EXHIBIT 1
2,100,000 Shares
SOUTHWEST BANCORP, INC.
Common Stock
Par Value $1.00 Per Share
UNDERWRITING AGREEMENT
May ___, 2005
Xxxxxx, Xxxxxxxx & Company, Incorporated
Xxxxxx X. Xxxxx & Co. L.L.P.
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Suntrust Capital Markets, Inc.
As Representatives of the Several Underwriters
named in Schedule I hereto
x/x Xxxxxx, Xxxxxxxx & Company, Incorporated
000 Xxxxx Xxxxxxxx, 0xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Southwest Bancorp, Inc., an Oklahoma corporation (the "Company"),
proposes to issue and sell to the several underwriters listed on Schedule I
hereto (the "Underwriters"), pursuant to the terms of this Agreement, 2,100,000
shares of the Company's common stock, par value $1.00 per share (the "Common
Stock"). The 2,100,000 shares of Common Stock to be sold to the Underwriters are
referred to as the "Firm Shares". Solely for the purpose of covering
over-allotments in the sale of the Firm Shares, the Company further proposes to
issue and sell to the Underwriters, at their option, up to an additional 315,000
shares of Common Stock (the "Option Shares") upon exercise of the over-allotment
option granted in Section 1 hereof. The Firm Shares and any Option Shares are
herein collectively referred to as the "Shares." You are acting as
representatives of the Underwriters and in such capacity are sometimes herein
referred to as the "Representatives."
The Company hereby confirms as follows its agreement with each of the
Underwriters in connection with the proposed purchase of the Shares.
1. Sale, Purchase and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, and subject to the
terms and conditions herein set forth, the Company hereby agrees to sell to each
of the Underwriters and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a purchase price per share of $_______
(the "Purchase Price") the respective number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I plus any additional number of Firm
Shares which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 9 of this Agreement. The Representatives may by notice to
the Company amend Schedule I to add, eliminate or substitute names set forth
therein (other than to eliminate the names of a Representative) and to amend the
number of Firm Shares to be purchased by any firm or corporation listed thereon,
provided that the total number of Firm Shares listed on Schedule I shall equal
2,100,000.
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The number of Firm Shares to be purchased by each Underwriter from the
Company shall bear the same ratio to the total number of Firm Shares to be sold
by the Company as the total number of Firm Shares to be purchased by such
Underwriter bears to the total number of Firm Shares to be purchased by the
Underwriters; provided, however, that the Representatives shall adjust the
number of Firm Shares to be purchased by each Underwriter from the Company as
necessary to eliminate fractional shares.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 315,000 Option Shares, and upon
the exercise of such option in accordance with this Section 1, the Company
hereby agrees to sell to the Underwriters, severally and not jointly, all or any
portion of the Option Shares at the same Purchase Price per share paid for the
Firm Shares; provided, that the purchase price per share for any Option Shares
purchased upon exercise of the over-allotment option shall be reduced by an
amount equal to any dividends or distributions declared by the Company and
payable on the Firm Shares but not payable on the Option Shares. If any Option
Shares are to be purchased, each Underwriter, severally and not jointly, agrees
to purchase from the Company that proportion (subject to adjustment as you may
determine to avoid fractional shares) of the number of Option Shares to be
purchased that the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to 315,000. The option hereby granted (the "Option")
shall expire 30 days after the date upon which the Registration Statement (as
hereinafter defined) becomes effective and may be exercised only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Firm Shares. The Option may be exercised in whole or in
part at any time (but not more than once) by you giving notice (confirmed in
writing) to the Company setting forth the number of Option Shares as to which
the Underwriters are exercising the Option and the time, date and place for
payment and delivery of certificates for such Option Shares. Such time and date
of payment and delivery for the Option Shares (the "Option Closing Date") shall
be determined by you, but shall not be earlier than 2 nor later than 5 full
business days after the exercise of such Option, nor in any event prior to the
Closing Date (as hereinafter defined). The Option Closing Date may be the same
as the Closing Date.
Payment of the Purchase Price and delivery of certificates for the Firm
Shares shall be made at the offices of Xxxxxx, Xxxxxxxx & Company, Incorporated,
000 Xxxxx Xxxxxxxx, 0xx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or such other place as
shall be agreed to by you and the Company, at 10:00 a.m., St. Louis time, on
___________, 2005, or at such other time not more than 5 full business days
thereafter as the Company and you shall determine (the "Closing Date") or unless
postponed in accordance with the provisions of Section 9. If the Underwriters
exercise the option to purchase any or all of the Option Shares, payment of the
Purchase Price and delivery of certificates for such Option Shares shall be made
on the Option Closing Date at the offices of Xxxxxx, Xxxxxxxx & Company,
Incorporated, or at such other place as the Company and you shall determine.
Such payments shall be made to an account designated by the Company by wire
transfer or certified or bank cashier's check, in same day funds, in the amount
of the Purchase Price therefor, against delivery by or on behalf of the Company
to you for the respective accounts of the Underwriters of certificates for the
Shares to be purchased by them.
The Agreement contained herein with respect to the timing of the
Closing Date and Option Closing Date is intended to, and does, constitute an
express agreement, as described in Rule 15c6-1(a) and (d) promulgated under the
1934 Act (as defined herein), for a settlement date other than three business
days after the date of the contract.
Certificates for Shares to be purchased by the Underwriters shall be
delivered in fully registered form in such authorized denominations and
registered in such names as you shall request in writing not later than 12:00
noon, St. Louis time, two business days prior to the Closing Date and, if
applicable, the Option Closing Date. Certificates for Shares to be purchased by
the Underwriters shall be made available to you for inspection, checking and
packaging at such office as you may designate in writing not later than 1:00
p.m., St. Louis time, on the last business day prior to the Closing Date and, if
applicable, on the last business day prior to the Option Closing Date. If the
Representatives so elects, delivery of the Shares may be made by credit to the
accounts at The Depository Trust Company designated by the Representatives.
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Time shall be of the essence, and delivery of the certificates for the
Shares at the time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder.
2. Representations and Warranties. The Company represents and warrants
to, and agrees with, each of the Underwriters that:
(a) Except as amended or superseded by subsequently filed reports, the
reports filed with the Securities and Exchange Commission (the "Commission") by
the Company under the Securities Exchange Act of 1934, as amended (the "1934
Act") and the rules and regulations thereunder (the "1934 Act Regulations") at
the time they were filed with the Commission, complied as to form with the
requirements of the 1934 Act and the 1934 Act Regulations and did not contain an
untrue statement of fact or omit to state any fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
(b) The Company has prepared and filed with the Commission a
registration statement on Form S-3 (File No. 333-124502) for the registration of
the Shares under the Securities Act of 1933, as amended (the "1933 Act"),
including the related prospectus subject to completion, and one or more
amendments to such registration statement may have been so filed, in each case
in conformity with the requirements of the 1933 Act and the rules and
regulations promulgated thereunder (the "1933 Act Regulations"). The Company
meets the requirements for use of Form S-3. Copies of such registration
statement, including any amendments thereto, each Preliminary Prospectus (as
defined herein) contained therein and the exhibits, financial statements and
schedules to such registration statement, as finally amended and revised, have
heretofore been delivered by the Company to the Representatives. After the
execution of this Agreement, the Company will file with the Commission (i) if
such registration statement, as it may have been amended, has been declared by
the Commission to be effective under the 1933 Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A of the 1933 Act Regulations
("Rule 430A") or permitted by Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)") and as have been provided to and not objected to by the Representatives
prior to (or as are agreed to by the Representatives subsequent to) the
execution of this Agreement, or (ii) if such registration statement, as it may
have been amended, has not been declared by the Commission to be effective under
the 1933 Act, an amendment to such registration statement, including a form of
final prospectus, necessary to permit such registration statement to become
effective, a copy of which amendment has been furnished to and not objected to
by the Representatives prior to (or is agreed to by the Representatives
subsequent to) the execution of this Agreement. The Company will not file any
amendment to the registration statement or any amended Preliminary Prospectus or
any amendment thereto, of which you have not been previously furnished a copy or
to which you or counsel for the Underwriters shall reasonably object. As used in
this Agreement, the term "Registration Statement" means such registration
statement, as amended at the time when it was or is declared effective under the
1933 Act, including (1) all financial schedules and exhibits thereto (2) all
documents (or portions thereof) incorporated by reference therein filed under
the 1934 Act, and (3) any information omitted therefrom pursuant to Rule 430A
and included in the Prospectus (as hereinafter defined) (and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, the term "Registration Statement"
also means such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be); the term "Rule 462(b) Registration
Statement" means a registration statement and any amendments thereto filed
pursuant to Rule 462(b) of the 1933 Act Regulations relating to the offering
covered by the Registration Statement; the term "Preliminary Prospectus" means
each prospectus subject to completion filed with such registration statement or
any amendment thereto, including all documents (or portions thereof)
incorporated by reference therein under the 1934 Act (including the prospectus
subject to completion, if any, included in the Registration Statement and each
prospectus filed pursuant to Rule 424(a) under the 0000 Xxx); and the term
"Prospectus" means the prospectus first filed with the Commission pursuant to
Rule 424(b)(1) or (4) or, if no prospectus is required to be filed pursuant to
Rule 424(b)(1) or (4), the prospectus included in the Registration Statement, in
each case including the financial schedules and all documents (or portions
thereof) incorporated by reference therein under the 1934 Act. The date on which
the Registration Statement becomes effective is hereinafter referred to as the
"Effective Date."
