Xxxxx Xxxx LLP, St. Louis, Missouri, special tax counsel to the
Offerors, in form and substance reasonably satisfactory to counsel for the
Underwriters and substantially to the effect that (i) the Subordinated
Debentures issued by the Company to the Trust in connection with the issuance of
the Preferred Securities will be treated as indebtedness of the Company for
federal income tax purpose; (ii) 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, and (iii) the statements set forth in the Prospectus under the
caption "Federal Income Tax Consequences" constitute in all material respects a
fair and accurate summary of the anticipated United States federal income tax
consequences of the ownership and disposition of the Preferred Securities under
current law. Such opinion may be conditioned on, among other things, the initial
and continuing accuracy of the facts, financial and other information, covenants
and representations set forth in certificates of officers of the Company and
other documents deemed necessary for such opinion.
(f) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Vedder, Price, Xxxxxxx & Kammholz, special counsel for the
Underwriters, in form and substance reasonably satisfactory to the Underwriters.
Such counsel may state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of Trustees
of the Trust, officers of the Company and its Broker-Dealer Subsidiaries and
certificates of public officials. In giving such opinion, such counsel may rely
as to matters of fact upon statements and certifications of officers of the
Offerors and of other appropriate persons and may rely as to matters of law,
other than law of the United States and the State of Illinois, upon the opinions
of Xxxxx Xxxx LLP and Xxxxxxxx, Xxxxxx & Finger described herein.
25
(g) Certificates. At the Closing Time, there shall not have been, since the
date of this Agreement or since the respective dates as of which information is
given in the Prospectus, any Material Adverse Effect, and the Underwriters shall
have received a certificate of the Chief Executive Officer and President of the
Company and of the Chief Financial Officer or the chief accounting officer of
the Company and a certificate of an Administrative Trustee of the Trust, dated
as of the Closing Time, to the effect that (i) the Registration Statement became
effective at _____ p.m., Eastern Time, on April __, 2002; (ii) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any Material Adverse Effect, (iii) since
such dates referred to in paragraph (ii) hereof, there has not been any material
transaction entered into by the Offerors or the Company's subsidiaries other
than transactions in the ordinary course of business; (iv) the representations
and warranties of the Offerors set forth in Section 1 of this Agreement were
true and correct in all material respects when made and are true and correct
with the same force and effect as though expressly made at and as of the Closing
Time, (v) the Offerors have in all material respects complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Time; (vi) they have carefully examined the
Registration Statement and the Prospectus and nothing has come to their
attention that would lead them to believe that either the Registration Statement
or the Prospectus, as of their respective effective or issue dates, contained,
and the Prospectus contains any untrue statement of a material fact, or omits to
a state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; and (vii) no stop order affecting the Registration
Statement is in effect or, to their knowledge, threatened, as of the date
hereof.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Underwriters shall have received from Deloitte & Touche LLP (the
"Accountants") a letter dated such date, in form and substance satisfactory to
the Underwriters, 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 included in the
Prospectus.
(i) Bring-Down Comfort Letter. At the Closing Time, the Underwriters shall
have received from the Accountants a letter dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (h) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
(j) Approval of Listing. At the Closing Time, the Preferred Securities
shall have been approved for listing on the New York Stock Exchange.
(k) Conditions to Purchase of Optional Preferred Securities. In the event
that the Underwriters exercise their option provided in Section 2(b) this
Agreement to purchase all or any portion of the Optional Preferred Securities,
the representations and warranties of the Company and the Trust contained in
this Agreement and the statements in any certificates furnished by the Company
and any Trustee hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the Underwriters shall have received:
26
(i) Opinion of In-House Counsel for the Company. The favorable opinion
of Xx. Xxxxxx X. Xxxxxx, Esq., General Counsel of the Company, dated such
Date of Delivery, relating to the Optional Preferred Securities to be
purchased on such Date of Delivery and otherwise to the same effects as the
opinion required by Section 5(b) of this Agreement.
(ii) Opinion of Outside Counsel for Offerors. The favorable opinion of
Xxxxx Xxxx LLP, counsel for the Offerors, dated such Date of Delivery,
relating to the Optional Preferred Securities to be purchased on such Date
of Delivery and otherwise to the same effect as the opinion required by
Section 5(c) of this Agreement.