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(c) Except as amended or superseded by a subsequently filed document,
the documents incorporated by reference in the Preliminary Prospectus or
Prospectus or from which information is so incorporated by reference, when they
became effective or were filed with the Commission, as the case may be, complied
with the requirements of the 1934 Act and the 1934 Act Regulations and any
future documents incorporated by reference so filed, when they are filed, will
comply with the requirements of the 1934 Act and the 1934 Act Regulations; no
such incorporated document contained or will contain any untrue statement of
fact or omit to state any fact required to be stated therein or necessary to
make the statements therein not misleading, and when read together and with the
other information in the Preliminary Prospectus or Prospectus, as the case may
be, at the time the Registration Statement became or becomes effective and at
the Closing Date and any Option Closing Date, did not or will not, as the case
may be, contain an untrue statement of fact or omit to state any fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(d) No order preventing or suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the qualification or registration of
the Shares for offering or sale in any jurisdiction 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 Company, threatened to issue such an order or instituted
proceedings for such purpose. Each Preliminary Prospectus, at the time of filing
thereof, (i) complied with the requirements of the 1933 Act and the 1933 Act
Regulations and (ii) did not contain an untrue statement of fact or omit to
state any fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty does not
apply to statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by you expressly for inclusion
in the Prospectus beneath the heading "Underwriting" (such information referred
to herein as the "Underwriters' Information"). Each Preliminary Prospectus and
the Prospectus will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to its XXXXX system, except to the
extent permitted by Regulation S-T.
(e) The Registration Statement has been declared effective under the
1933 Act, and no post-effective amendment to the Registration Statement has been
filed with the Commission as of the date of this Agreement. At the Effective
Date and at all times subsequent thereto, up to and including the Closing Date
and, if applicable, the Option Closing Date, the Registration Statement and any
post-effective amendment thereto (i) complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations and
(ii) did not and will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty does not apply to Underwriters' Information. At the
Effective Date and at all times when the Prospectus is required to be delivered
in connection with offers and sales of Shares, including, without limitation,
the Closing Date and, if applicable, the Option Closing Date, the Prospectus, as
amended or supplemented, (1) complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and (2) did
not contain and will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
does not apply to Underwriters' Information. The Registration Statement will be
identical to the electronically transmitted copy thereof filed with the
Commission pursuant to its XXXXX system, except to the extent permitted by
Regulation S-T.
4
(f) The Company is duly organized, validly existing and in good
standing under the laws of the State of Oklahoma, with full corporate and other
power and authority to own, lease and operate its properties and conduct its
business as described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted and is duly registered
as a financial holding company under the Bank Holding Company Act of 1956, as
amended (the "BHC Act").
(g) The Company has 17 direct or indirect subsidiaries. Such
subsidiaries are listed on Exhibit A attached hereto and incorporated herein by
this reference (the "Subsidiaries"). The Company does not own or control,
directly or indirectly, more than 5% of any class of equity security of any
corporation, association or other entity other than the Subsidiaries. Each
Subsidiary is a national banking association, federal savings bank, business
trust, statutory trust or corporation duly incorporated or organized (as the
case may be), validly existing and in good standing under the laws of its
respective jurisdiction of incorporation or organization (as the case may be).
Each such Subsidiary has full corporate and other power and authority to own,
lease and operate its properties and to conduct its business as described in and
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) and as
currently being conducted. The deposit accounts of Stillwater National Bank and
Trust Company, a national banking association ("Stillwater National Bank") and
SNB Bank of Wichita, a federal savings bank ("SNB Wichita;" and together with
Stillwater National Bank, the "Banks") are insured by the Bank Insurance Fund
administered by the Federal Deposit Insurance Corporation (the "FDIC") up to the
maximum amount provided by law, except to the extent the Prospectus discloses
such deposit accounts are insured by the Savings Association Insurance Fund
administered by the FDIC and to such extent the deposit accounts are so insured
up to the maximum amount provided by law; and no proceedings for the
modification, termination or revocation of any such insurance are pending or, to
the knowledge of the Company, threatened. Stillwater National Bank is a member
of the Federal Reserve System, and no proceedings for the termination or
revocation of such membership are pending or, to the knowledge of the Company,
threatened.
(h) The Company and each of the Subsidiaries is duly qualified to
transact business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property or conducts its business so as
to require such qualification and in which the failure to so qualify would,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis. All of
the issued and outstanding shares of capital stock of the Subsidiaries (i) have
been duly authorized and are validly issued, (ii) are fully paid and
nonassessable except to the extent such shares may be deemed assessable under 12
U.S.C. Section 55 or 12 U.S.C. Section 1831o. Except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), all of the issued and outstanding shares of capital
stock of the Bank are directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, restriction upon voting
or transfer, preemptive rights, claim or equity. Except as disclosed in the
Prospectus, there are no outstanding rights, warrants or options to acquire or
instruments convertible into or exchangeable for any capital stock or equity
securities of the Subsidiaries, except for preemptive rights under the National
Bank Act.
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(i) The capital stock of the Company conforms to the description
thereof contained in the Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus. The outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are fully paid
and nonassessable, and no such shares were issued in violation of the preemptive
or similar rights of any security holder of the Company; no person has any
preemptive or similar right to purchase any shares of capital stock or equity
securities of the Company. Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), there
are no outstanding rights, options or warrants to acquire any securities of the
Company other than options issued under the Company's 1994 Stock Option Plan and
the Company's 1999 Stock Option Plan, and there are no outstanding securities
convertible into or exchangeable for any such securities, and no restrictions
upon the voting or transfer of any capital stock of the Company pursuant to the
Company's corporate charter or by-laws or any agreement or other instrument to
which the Company is a party or by which it is bound.
(j) The Company has all requisite power and authority to issue, sell
and deliver the Shares to be sold by the Company in accordance with and upon the
terms and conditions set forth in this Agreement and in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus). All corporate action required to be taken
by the Company for the authorization, issuance, sale and delivery of the Shares
to be sold by the Company has been validly and sufficiently taken. The Shares to
be sold by the Company, when delivered and paid for in accordance with this
Agreement, will be duly and validly issued and outstanding, fully paid and
nonassessable, and will conform to the description thereof in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus); and will not be issued in violation of or
subject to any preemptive or similar rights. None of the Shares, immediately
prior to delivery, will be subject to any security interest, lien, mortgage,
pledge, encumbrance, restriction upon voting or transfer, preemptive rights,
claim, equity or other defect.
(k) The Company and each of the Subsidiaries (i) are in compliance with
Federal, state, local and foreign laws, statutes, ordinances, rules, regulations
and decrees including, but not limited to, those of self-regulatory
organizations, the BHC Act, the Bank Secrecy Act, the Xxxxx-Xxxxx-Xxxxxx Act,
International Money Laundering Abatement and Anti-Terrorist Financing Act of
2001, the USA PATRIOT Act of 2001 and those of the Board of Governors of the
Federal Reserve System (the "Federal Reserve"), the Oklahoma Banking
Commissioner ("OBC"), Oklahoma Banking Department ("OBD"), the Office of the
State Bank Commissioner or the State of Kansas ("SBCK"), the Texas Department of
Banking ("TDB"), the Federal Home Loan Mortgage Corporation ("FHLMC"), the
Federal Housing Administration (the "FHA"), the Federal National Mortgage
Association (the "FNMA"), the United States Department of Housing and Urban
Development ("HUD"), the Office of the Comptroller of Currency (the "OCC"), the
U.S. Department of Agriculture as Rural Housing and Community Development
Service Approved Center (the "USDA"), and the United States Department of
Veterans Affairs (the "UA") (collectively, "Laws"), applicable to their
businesses or their employees, including, without limitation, licensing and
certification Laws covering any aspect of the businesses of the Company or any
of the Subsidiaries, and neither the Company nor any of the Subsidiaries has
received any notification asserting any failure to comply with or violation of
any such Laws; (ii) are not, nor are any of their respective affiliates, subject
to a "statutory disability" as defined in Section 3(a)(39) of the 1934 Act, and
(iii) have filed all reports, registrations and statements, together with any
amendments required to be made with respect thereto, that were required to be
filed (A) with the Federal Reserve, HUD, the FHA, FHLMC, FNMA, FDIC, OCC, SBCK,
USDA, UA, TDB, OBC and OBD and (B) under any applicable statute, rule,
regulation, law or order, with any applicable governmental authority or
self-regulatory organization with jurisdiction over any of the activities of the
Company or the Subsidiaries, including reports relating to escheatment of funds
(collectively, the "Company Regulatory Reports"), and have paid all fees in
connection therewith, except where the failure to make any such filing would not
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects, or results of operations of the Company
and the Subsidiaries on a consolidated basis. As of their respective dates, the
Company Regulatory Reports complied in all respects with the applicable
statutes, rules, regulations, laws and orders enforced or promulgated by the
governmental authority or self-regulatory organization with which they were
filed, except in all such cases described in clauses (i) - (iii) of the
preceding sentence where such noncompliance or violation would not have a
material adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects, or results of operations of the Company and the
Subsidiaries on a consolidated basis, and did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statement therein, in the light of the
circumstances under which they were made, not misleading.
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(l) The activities of the Company and the Subsidiaries are permitted
under applicable Federal and state banking laws and regulations. The Company has
all necessary approvals, including the approval of HUD, the FHA, FHLMC, FNMA,
SBCK, OBC, OBD, TDB, OCC, USDA, UA, and the Federal Reserve, as applicable, to
own the capital stock of its subsidiaries. Neither the Company nor any of its
Subsidiaries, nor, to the Company's knowledge, any of their respective
directors, officers or trustee, is party or subject to, or has received any
notice or advice that any of them may become party or subject to, any
investigation with respect to, any cease-and-desist order, agreement, memorandum
of understanding, commitment letter, directive or other regulatory enforcement
action, proceeding or order with or by, or has been a recipient of any
supervisory letter from, or has adopted any board resolutions at the request of,
any regulator (including HUD, the FHA, FHLMC, FNMA, SBCK, TDB, OBC, OBD, OCC,
USDA, UA, , the Federal Reserve, the FDIC, or any other federal or state agency
charged with the supervision or regulation of depository institutions, banks, or
financial holding companies, or engaged in the insurance of depository
institution deposits, or any court, administrative agency or commission or other
governmental agency, authority or instrumentality having supervisory or
regulatory authority with respect to the Company or any of its Subsidiaries
(each, a "Regulator")) that imposes any restrictions or requirements not
generally applicable to entities of the same type as the Company and the
Subsidiaries or currently restricts in any material respect the conduct of their
business or that in any material manner relates to their capital adequacy, their
credit policies, their ability or authority to pay dividends or make
distributions to their shareholders or make payments of principal or interest on
their debt obligations, their management or their business (each a "Regulatory
Agreement"), nor has the Company or any of its Subsidiaries been advised by any
Regulator that it is considering issuing or requesting any such Regulatory
Agreement, except for Regulatory Agreements that would not, individually or in
the aggregate, have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects, or results of operations of
the Company and the Subsidiaries on a consolidated basis. There is no material
unresolved violation, criticism or exception by any Regulator with respect to
any report or statement relating to any examinations of the Company or any of
its Subsidiaries.
(m) The Company and the Subsidiaries have all material permits,
easements, consents, licenses, grants, certificates, orders, approvals,
franchises and other governmental and regulatory authorizations from all
appropriate federal, state, local or other public authorities ("Permits") as are
necessary to own or lease their properties and conduct their businesses in the
manner described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted in all material
respects. All such Permits are in full force and effect and each of the Company
and the Subsidiaries are in all material respects complying therewith, and no
event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or will result in any other material
impairment of the rights of the holder of any such Permit. Such Permits contain
no restrictions that would materially impair the ability of the Company or the
Subsidiaries to conduct their businesses in the manner consistent with their
past practices. Neither the Company nor any of the Subsidiaries has received
notice or otherwise has knowledge of any proceeding or action relating to the
revocation or modification of any such Permit.
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(n) Neither of the Company nor any of the Subsidiaries is in breach or
violation of its corporate charter, by-laws or other governing documents.
Neither of the Company nor any of the Subsidiaries is, and to the knowledge of
the Company no other party is, in violation, breach or default (with or without
notice or lapse of time or both) in the performance or observance of any term,
covenant, agreement, obligation, representation, warranty or condition contained
in (i) any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound, which such breach, violation or default could have material adverse
consequences to the Company on a consolidated basis, and to the knowledge of the
Company, no other party has asserted that the Company or any of the Subsidiaries
is in such violation, breach or default (provided that the foregoing shall not
apply to defaults by borrowers from either of the Banks), or (ii) any order,
decree, judgment, rule or regulation, of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having jurisdiction
over the Company or the Subsidiaries or any of their respective properties the
breach, violation or default of which could have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business, prospects,
or results of operations of the Company and the Subsidiaries on a consolidated
basis.
(o) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein, in the Registration
Statement and in the Prospectus (or, if the Prospectus in not in existence, the
most recent Preliminary Prospectus) do not and will not conflict with, result in
the creation or imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the Company or the Subsidiaries or
the Shares to be sold by the Company pursuant to, constitute a breach or
violation of, or constitute a default under, with or without notice or lapse of
time or both, any of the terms, provisions or conditions of the charter, by-laws
or any other governing document of the Company or the Subsidiaries, any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license, Permit or any other agreement or instrument to which
the Company or any of the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound or any order, decree, judgment, rule
or regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Company or
the Subsidiaries or any of their respective properties which conflict, creation,
imposition, breach, violation or default would have either singly or in the
aggregate have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations of
the Company and the Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of, or filing, registration or qualification with,
any person (including, without limitation, any court, governmental body or
authority) is required in connection with the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus (or such Preliminary
Prospectus), except such as have been obtained under the 1933 Act and from the
Nasdaq National Market relating to the approval for quotation of the additional
shares of Common Stock, and such as may be required under state securities laws
or Interpretations or Rules of the National Association of Securities Dealers,
Inc. ("NASD") in connection with the purchase and distribution of the Shares by
the Underwriters.
8
(p) The Company has all requisite corporate power and authority to
enter into this Agreement and this Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes the legal,
valid and binding agreement of the Company, enforceable in accordance with its
terms, except as the enforcement thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting creditors'
rights generally.
(q) The Company and the Subsidiaries have good and marketable title in
fee simple to all real property and good title to all personal property owned by
them and material to their business on a consolidated basis, in each case free
and clear of all security interests, liens, mortgages, pledges, encumbrances,
restrictions, claims, equities and other defects except such as are referred to
in the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) or such as do not materially affect the value of such
property in the aggregate and do not materially interfere with the use made or
proposed to be made of such property; and all of the leases under which the
Company or any of the Subsidiaries holds real or personal property are valid,
existing and enforceable leases and in full force and effect with such
exceptions as are not material and do not materially interfere with the use made
or proposed to be made of such real or personal property, and neither the
Company nor any of the Subsidiaries is in default in any material respect of any
of the terms or provisions of any leases.
(r) Ernst & Young LLP (the "Accountant"), who have audited the
consolidated financial statements of the Company and the Subsidiaries, including
the notes thereto, included by incorporation by reference or otherwise in the
Registration Statement and Prospectus, are independent public accountants with
respect to the Company and the Subsidiaries, as required by the 1933 Act and the
1933 Act Regulations. The Company has not engaged the Accountant to provide any
services to the Company that are impermissible under the 1934 Act, except as
permissible under the 1934 Act at the time such services were provided. All such
services had been approved by the Audit Committee of the Company's Board of
Directors as required by the 1934 Act.
(s) The consolidated financial statements, including the notes thereto,
included by incorporation by reference or otherwise in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) with respect to the Company and its
Subsidiaries comply in all material respects with the 1933 Act and the 1933 Act
Regulations and present fairly the consolidated financial position of the
Company and its Subsidiaries as of the dates indicated and the consolidated
results of operations, cash flows, shareholders' equity and comprehensive income
of the Company and its Subsidiaries for the periods specified have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis. The selected and summary consolidated financial data
concerning the Company and its Subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus (or such Preliminary
Prospectus) comply in all material respects with the 1933 Act and the 1933 Act
Regulations, present fairly the information set forth therein, and have been
compiled on a basis consistent with that of the consolidated financial
statements of the Company and its Subsidiaries in the Registration Statement and
the Prospectus (or such Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration Statement and
the Prospectus (or such Preliminary Prospectus) comply in all material respects
with the 1933 Act and the 1933 Act Regulations, present fairly the information
shown therein, and to the extent applicable have been compiled on a basis
consistent with the consolidated financial statements of the Company and its
Subsidiaries included in the Registration Statement and the Prospectus (or such
Preliminary Prospectus). There are no pro forma financial statements or other
pro forma financial information required to be included or incorporated by
reference in the Registration Statement or the Prospectus. No other financial
statements or schedules of the Company are required by the 1933 Act or the 1933
Act Regulations, or the 1934 Act or the 1934 Act Regulations to be included or
incorporated by reference in the Registration Statement or the Prospectus.
9
(t) The Company and each of the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance (i)
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance in generally accepted
accounting principles and (ii) that: (A) transactions are executed in accordance
with management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted only in accordance
with management's general or specific authorization; and (D) the recorded
accounts for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The
certifications of the Company's Chief Executive Officer and Chief Financial
Officer filed as exhibits to the Company's annual report on Form 10-K for the
fiscal year ended December 31, 2004, pursuant to Sections 302 and 906 of the
Xxxxxxxx-Xxxxx Act, were accurate in all material respects as of the date such
certifications were made, and to the knowledge of the Company, such
certifications are accurate in all material respects as of the date hereof.
(u) Based on the evaluation of its disclosure controls and procedures,
the Company is not aware of (i) any material weakness in the design or operation
of internal control over financial reporting that are reasonably likely to
adversely affect the Company's ability to record, process, summarize and report
financial information or (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company's
internal control over financial reporting. There have been no changes in
internal control over financial reporting during the Company's most recent
fiscal quarter that have materially affected or are reasonably likely to
materially affect the Company's internal control over financial reporting.
(v) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), except as otherwise stated
therein:
(i) neither the Company nor any of 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 is material to the condition (financial or
otherwise), earnings, business, prospects or results of operations of
the Company and the Subsidiaries on a consolidated basis;
(ii) there has not been any material adverse change in, or any
development which is likely to have a material adverse effect on, the
condition (financial or otherwise), earnings, business, prospects or
results of operations of the Company and the Subsidiaries on a
consolidated basis, whether or not arising in the ordinary course of
business;
(iii) neither the Company nor any of 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, business, prospects or results of operations of
the Company and the Subsidiaries on a consolidated basis;
(iv) the Company has not declared or paid any dividend, and
neither the Company nor any of its Subsidiaries has become delinquent
in the payment of principal or interest on any outstanding borrowings;
and
(v) there has not been any change in the capital stock (except
for the exercise of employee stock options issued under the Company's
1994 Stock Option Plan or the Company's 1999 Stock Option Plan, and
previously disclosed as outstanding options, stock issued pursuant to
the Company's Employee Stock Purchase Plan and stock issued pursuant to
the Company's Dividend Reinvestment Plan), 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.