(iii) Opinion of Special Counsel for Wilmington Trust Company. The
favorable opinion, dated such Date of Delivery, of Xxxxxxxx, Xxxxxx &
Finger, P.A., counsel to Wilmington Trust Company, as Property Trustee
under the Declaration, Guarantee Trustee under the Preferred Securities
Guarantee Agreement and Debenture Trustee under the Indenture, relating to
the Optional Preferred Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(d) of
this Agreement.
(iv) Opinion of Special Tax Counsel for the Offerors. The favorable
opinion, dated such Date of Delivery, of Xxxxx Xxxx LLP, special tax
counsel to the Offerors, relating to the Optional Preferred Securities to
be purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(e) of this Agreement.
(v) Opinion of Counsel for the Underwriters. The favorable opinion,
dated such Date of Delivery, of Vedder, Price, Xxxxxxx & Kammholz, counsel
for the Underwriters, relating to the Optional Preferred Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(f) of this Agreement.
(vi) Certificates. Certificates, dated such Date of Delivery, of the
Chief Executive Officer and President of the Company and of the Chief
Financial Officer of the Company and a certificate of an Administrative
Trustee of the Trust, confirming that the certificates delivered at the
Closing Time pursuant to Section 5(g) this Agreement remain true and
correct as of such Date of Delivery.
(vii) Bring-Down Comfort Letter. A letter from the Accountants dated
such Date of Delivery, in form and substance satisfactory to the
Underwriters, substantially in the same form and substance as the letter
furnished to the Underwriters pursuant to Section 5(h) this Agreement,
except that the specified date referred to shall be a date not more than
three days prior to such Date of Delivery.
(l) Additional Documents. At the Closing Time, counsel for the Underwriters
shall have been furnished such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Preferred Securities as in this Agreement contemplated, or in order to
evidence the accuracy of any of the representations or
27
warranties of the Offerors, or the fulfillment of any of the conditions,
contained in this Agreement; and all proceedings taken by the Offerors in
connection with the issuance and sale of the Preferred Securities as
contemplated in this Agreement shall be reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Offerors at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 of
this Agreement and except that Sections 6 and 7 of this Agreement shall survive
any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Offerors agree to jointly and
severally indemnify and hold harmless: (x) each of the Underwriters; (y) each
person, if any, who controls (within the meaning of either Section 15 of the
1933 Act or Section 20 of the 0000 Xxx) any Underwriter (each such person, a
"controlling person"); and (z) the respective partners, directors, officers,
employees and agents of any Underwriter or any controlling person as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment or supplement thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or arising out of
any untrue statement of a material fact contained in any preliminary
prospectus or Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid by each
such indemnified person in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any claim whatsoever based upon any such untrue
statement or omission referred to in clause (i) of this Section 6(a), or
any such alleged untrue statement or omission referred to in clause (i) of
this Section 6(a); provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred (including
subject to Section 6(b), the fees and disbursements of counsel chosen by
Xxxx Xxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission referred to in
clause (i) of this Section 6(a), or any such alleged untrue statement or
omission
28
referred to in clause (i) of this Section 6(a), to the extent that any such
expense is not paid under (i) or (ii) above; provided, however, that the
indemnity agreement set forth in this Section 6(a) shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with the Underwriters' Information. The
foregoing indemnity with respect to any untrue statement or alleged untrue
statement contained in or omission or alleged omission from a preliminary
prospectus shall not inure to the benefit of the Underwriter (or any person
controlling such Underwriter) from whom the person asserting any loss,
liability, claim, damage or expense purchases any of the referred
Securities which are the subject thereof if (A) the Company shall sustain
the burden of proving that such person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented) at or prior to
the written confirmation of the sale of such Securities to such person, and
(B) the untrue statement contained in or omission from a preliminary
prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented) and the Company has previously furnished copies thereof to
such Underwriter.
(b) Indemnification of Offerors, Directors and Officers. Each Underwriter
severally and not jointly agrees to indemnify and hold harmless the Company, its
directors, officers, the Trust, each of the Trustees and each person, if any,
who controls the Trust, any of the Trustees or the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 6(a) above, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus, or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with the Underwriters' Information.