10
(w) The Company and its Subsidiaries maintain insurance of the types
and in the amounts generally deemed adequate for its business, including, but
not limited to, directors' and officers' insurance, insurance covering real and
personal property owned or leased by the Company and its Subsidiaries against
theft, damage, destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and effect. Neither the
Company nor any of its Subsidiaries has been refused any insurance coverage
sought or applied for, and the Company has no reason to believe that it and its
Subsidiaries will not be able to renew their existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a
material adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(x) Except as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or proceeding is
pending or, to the knowledge of the Company, threatened, against or affecting
the Company or the Subsidiaries or any of their respective properties before or
by any court or any regulatory, administrative or governmental official,
commission, board, agency or other authority or body, or any arbitrator, and
there is no factual basis for any such charge, investigation, action, suit or
proceeding wherein an unfavorable decision, ruling or finding could reasonably
be expected to have a material adverse effect on the consummation of this
Agreement or the transactions contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations of
the Company and the Subsidiaries on a consolidated basis or which is required to
be disclosed in the Registration Statement or the Prospectus (or such
Preliminary Prospectus) and is not so disclosed.
(y) There are no contracts or other documents required to be filed as
exhibits to the Registration Statement by the 1933 Act or the 1933 Act
Regulations which have not been filed as exhibits or incorporated by reference
to the Registration Statement, or that are required to be summarized in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) that are not so summarized.
(z) The Company has not taken, directly or indirectly, any action
designed to result in or which has constituted or which might cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares, and the Company is not aware of any
such action taken or to be taken by any affiliate of the Company. The Company
acknowledges that the Underwriters may engage in passive market-making
transactions in the Shares on the Nasdaq National Market in accordance with
Regulation M under the 1934 Act.
(aa) The Company and the Subsidiaries own, or possess adequate rights
to use, all patents, copyrights, trademarks, service marks, trade names and
other rights necessary to conduct the businesses now conducted by them in all
material respects or as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and neither the
Company nor any of the 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 on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis, and the Company does not know of
any basis for any such infringement or conflict.
11
(bb) No labor dispute involving the Company or the Subsidiaries exists
or, to the knowledge of the Company, is imminent which might be expected to have
a material adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis or which is required to be disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). Neither the Company nor any of the Subsidiaries has
received notice of any existing or threatened labor dispute by the employees of
any of its principal suppliers, customers or contractors which might be expected
to have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(cc) The Company and the Subsidiaries have timely and properly prepared
and filed all necessary federal, state, local and foreign tax returns which are
required to be filed and have paid all taxes shown as due thereon and have paid
all other taxes and assessments to the extent that the same shall have become
due, except such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Company and the Subsidiaries on a consolidated
basis. The Company has no knowledge of any tax deficiency which has been or
might be assessed against the Company or the Subsidiaries which, if the subject
of an unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries on a
consolidated basis.
(dd) The Company is in compliance with all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); the Company has no "pension plan" (as defined in ERISA)
for which it would have any liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, that would cause
the loss of such qualification.
(ee) Each of the material contracts, agreements and instruments
described or referred to in the Registration Statement or the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus) and
each contract, agreement and instrument filed as an exhibit to the Registration
Statement or incorporated by reference into the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), is in full force and effect and is the legal, valid and
binding agreement of the Company or the Subsidiaries, enforceable in accordance
with its terms, except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally. Except as disclosed in the Prospectus (or such
Preliminary Prospectus), to the knowledge of the Company, no other party to any
such agreement is (with or without notice or lapse of time or both) in breach or
default in any material respect thereunder; provided, however, that the
foregoing shall not apply to defaults by borrowers from the Banks.
(ff) Except as described in the Registration Statement or Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), neither the Company nor any of the Subsidiaries has sent or
received any notice indicating the termination of or intention to terminate any
of the material contracts, agreements or instruments described or referred to in
the Registration Statement or the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), or filed as an exhibit to
the Registration Statement or any of the documents incorporated by reference
into the Registration Statement or the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), the termination of which
would have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis, and no such termination has been
threatened by the Company, any Subsidiary or any other party to such contract or
agreement, except as would not have material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
12
(gg) No relationship, direct or indirect, exists between or among the
Company or the Subsidiaries, on the one hand, and the directors, officers,
trustees, stockholders, customers or suppliers of the Company or the
Subsidiaries, on the other hand, which is required to be described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) which is not adequately
described therein.
(hh) No person has the right to request or require the Company or the
Subsidiaries to register any securities for offering and sale under the 1933 Act
by reason of the filing of the Registration Statement with the Commission, the
issuance of the Shares to be sold by the Company or the sale of the Shares.
(ii) Additional shares of Common Stock have been approved for quotation
on the Nasdaq National Market subject to official notice of issuance, and will
be quoted on a "when issued" basis prior to the Closing, such that all of the
Shares are quoted on, or have been approved for quotation (subject to official
notice of issuance) on, the Nasdaq National Market.
(jj) Except as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
contractual encumbrances or restrictions or legal restrictions, on the ability
of the 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.
(kk) Neither the Company nor any of the Subsidiaries is, nor will be
after receipt of payment for the Shares, an "investment company" or any entity
"controlled" by an "investment company" within the meaning of such term under
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
and the rules and regulations of the Commission thereunder. The Company and the
Subsidiaries will conduct their business in a manner so that they will not
become subject to the Investment Company Act.
(ll) The Company has not distributed and will not distribute prior to
the Closing Date any offering material in connection with the offering of the
Shares, other than a Preliminary Prospectus, the Prospectus, the Registration
Statement and the other materials permitted by the 1933 Act and the 1933 Act
Regulations and reviewed by the Representatives.
(mm) There are no affiliations or associations between any member of
the NASD and any of the Company's officers, directors or 5% or greater security
holders.
(nn) Neither the Company nor any of the Banks has received any notice
of non-compliance with the applicable provisions of the Community Reinvestment
Act ("CRA") and the regulations promulgated thereunder, and each of the Banks
has received a CRA rating of satisfactory or better from the FDIC or other
applicable governmental authority. The Company knows of no facts or
circumstances that would cause any of the Banks to fail to comply with such
provisions or cause the CRA rating of either of the Banks to fall below
satisfactory.
13
(oo) To the best knowledge of the Company, each of the Company and the
Subsidiaries has properly administered all accounts for which any of them acts
as a fiduciary, including, but not limited to, accounts for which any of them
serves as a trustee, agent, custodian, personal representative, guardian,
conservator or investment adviser, in accordance with the terms of the governing
documents and applicable state and Federal law and regulation and common law,
except where the failure to have so administered or to be in compliance would
not have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects, or results of operations of the Company
and the Subsidiaries on a consolidated basis. None of the Company, the
Subsidiaries or any of their respective directors, officers or employees has
committed any material breach of trust with respect to any such fiduciary
account, and the accountings for each such fiduciary account are true and
correct in all material respects and accurately reflect the assets of such
fiduciary account in all material respects.
(pp) Each agreement under which the Company and the Subsidiaries
provides investment advisory service to any person that is subject to Section 15
of the Investment Company Act has been fully approved at all times in compliance
in all material respects with Section 15 of the Investment Company Act and
applicable Law. Except where the failure, either individually or in the
aggregate, would not have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects, or results of operations
of the Company and the Subsidiaries on a consolidated basis, each such
investment advisory contract has been performed in accordance with the
Investment Company Act and any other applicable Law.
(qq) The information contained in the Registration Statement and the
Prospectus regarding the Company's expectations, plans and intentions, and any
other information that constitutes "forward-looking" information within the
meaning of the 1933 Act and the 1934 Act, were made by the Company and its
management on a reasonable basis and in the exercise of their reasonable
judgment, and reflect the Company's and its management's good faith belief or
estimate of the matters described therein.
(rr) Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in connection with the
offering of the Shares contemplated hereby shall be deemed a representation and
warranty by the Company made as of the date of such certificate (except to the
extent a date is specified in such representation or warranty, in which case
such representation or warranty shall be deemed made as of such date) to each
Underwriter and shall be deemed to be a part of this Section 2 and incorporated
herein by reference.
(ss) The Company is in compliance in all material respects with the
applicable provisions of the Xxxxxxxx-Xxxxx Act.
3. Offering by the Underwriters. After the Registration Statement
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriters propose to offer the Firm
Shares for sale to the public upon the terms and conditions set forth in the
Prospectus. The Underwriters may from time to time thereafter reduce the public
offering price and change the other selling terms, provided the proceeds to the
Company shall not be reduced as a result of such reduction or change.
The Underwriters may reserve and sell such of the Shares purchased by
the Underwriters as the Underwriters may elect to dealers chosen by them (the
"Selected Dealers") at the public offering price set forth in the Prospectus
less the applicable Selected Dealers' concessions set forth therein, for
re-offering by Selected Dealers to the public at the public offering price. The
Underwriters may allow, and Selected Dealers may re-allow, a concession set
forth in the Prospectus to certain other brokers and dealers.
14
4. Certain Covenants of the Company. The Company covenants with each of
the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration
Statement and any amendments thereto, if not effective at the time of execution
of this Agreement, to become effective as promptly as possible. If the
Registration Statement has become or becomes effective pursuant to Rule 430A and
information has been omitted therefrom in reliance on Rule 430A, then, the
Company will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted and will provide evidence satisfactory to the
Representatives of such timely filing.
(b) The Company shall notify you immediately, and confirm such notice
in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when
the Prospectus or any supplement to the Prospectus or any amended
Prospectus has been filed;
(ii) of the receipt of any comments or requests from the
Commission relating in any way to the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendments or
supplements to any of the aforementioned of any request of the
Commission to amend or supplement the Registration Statement, any
Preliminary Prospectus or the Prospectus or for additional information;
and
(iii) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, or suspending
the qualification of any of the Shares for offering or sale in any
jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Company shall use its best
efforts to prevent the issuance of any such stop order or of any other
such order and if any such order is issued, to cause such order to be
withdrawn or lifted as soon as possible.
(c) The Company shall furnish to you, from time to time without charge,
as soon as available, as many copies as you may reasonably request of (i) the
registration statement as originally filed and of all amendments and supplements
thereto, in executed form, including exhibits, whether filed before or after the
Registration Statement becomes effective, (ii) all exhibits and documents
incorporated therein or filed therewith, (iii) all consents and certificates of
experts in executed form, (iv) each Preliminary Prospectus and all amendments
and supplements thereto, and (v) the Prospectus, and all amendments and
supplements thereto.
15
(d) During the time when a prospectus is required to be delivered under
the 1933 Act, the Company shall comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Shares as contemplated herein and in the
Prospectus. The Company shall not file any amendment to the registration
statement as originally filed or to the Registration Statement and shall not
file any amendment thereto or make any amendment or supplement to any
Preliminary Prospectus or to the Prospectus and will not file any document under
the 1934 Act before the termination of the offering of the Shares by the
Underwriters if the document would be deemed to be incorporated by reference
into the Registration Statement or the Prospectus of which you shall not
previously have been advised in writing and provided a copy within a reasonable
time prior to the proposed filings thereof or to which you or your counsel shall
reasonably object. If it is necessary, in your reasonable opinion or in the
reasonable opinion of counsel for the Underwriters, to amend or supplement the
Registration Statement or the Prospectus in connection with the distribution of
the Shares, the Company shall forthwith amend or supplement the Registration
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission, and furnishing to you, such number of copies as you may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or the Prospectus, as the case may be
(in form and substance reasonably satisfactory to you and to counsel for the
Underwriters). If any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus to correct an untrue statement of fact or to
include any fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any reason
it is necessary at any time to amend or supplement the Prospectus to comply with
the 1933 Act and the 1933 Act Regulations, the Company shall, subject to the
second sentence of this subsection (d), forthwith amend or supplement the
Prospectus by preparing and filing with the Commission, and furnishing to you,
such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory to you and to counsel for the Underwriters) so that, as
so amended or supplemented, the Prospectus shall not contain an untrue statement
of fact or omit to state any fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(e) The Company shall cooperate with you and counsel for the
Underwriters in order to qualify the Shares for offering and sale under the
securities or blue sky laws of such jurisdictions as you may reasonably request
and shall continue such qualifications in effect so long as may be advisable for
distribution of the Shares; provided, however, that the Company shall not be
required to qualify to do business as a foreign corporation or file a general
consent to service of process in any jurisdiction in connection with the
foregoing. The Company shall file such statements and reports as may be required
by the laws of each jurisdiction in which the Shares have been qualified as
above. The Company will notify you immediately of, and confirm in writing, the
suspension of qualification of the Shares or threat thereof in any jurisdiction.
(f) The Company shall make generally available to its security holders
in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish
to you as soon as practicable, but in any event not later than 16 months after
the Effective Date, a consolidated earnings statement of the Company conforming
with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Company shall use the proceeds from the sale of the Shares to
be sold by the Company hereunder in the manner specified in the Prospectus under
the caption "Use of Proceeds."
(h) For 5 years from the Effective Date, the Company shall furnish to
the Representatives copies of all reports and communications (financial or
otherwise) furnished by the Company to the holders of the Common Stock as a
class, copies of all reports and financial statements filed with or furnished to
the Commission (other than portions for which confidential treatment has been
obtained from the Commission) or with any national securities exchange or the
Nasdaq National Market and such other documents, reports and information
concerning the business and financial condition of the Company as the
Representatives may reasonably request, other than such documents, reports and
information for which the Company has the legal obligation not to reveal to the
Representatives.
16
(i) For a period of 90 days from the date hereof, the Company shall
not, directly or indirectly, offer for sale, sell or agree to sell or otherwise
dispose of any shares of Common Stock, or any securities convertible into,
exercisable or exchangeable for, or that are the economic or voting equivalent
of, any such shares of Common Stock, or announce the offering of, or register
with the Commission, any shares of Common Stock or any such other securities,
without your prior written consent; and the Company will use its best efforts to
cause the persons listed on Schedules II and III hereto not to, directly or
indirectly, offer for sale, sell or agree to sell or otherwise dispose of
(except for bona fide gifts) any shares of Common Stock, or any securities
convertible into, exercisable or exchangeable for, or that are the economic or
voting equivalent of, any shares of Common Stock for a period of 90 days from
the date hereof without your prior written consent; provided, however, that with
respect to the persons listed on Schedule III hereto, such period shall be 90
days from the date hereof.
(j) The Company shall use its best efforts to obtain approval for
additional shares of Common Stock (such that all of the Shares shall be quoted
on or approved for quotation on the Nasdaq National Market), and maintain the
quotation of the Common Stock on the Nasdaq National Market, or in lieu thereof
a national securities exchange, and to remain so quoted for at least 5 years
from the Effective Date or for such shorter period as may be specified in a
written consent of the Representatives.
(k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Shares under the 1933 Act or relating
to any documents incorporated by reference into the Registration Statement or
the Prospectus.
(l) Subsequent to the date of this Agreement and through the date which
is the later of (i) the day following the date on which the Underwriters' option
to purchase the Option Shares shall expire or (ii) the day following the Option
Closing Date with respect to any Option Shares 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 liability or obligation, direct or contingent, or enter into any
transaction, except in the ordinary course of business, and there will not be
any change in the financial position, capital stock, or any increase in
long-term debt, obligations under capital leases or short-term borrowings of the
Company and the Subsidiaries on a consolidated basis other than in the ordinary
course of business.
(m) The Company shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Representatives, 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
any of the Company's securities which are convertible into Common Stock.
(n) The Company shall not take, directly or indirectly, any action
designed to result in or which has constituted or which might cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares and the Company is not aware of any
such action taken or to be taken by any affiliate of the Company.
(o) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the Company,
the Subsidiaries or the offering of the Shares without your prior written
consent, which will not be unreasonably withheld.
(p) The Company and the Subsidiaries shall conduct their businesses in
material compliance with all applicable federal and state laws, rules,
regulations, decisions, directives and orders (including, without limitation,
the applicable provisions of the 1933 Act, the 1933 Act Regulations, the 1934
Act, the 1934 Act Regulations, the BHC Act, the National Bank Act, the Federal
Deposit Insurance Corporation Improvement Act, the Oklahoma General Corporation
Act, the Oklahoma banking laws and all decisions, directives and orders of the
FDIC, the OCC, the Oklahoma Banking Commissioner, the Oklahoma Banking Board,
and the Board of Governors of the Federal Reserve System, as applicable).
17
(q) The Company and the Subsidiaries will maintain and keep accurate
books and records reflecting their assets and maintain internal accounting
controls which provide reasonable assurance that (i) transactions are executed
in accordance with management's authorization, (ii) transactions are recorded as
necessary to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the Company and its
Subsidiaries, (iii) access to the assets of the Company and its Subsidiaries is
permitted only in accordance with management's authorization, and (iv) the
recorded accounts of the assets of the Company and its Subsidiaries are compared
with existing assets at reasonable intervals.
5. Payment of Expenses.
(a) Whether or not this Agreement is terminated or the sale of the
Shares to the Underwriters is consummated, the Company covenants and agrees that
it will pay or cause to be paid (directly or by reimbursement) all costs and
expenses incident to the performance of the obligations of the Company under
this Agreement, including:
(i) the preparation, printing, filing, delivery and shipping
of the initial registration statement, the Preliminary Prospectus or
Prospectuses, the Registration Statement and the Prospectus and any
amendments or supplements thereto, and the printing, delivery and
shipping of this Agreement and any other underwriting documents
(including, without limitation, underwriters' questionnaires,
underwriters' powers of attorney, agreements among underwriters and
selected dealers' agreements), the certificates for the Shares and the
Preliminary and Final Blue Sky Memoranda and any legal investment
surveys and any supplements thereto;
(ii) all fees, expenses and disbursements of the Company's
counsel and accountants;
(iii) all fees and expenses incurred in connection with the
qualification of the Shares under the securities or blue sky laws of
such jurisdictions as you may request, including all filing fees and
fees and disbursements of counsel for the Underwriters in connection
therewith, including, without limitation, in connection with the
preparation of the Preliminary and Final Blue Sky Memoranda and any
legal investment surveys and any supplements thereto;
(iv) all fees and expenses incurred in connection with filings
made with the NASD;
(v) any applicable fees and other expenses incurred in
connection with the quotation of additional shares of Common Stock on
the Nasdaq National Market;
(vi) the cost of furnishing to you as many copies as you
reasonably request of the initial registration statements, any
Preliminary Prospectus, the Registration Statement and the Prospectus
and all amendments or supplements thereto;
(vii) the costs and charges of any transfer agent or registrar
and the fees and disbursements of counsel for any transfer agent or
registrar;
18
(viii) all costs and expenses (including stock transfer taxes
relating to the Shares to be sold by the Company) incurred in
connection with the printing, issuance and delivery of the Shares to be
sold by the Company to the Underwriters; and
(ix) all other costs and expenses incident to the performance
of the obligations of the Company hereunder that are not otherwise
specifically provided for in this Section 5.