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. If an indemnifying party so elects within a reasonable time after
receipt of such notice, an indemnifying party, severally or jointly with any
other indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably acceptable to the indemnified
parties defendant in such action, provided, however, that if (i) representation
of such indemnified party by the same counsel would present a conflict of
interest or (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and any
such indemnified party reasonably determines that there may be legal defenses
available to such indemnified party which are different from or in addition to
those available to such indemnifying party, then in the case of clauses (i) and
(ii) of this Section 6(c) such indemnifying party and counsel for each
indemnifying party or parties shall not be entitled to assume such defense. If
either (A) an indemnifying party is not entitled to assume the defense of such
action as a result of the proviso
29
to the preceding sentence or (B) an indemnifying party is entitled under the
preceding sentence to assume the defense of such action but fails to do so in
accordance with the provisions of this paragraph within a reasonable time after
the indemnifying party was given notice of commencement of the action, then, in
either case: (x) counsel selected by the indemnified party or parties shall be
entitled to conduct such defense and (y) such indemnifying party or parties must
reimburse all the fees and expenses of such counsel for the indemnified party or
parties as they are incurred. Notwithstanding the preceding sentence, the
indemnifying party or parties may participate, at its or their own expense, in
the defense of any such action. If an indemnifying party assumes the defense of
such action, in accordance with and as permitted by the provisions of this
paragraph, such indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one firm of attorneys (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. Such firm of attorneys shall be designated in writing, in the
case where the indemnified parties are any of the parties indemnified pursuant
to Section 6(a) above, by Xxxx Xxxxx and, in the case where the indemnified
parties are any of the parties indemnified pursuant to Section 6(b) above, by
the Company. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 of this Agreement (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party. 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 the extent specified in this Section 6 to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) Settlement Without Consent If Failure to Reimburse. Notwithstanding the
last sentence of Section 6(b), if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement; provided that
an indemnifying party shall not be liable for any such settlement effected
without its consent if such indemnifying party (1) reimburses such indemnified
party in accordance with such request to the extent it considers reasonable and
(2) provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
30
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnification provided for in
Section 6 of this Agreement is for any reason held to be unenforceable by an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Underwriters on the other hand from the offering of the Preferred
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Offerors, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, 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 hand in
connection with the offering of the Preferred Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Preferred Securities pursuant to this
Agreement (before deducting expenses but after deducting the compensation paid
to the Underwriters pursuant to Section 2(c) of this Agreement) received by the
Offerors and the total commission received by the Underwriters, bear to the
aggregate initial offering price of the Preferred Securities. The relative fault
of the Offerors, on the one hand, and the Underwriters, on the other hand, shall
be determined by reference to, among other things, whether any such untrue or
alleged untrue statements of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Offerors or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriters shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Preferred Securities purchased by it and distributed to
the public were offered to the public exceeds the amount of any damages which
that Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
31
For purposes of this Section 7, each controlling person and the respective
partners, directors, officers, employees and agents of any Underwriter or any
controlling person of any Underwriter shall have the same rights to contribution
as that Underwriter, and each officer and director of the Company, and each
person, if any, who controls (within the meaning of Section 15 of the 1933 Act
or Section 20 of the 0000 Xxx) the Company shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are not joint but several in proportion to
the number of Securities set forth against their respective names in Schedule A
to this Agreement.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or trustees of the Trust submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Trust or the Company, and shall survive
delivery of the Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement, by
notice to the Offerors, at any time at or prior to the Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any Material Adverse
Effect, or (ii) if, since the time of execution of this Agreement, there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis (including, without limitation, an act of terrorism), or any change or
development involving a prospective change in national political, financial or
economic conditions, in each case the effect of which is such as to make it, in
the judgment of the Underwriters, impracticable to market the Preferred
Securities or to enforce contracts for the sale of the Preferred Securities, or
(iii) if, since the time of execution of this Agreement, trading in any
securities of the Company has been suspended or limited by the Commission or the
New York Stock Exchange, or (iv) if, since the time of execution of this
Agreement, trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or limited,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority; or (v)
any action shall have been taken by any government in respect of its monetary
affairs which, in the judgment of the Underwriters, has a material adverse
effect on the United States securities markets so as to make it, in the judgment
of the Underwriters, impracticable to market the Preferred Securities or enforce
contracts for sale of the Preferred Securities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 of this Agreement, and provided further that
Sections 6 and 7 of this Agreement shall survive such termination and remain in
full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one of the
Underwriters fails at the Closing Time or a Date of Delivery to purchase the
Preferred Securities which it or
32
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the non-defaulting Underwriter shall have the right, within 24
hours of the Closing Time, to make arrangements for it or any person(s) selected
by it as substitute Underwriter(s) to purchase all or some of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms set forth in
this Agreement; if, however, the non-defaulting Underwriter shall not have
completed such arrangements within such 24-hour period, then this Agreement
shall terminate without liability on the part of the non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve the defaulting
Underwriter from liability in respect of its default. If any such default does
not result in a termination of this Agreement, either the Underwriters or the
Company shall have the right to postpone the Closing Time or Date of Delivery
for a period not exceeding five days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. In this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, 000
Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx,
Managing Director, with a copy to Vedder, Price, Xxxxxxx & Kammholz, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx X.