(b) If the sale of Shares contemplated by this Agreement is not
completed for any reason whatsoever, including, without limitation, if this
Agreement is terminated by the Company or by you for any reason whatsoever,
whether or not such termination is allowable hereunder, the Company will pay you
your accountable out-of-pocket expenses in connection herewith or in
contemplation of the performance of your obligations hereunder, including,
without limitation, travel expenses, reasonable fees, expenses and disbursements
of counsel or other out-of-pocket expenses incurred by you in connection with
any discussion of the offering of the Shares or the contents of the Registration
Statement, any investigation of the Company and the Subsidiaries, or any
preparation for the marketing, purchase, sale or delivery of the Shares in each
case following presentation of reasonably detailed invoices therefor.
If the sale of the Shares contemplated by this Agreement is completed,
the Company shall not be responsible for payment of fees or disbursements of
counsel for the Underwriters other than in accordance with Section 5(a)(iii)
above, or for the reimbursement of any expenses of the Underwriters.
6. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and, following exercise of
the option granted by the Company in Section 1 of this Agreement, the Option
Shares, are subject, in your sole discretion, to the accuracy of and compliance
with the representations and warranties and agreements of the Company herein as
of the date hereof and as of the Closing Date (or in the case of the Option
Shares, if any, as of the Option Closing Date), to the accuracy of the written
statements of the Company and its officers made pursuant to the provisions
hereof, to the performance by the Company of its covenants and obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed prior
to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Company or the Representatives, shall be contemplated by
the Commission or any state authority. Any request on the part of the Commission
or any state authority for additional information (to be included in the
Registration Statement or Prospectus or otherwise) shall have been disclosed to
you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of any fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading.
19
(c) All corporate proceedings and other legal matters incident to the
authorization by the Company, form and validity of this Agreement, and the
authorization by the Company and form of the Registration Statement and
Prospectus, other than financial statements and other financial data, and all
other legal matters relating to this Agreement and the transactions contemplated
hereby shall be satisfactory in all respects to counsel for the Underwriters,
and the Company and the Subsidiaries shall have furnished to such counsel all
documents and information relating thereto that they may reasonably request to
enable them to pass upon such matters.
(d) Xxxxxxx & Baris, L.L.P., counsel for the Company, shall have
furnished to you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Oklahoma,
and is duly registered as a financial holding company under the BHC
Act. Each of the Company, Business Consulting Group, Inc. ("BCG"),
Healthcare Strategic Support, Inc. ("HSS" and, together with the
Company, the Banks, BCG and any other Significant Subsidiary of the
Company, as that term is defined in Rule 1-02(w) of Regulation S-X, the
"Opinion Parties") is duly incorporated or organized (as the case may
be), validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization (as the case may be).
Each of the Company and the Opinion Parties has full corporate power
and authority to own or lease its properties and to conduct its
business as such business is described in the Prospectus in all
material respects and is currently conducted in all material respects.
All outstanding shares of capital stock of the Opinion Parties have
been duly authorized and validly issued and are fully paid and
nonassessable (except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o) and,
to such counsel's actual knowledge, except as disclosed in the
Prospectus, there are no outstanding rights, options or warrants to
purchase any such shares or securities convertible into or exchangeable
for any such shares. Stillwater National Bank is a member of the
Federal Reserve System, and to such counsel's knowledge, no proceedings
for termination or revocation of such membership are pending or
threatened. The deposit accounts of the Banks are insured by the FDIC
up to the maximum amount provided by law, and, to such counsel's
knowledge, no proceedings for the termination or revocation of any such
insurance or such membership are pending or threatened.
(ii) The capital stock of the Company conforms to the
description thereof contained in the Prospectus. The outstanding
capital stock of the Company as of March 31, 2005 is as set forth under
the caption "Capitalization" in the Prospectus, has been duly
authorized and validly issued, is fully paid and nonassessable, and, to
the knowledge of such counsel, not in violation of or subject to any
other rights to subscribe for or purchase any securities. The form of
certificates to evidence the Common Stock has been approved by the
Board of Directors and is in due and proper form and complies with all
applicable requirements. To such counsel's actual knowledge, there are
no outstanding rights, options or warrants to purchase, no other
outstanding securities convertible into or exchangeable for, and no
commitments, plans or arrangements to issue, any shares of capital
stock of the Company, except as described in the Prospectus, other than
issuance to effect a possible stock split as set forth in the minutes
of the Board of Directors of the Company.
(iii) The Company has all requisite corporate power and
authority to issue, sell and deliver the Shares to be sold by the
Company in accordance with and upon the terms and conditions set forth
in this Agreement and in the Registration Statement and the Prospectus.
All corporate action required to be taken by the Company for the
authorization, issuance, sale and delivery of the Shares to be sold by
the Company has been validly and sufficiently taken. All of the Shares
to be sold by the Company have been duly and validly authorized and,
when delivered in accordance with this Agreement, will be duly and
validly issued, fully paid and nonassessable, and will conform to the
description thereof in the Registration Statement and the Prospectus.
Additional shares of Common Stock have been approved for quotation on
the Nasdaq National Market subject to official notice of issuance, such
that all of the Shares are quoted on, or have been approved for
quotation (subject to official notice of issuance) on, the Nasdaq
National Market. There are no preemptive or other rights to subscribe
for or to purchase, and other than as disclosed in the Prospectus no
restrictions upon the voting or transfer of, any shares of capital
stock of the Company or the Opinion Parties pursuant to the corporate
charter, by-laws or other governing documents of the Company or the
Opinion Parties, or, to such counsel's actual knowledge, any agreement
or other instrument to which the Company or any of the Opinion Parties
is a party or by which the Company or any of the Opinion Parties may be
bound.
20
(iv) The Company has all requisite corporate power to enter
into and perform its obligations under this Agreement and this
Agreement has been duly and validly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding obligation
of the Company enforceable in accordance with its terms, except as the
enforcement hereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting creditors' rights
generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain
remedies may not be available in the case of a non-material breach.
(v) To such counsel's actual knowledge, neither the Company
nor any other Opinion Party is in breach or violation of, or default
under, with or without notice or lapse of time or both, its corporate
charter, by-laws or other governing document. The execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated herein do not and will not conflict with,
result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the
Company or any Opinion Party or the Shares to be sold by the Company
pursuant to, or constitute a material breach or violation of, or
constitute a default under, with or without notice or lapse of time or
both, any of the terms, provisions or conditions of the charter,
by-laws or other governing document of the Company or any Opinion
Party, or to such counsel's actual knowledge, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license or any other agreement or instrument to which the
either the Company or any other Opinion Party is a party or by which
any of them or any of their respective properties may be bound or any
Permits or any other decree, judgment, rule or regulation, of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Company or an Opinion Party or any of their
respective properties which, in each case, is material to the Company
on a consolidated basis.
(vi) To the best of such counsel's actual knowledge, holders
of securities of the Company either do not have any right that, if
exercised, would require the Company to cause such securities to be
included in the Registration Statement or have waived such right,
except as adequately disclosed in the Prospectus. To the best of such
counsel's actual knowledge, neither the Company nor any other Opinion
Party is a party to any agreement or other instrument which grants
rights for or relating to the registration of any securities of the
Company except as adequately disclosed in the Prospectus.
(vii) Except as set forth in the Registration Statement and
the Prospectus, to such counsel's actual knowledge, no action, suit or
proceeding at law or in equity is pending or threatened in writing to
which the Company or any other Opinion Party is or may be a party, and
no action, suit or proceeding is pending or threatened in writing
against or affecting the Company or any other Opinion Party or any of
their properties before or by any court or governmental official,
commission, board or other administrative agency, authority or body, or
any arbitrator, wherein an unfavorable decision, ruling or finding
could reasonably be expected to have a material adverse effect on the
consummation of this Agreement or the issuance of the Shares to be sold
by the Company or the sale of the Shares as contemplated herein or the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus and is not so disclosed.
21
(viii) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required to be made by the Company or any other Opinion Party in
connection with the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, except such as have been
obtained under the 1933 Act, and such as may be required under state
securities laws or Interpretations or Rules of the NASD in connection
with the purchase and distribution of the Shares by the Underwriters,
and from the Nasdaq National Market relating to the approval for
quotation of the additional shares of Common Stock. The issuance of the
Shares and the share repurchase described in the Prospectus have been
conducted in compliance with applicable federal securities laws, rules
and regulations.
(ix) The Registration Statement and the Prospectus and any
amendments or supplements thereto and any documents incorporated
therein by reference (other than the financial statements or other
financial data included therein or omitted therefrom and Underwriters'
Information as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations as of their respective dates of
effectiveness; the conditions for use of Form S-3 have been satisfied;
and, except as amended or superseded by a subsequently filed document,
as of the date they were filed with the Commission, the documents
incorporated by reference in the Prospectus appear on their face to
comply as to form and be appropriately responsive in all material
respects with the requirements of the 1934 Act and the applicable 1934
Act Regulations (other than the financial statements or other financial
data included therein or omitted therefrom).
(x) To such counsel's actual knowledge, there are no
contracts, agreements, leases or other documents of a character
required to be disclosed in the Registration Statement or Prospectus or
to be filed as exhibits to the Registration Statement that are not so
disclosed or filed.
(xi) The statements under the captions "Risk Factors" and
"Capitalization" in the Prospectus and in Item 15 of Part II of the
Registration Statement and in the Company's Annual Report on Form 10-K
for the year ended December 31, 2004 under Item 1, "Business --
General" and "Regulation, Supervision, and Governmental Policy", Item
11, "Executive Compensation" and Item 13, "Certain Relationships and
Related Transactions" and the description of common stock incorporated
by reference in the Prospectus, insofar as such statements constitute a
summary of legal and regulatory matters, documents or proceedings
referred to therein are accurate descriptions of the matters summarized
therein in all material respects and fairly present the information
called for with respect to such legal and regulatory matters, documents
and proceedings in all material respects, other than financial and
statistical data as to which said counsel expresses no opinion or
belief.
(xii) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under
the 1933 Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made within the time period required by Rule 424(b); to
the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for a stop order are pending or threatened by the
Commission.
(xiii) Except as described in or contemplated by the
Prospectus, to the best of such counsel's knowledge, there are no
contractual encumbrances or restrictions, or no material legal
restrictions (excluding any encumbrances or restrictions of general
application to national banks contained in laws, rules and regulations
of applicable regulatory authorities) required to be described therein,
on the ability of the Opinion Parties (A) to pay dividends or make any
other distributions on its capital stock or to pay 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.
22
(xiv) To such counsel's actual knowledge, (A) the business and
operations of the Company and the Opinion Parties comply in all
material respects with all statutes, ordinances, laws, rules and
regulations applicable thereto, except in those instances where
non-compliance would not materially impair the ability of the Company
and the Subsidiaries to conduct their businesses; and (B) the Company
and the Opinion Parties possess and are operating in all material
respects in compliance with the terms, provisions and conditions of all
Permits known to such counsel and required to conduct their businesses
as described in the Prospectus and which are material to the Company
and the Subsidiaries on a consolidated basis, except in those instances
where the loss thereof or non-compliance therewith would not have an
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis; such counsel has no
actual knowledge that any such Permit is not valid and in full force
and effect, and such counsel has no actual knowledge of any action,
suit or proceeding that is pending or threatened (or any basis
therefor) which may lead to the revocation, termination, suspension or
non-renewal of any such Permit, except in those instances where the
loss thereof or non-compliance therewith would not materially impair
the ability of the Company or the Opinion Parties to conduct their
businesses.
In giving this opinion, such counsel may rely, as to matters governed
by the laws of Oklahoma and as to the ownership of the capital stock of the Bank
by the Company, and the due authorization and valid issuance of fully paid and
nonassessable stock of the Company and its Subsidiaries, upon the opinion of
Xxxx Xxxxx & Xxxxxx, P.C. rendered pursuant to Section 6(e) hereof. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied upon certificates of officers of the Company including, without
limitation, certificates as to the identity of any and all material contracts,
indentures, mortgages, deeds of trust, loans or credit agreements, notes,
leases, franchises, licenses or other agreements or instruments, and all
material permits, easements, consents, licenses, franchises and government
regulatory authorizations, for purposes of paragraphs (v), (x) and (xiv) hereof
and certificates of public officials.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Company and
with its independent public accountants and with the Representatives and their
counsel, at which conferences such counsel made inquiries of such officers,
representatives and accountants and discussed in detail the contents of the
Registration Statement and Prospectus and the documents incorporated therein by
reference and such counsel has no reason to believe (A) that the Registration
Statement or any amendment thereto (except for the financial statements and
related schedules and statistical data included therein or omitted therefrom,
and the Underwriters' Information, as to which such counsel need express no
opinion), at the time the Registration Statement or any such amendment became
effective, contained any untrue statement of material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or (B) that the Prospectus or any amendment or supplement thereto
or the documents incorporated therein by reference (except for the financial
statements and related schedules and statistical data included therein or
omitted therefrom, and the Underwriters' Information, as to which such counsel
need express no opinion), at the time the Registration Statement became
effective (or, if the term "Prospectus" refers to the prospectus first filed
pursuant to Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus
was issued), at the time any such amended or supplemented Prospectus was issued,
at the Closing Date and, if applicable, the Option Closing Date, contained or
contains any untrue statement of material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (C) that there is any amendment to the Registration Statement
required to be filed that has not already been filed.
23
(e) Xxxxx X. Xxxxx, III, counsel for the Company, shall have furnished
to you his signed opinion, dated the Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to counsel for the
Underwriters, to the effect that the issuance of the Shares and the share
repurchase described in the Prospectus have been conducted in compliance with
applicable federal securities laws, rules and regulations. Such counsel shall
also confirm that, in connection with the preparation of the Registration
Statement and Prospectus, such counsel has participated in conferences with
officers and representatives of the Company and with its independent public
accountants and with the Representatives and their counsel, at which conferences
such counsel made inquiries of such officers, representatives and accountants
and discussed in detail the contents of the Registration Statement and
Prospectus and the documents incorporated therein by reference and such counsel
has no reason to believe (A) that the Registration Statement or any amendment
thereto (except for the financial statements and related schedules and
statistical data included therein or omitted therefrom, and the Underwriters'
Information, as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained any
untrue statement of material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or (B) that the
Prospectus or any amendment or supplement thereto or the documents incorporated
therein by reference (except for the financial statements and related schedules
and statistical data included therein or omitted therefrom, and the
Underwriters' Information, as to which such counsel need express no opinion), at
the time the Registration Statement became effective (or, if the term
"Prospectus" refers to the prospectus first filed pursuant to Rule 424(b) of the
1933 Act Regulations, at the time the Prospectus was issued), at the time any
such amended or supplemented Prospectus was issued, at the Closing Date and, if
applicable, the Option Closing Date, contained or contains any untrue statement
of material fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (C) that there is
any amendment to the Registration Statement required to be filed that has not
already been filed.
(f) Xxxx Xxxxx & Xxxxxx, P.C., counsel for the Company, shall have
furnished to you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) Each of the Opinion Parties, Cash Source, Inc. ("CSI"),
CRK Properties, Inc. ("CRK"), SWB, Inc. ("SWB"), SNB Insurance Agency,
Inc. ("SNB Insurance"), Stillwater National Building Corporation
("SNBC"), BNS, Inc. ("BNS"), Stillwater Properties, Inc. ("SPI") and
Grand Hill Investments, LLC ("GHI") has been duly incorporated and is
validly existing and in good standing under the laws of the State of
Oklahoma. The Company is duly registered as a financial holding company
under the BHC Act. Stillwater National Bank is a national banking
association duly incorporated, validly existing and in good standing
under the laws of the United States of America. Stillwater National
Bank is a member of the Federal Reserve System, and to the knowledge of
such counsel, no proceedings for the termination or revocation of such
membership are pending or threatened. The deposit accounts of the Banks
are insured by the FDIC up to the maximum amount provided by law, and
to the knowledge of such counsel, no proceedings for the termination or
revocation of any such insurance or such membership are pending or
threatened. Each of the Opinion Parties has full corporate power and
authority to conduct its business as described in the Prospectus in all
material respects and as currently conducted in all material respects.
Except as disclosed in the Prospectus, to the best of such counsel's
knowledge, the Company owns directly, free and clear of any security
interests, mortgage, pledge, lien, charge, encumbrance, restriction
upon voting or transfer, preemptive rights or any other claim or
equity, (A) all outstanding shares of capital stock of the Subsidiaries
other than SBI Capital Trust I, OKSB Statutory Trust I, and SBI Capital
Trust II and (B) all of the outstanding common securities of SBI
Capital Trust I, OKSB Statutory Trust I and SBI Capital Trust II. All
of such shares of capital stock of the Subsidiaries have been duly
authorized and validly issued and are fully paid and nonassessable
(except to the extent such shares may be deemed assessable under 12
U.S.C. Section 55 or 12 U.S.C. Section 1831o) and, to the best of such
counsel's knowledge, except as disclosed in the Prospectus, there are
no outstanding rights, options or warrants to purchase any such shares
or common securities or securities convertible into or exchangeable for
any such shares or common securities.
24
(ii) The capital stock of the Company conforms to the
description thereof contained in the Prospectus in all material
respects. The outstanding capital stock of the Company as of March 31,
2005 is as set forth under the caption "Capitalization" in the
Prospectus, has been duly authorized and validly issued, is fully paid
and nonassessable and, to the knowledge of such counsel, has been
issued in compliance with applicable federal and state securities laws
not in violation of or subject to any other rights to subscribe for or
purchase any securities. The form of certificates to evidence the
Common Stock is in due and proper form and complies with all applicable
requirements of Oklahoma law. To the best of such counsel's knowledge,
there are no outstanding rights, options or warrants to purchase, no
other outstanding securities convertible into or exchangeable for, and
no commitments, plans or arrangements to issue, any shares of capital
stock of the Company, except as described in the Prospectus.