Xxxxx, Esq. Notices to the Offerors shall be directed to Stifel Financial Corp.,
000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxx, Esq.,
with a copy to Xxxxx Xxxx LLP, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx,
Xxxxxxxx 00000, Attention: R. Xxxxxxx Xxxx, Esq.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding
upon the Underwriters and the Offerors and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Offerors and their respective successors and the controlling persons and
officers and directors referred to in Sections 1, 6 and 7 of this Agreement and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained in this
Agreement. This Agreement and all conditions and provisions of this Agreement
are intended to be for the sole and exclusive benefit of the Underwriters and
the Offerors and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Preferred
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES.
SECTION 14. Effect of Headings. The article and section headings in this
Agreement are for convenience only and shall not affect the construction of this
Agreement.
[SIGNATURE PAGE FOLLOWS]
33
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart of this Agreement, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
STIFEL FINANCIAL CORP.
By
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief Executive
Officer
STIFEL FINANCIAL CAPITAL TRUST I
By
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Administrative Trustee
By
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Administrative Trustee
By
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Administrative Trustee
CONFIRMED AND ACCEPTED, as of the
date first above written:
For itself and as the Representatives
of the several Underwriters named in
Schedule A hereto:
XXXX XXXXX XXXX XXXXXX,
INCORPORATED
By:
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
34
XXXXXX, XXXXXXXX & COMPANY,
INCORPORATED
By:
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By:
-----------------------------------
Name:
Title:
35
SCHEDULE A
Number of Preferred
Name of Underwriter Securities
------------------- ----------
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated...........................
Xxxxxx, Xxxxxxxx & Company, Incorporated.......................
Friedman, Billings, Xxxxxx & Co., Inc..........................
---------
Total................................................. 1,000,000
=========
A-1
SCHEDULE B
SUBSIDIARIES OF STIFEL FINANCIAL CORP. (1)
NAME STATE OF INCORPORATION NAMES UNDER WHICH SUBSIDIARY DOES BUSINESS
---- ---------------------- ------------------------------------------
Xxxxxx, Xxxxxxxx & Company, Incorporated Missouri Xxxxxx, Xxxxxxxx & Company, Incorporated
Alliance Realty Corp. Missouri Alliance Realty Corp.
Century Securities Associates, Inc. Missouri Century Securities Associates, Inc.
Xxxxxx, Xxxxxxxx Insurance Agency, Inc.(2) Arkansas Xxxxxx, Xxxxxxxx Insurance Agency, Inc.
S-N Capital Corp.(2) Missouri S-N Capital Corp.
Stifel Insurance Agency - Ohio, Inc.(3) Ohio Stifel Insurance Agency - Ohio, Inc.
Stifel Venture Corp. Missouri Stifel Venture Corp.
Pin Oak Capital, Ltd.(4) Missouri Pin Oak Capital, Ltd.
Stifel Asset Management Corp. Missouri Stifel Asset Management Corp.
Stifel CAPCO, L.L.C. Missouri Stifel CAPCO, L.L.C.
Stifel CAPCO II, L.L.C. Missouri Stifel CAPCO II, L.L.C.
Stifel Colorado Ventures, LLC Colorado Stifel Colorado Ventures, LLC
Xxxxxxx, Xxxxxx Inc. Colorado Xxxxxxx, Xxxxxx Inc.
Xxxxxx Financial Capital Trust I Delaware Stifel Financial Capital Trust I
--------------------
(1) Does not include corporations in which the Company owns 50% or less of
the stock.
(2) Wholly owned subsidiary of Xxxxxx, Xxxxxxxx & Company, Incorporated.
(3) Majority owned subsidiary of Xxxxxx, Xxxxxxxx & Company, Incorporated.
(4) Wholly owned subsidiary of Stifel Asset Management Corp.
B-1