(iii) There are no preemptive or other rights to subscribe for
or to purchase, and, other than as described in the Prospectus, no
restrictions upon the voting or transfer of, any shares of capital
stock of the Opinion Parties pursuant to the corporate charter, by-laws
or other governing documents of the Opinion Parties or, to the best of
such counsel's knowledge, pursuant to any agreement or other instrument
to which any of the Opinion Parties is a party or by which any of the
Opinion Parties may be bound.
(iv) The Company has all requisite corporate power to enter
into and perform its obligations under this Agreement and this
Agreement has been duly and validly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding obligation
of the Company enforceable in accordance with its terms, except as the
enforcement hereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting creditors' rights
generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain
remedies may not be available in the case of a non-material breach.
(v) To the best of such counsel's knowledge, neither the
Company, nor any other Opinion Party is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, by-laws or other governing document. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein do not and will not conflict with,
result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of any
Opinion Party or the Shares to be sold by the Company pursuant to, or
constitute a material breach or violation of, or constitute a material
default under, with or without notice or lapse of time or both, any of
the terms, provisions or conditions of the charter, by-laws or other
governing document of any Opinion Party, or to the best knowledge of
such counsel's after due inquiry, any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license or any other agreement or instrument to which any
Opinion Party is a party or by which any of them or any of their
respective properties may be bound or any Permits or any other decree,
judgment, rule or regulation, of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over an Opinion Party or any of their respective
properties which, in each case, is material to the Company on a
consolidated basis. No authorization, approval, consent or order of, or
filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required under Oklahoma law in connection with the transactions
contemplated by this Agreement except as may be required under Oklahoma
securities laws in connection with the purchase and distribution of the
Shares by the Underwriters.
25
(vi) To the best of such counsel's knowledge, holders of
securities of the Company either do not have any right that, if
exercised, would require the Company to cause such securities to be
included in the Registration Statement or have waived such right,
except as adequately disclosed in the Prospectus. To the best of such
counsel's knowledge, neither the Company nor any other Opinion Party is
a party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Company except as
described in the Prospectus.
(vii) Except as set forth in the Registration Statement and
the Prospectus, to the best of such counsel's knowledge, no action,
suit or proceeding at law or in equity is pending or threatened in
writing to which the Company or any of the Subsidiaries is or may be a
party, and no action, suit or proceeding is pending or threatened in
writing against or affecting the Company or any of the Subsidiaries or
any of their properties before or by any court or governmental
official, commission, board or other administrative agency, authority
or body, or any arbitrator, wherein an unfavorable decision, ruling or
finding could reasonably be expected to have a material adverse effect
on the consummation of this Agreement or the transactions contemplated
herein or the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(viii) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required under Oklahoma law in connection with the transactions
contemplated by this Agreement except such as may be required under
Oklahoma securities laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(ix) To such counsel's knowledge, based solely upon
identification of material contracts, agreements, leases and other
material documents by the Company, there is no material contract,
agreement, lease, or other document which has not been made in the
ordinary course of business and either is to be performed in whole or
in part at or after January 26, 2005 or within the preceding
twenty-four months and (A) to which any director, officer, or
security-holder named in the Registration Statement is a party (other
than any contract involving only the purchase or sale of current assets
having a determinable market price, at such market price); (B) call for
the acquisition or sale of any property or equipment for a
consideration exceeding fifteen percent (15%) of consolidated fixed
assets of the Company at December 31, 2004; (C) is a material lease
under which any of the Opinion Parties holds property described in the
Registration Statement; or (D) is a management contract or compensatory
plan, contract or arrangement in which any director or any officer of
the Company named in the Registration Statement participates, and which
has not been described in or filed as an exhibit to the Registration
Statement.
(x) The statements under the captions "Risk Factors" and
"Capitalization" in the Prospectus and in Item 15 of Part II of the
Registration Statement and in the Company's Annual Report on Form 10-K
for the year ended December 31, 2004 under Item 1, "Business --
General" and "Regulation, Supervision and Governmental Policy", Item
11, "Executive Compensation" and Item 13, "Certain Relationships and
Related Transactions," and the description of common stock incorporated
by reference in the Prospectus, insofar as such statements constitute a
summary of legal and regulatory matters, documents or proceedings
referred to therein and depend upon, refer to, or describe Oklahoma
law, are, to the best of such counsel's knowledge, accurate in all
material respects and fairly present the information called for with
respect to such legal and regulatory matters, documents and
proceedings.
26
(xi) Except as set forth in the Prospectus, to the best of
such counsel's knowledge, there are no contractual encumbrances or
restrictions, or material legal restrictions, on the ability of the
Subsidiaries (A) to pay dividends or make any other distributions on
its capital stock or to pay 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.
(xii) To the best of such counsel's knowledge, (A) the
business and operations of the Company and the Subsidiaries comply in
all material respects with all statutes, ordinances, laws, rules and
regulations applicable thereto and which are material to the Company
and the Subsidiaries on a consolidated basis, except in those instances
where non-compliance would not materially impair the ability of the
Company or any of its Subsidiaries to conduct their businesses; and (B)
the Company and the Subsidiaries possess and are operating in all
material respects in compliance with the terms, provisions and
conditions of all Permits known to such counsel and required to conduct
their businesses as described in the Prospectus and which are material
to the Company and the Subsidiaries on a consolidated basis, except in
those instances where the loss thereof or non-compliance therewith
would not have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis,
such counsel has no knowledge that any such Permit is not valid and in
full force and effect, and such counsel has no knowledge of any action,
suit or proceeding that is pending or threatened (or any basis
therefor) which may lead to the revocation, termination, suspension of
any such Permit, except in those instances where the loss thereof or
non-compliance therewith would not materially impair the ability of the
Company or any of its Subsidiaries to conduct their businesses.
In giving this opinion such counsel may state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company, including, without
limitation, certificates as to the identity of any and all material contracts,
indentures, mortgages, deeds of trust, loans or credit agreements, notes,
leases, franchises, licenses or other agreements or instruments, and all
material permits, consents, licenses, franchises and government regulatory
authorizations, for purposes of paragraphs (v), (ix) and (xii) hereof and
certificates of public officials.
Such counsel shall state that Xxxxxxx & Baris, L.L.P. and Xxxxx Xxxx
LLP may rely on their opinion in rendering the opinions required by Sections
6(d) and 6(g).
(g) Xxxxx Xxxx LLP, counsel for the Underwriters, shall have furnished
you their signed opinion, dated the Closing Date or the Option Closing Date, as
the case may be, with respect to the sufficiency of all corporate procedures and
other legal matters relating to this Agreement, the validity of the Shares, the
Registration Statement, the Prospectus and such other related matters as you may
reasonably request and there shall have been furnished to such counsel such
documents and other information as they may request to enable them to pass on
such matters. In giving such opinion, Xxxxx Xxxx LLP may rely as to matters of
fact upon statements and certifications of officers of the Company and of other
appropriate persons and may rely as to matters of law, other than law of the
United States and the State of Missouri, and upon the opinions of Xxxxx X.
Xxxxx, III, Xxxxxxx & Baris, L.L.P. and Xxxx Xxxxx & Xxxxxx, P.C. described
herein.
(h) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives on behalf of the
Underwriters shall have received from Ernst & Young LLP a letter, dated the date
of this Agreement and the Closing Date (and, if applicable, the Option Closing
Date), respectively, in form and substance satisfactory to the Representatives,
confirming that they are independent public accountants with respect to the
Company and the Subsidiaries, within the meaning of the 1933 Act and the 1933
Act Regulations, and stating in effect that:
27
(i) In their opinion, the consolidated financial statements,
including the notes thereto, of the Company and its Subsidiaries
audited by them and included or incorporated by reference in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations.
(ii) On the basis of the procedures specified by the Public
Company Accounting Oversight Board (United States) for a review of
interim financial information as described in AU722, "Interim Financial
Information", inquiries of officials of the Company and its
Subsidiaries responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such letter,
which procedures do not constitute an audit in accordance with U.S.
generally accepted auditing standards, nothing came to their attention
that caused them to believe that, if applicable, the unaudited interim
consolidated financial statements of the Company and its Subsidiaries
included in the Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements of the
1934 Act and 1934 Act Regulations or are not in conformity with U.S.
generally accepted accounting principles applied on a basis
substantially consistent, except as noted in the Registration Statement
with the basis for the audited consolidated financial statements of the
Company and its Subsidiaries included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements
of the Company and its Subsidiaries and other information referred to
below, a reading of the latest available unaudited financial statements
of the Company and its Subsidiaries, inspection of the minute books of
the Company and its Subsidiaries since the date of the latest audited
financial statements of the Company and its Subsidiaries included or
incorporated by reference in the Registration Statement, inquiries of
officials of the Company and its Subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the capital stock, allowance for loan losses, or net loans
receivable of the Company and its Subsidiaries other than
changes related to the Employee Stock Purchase Plan and/or
Dividend Reinvestment Plan, any increase in the long-term
debt, short-term borrowings, obligations under capital leases
or real estate owned of the Company or its Subsidiaries, any
decreases in consolidated total assets or shareholders' equity
of the Company or its Subsidiaries, or any changes, decreases
or increases in other items specified by the Underwriters, in
each case as compared with amounts shown in the latest
unaudited interim consolidated statement of financial
condition of the Company or its Subsidiaries included or
incorporated by reference in the Registration Statement except
in each case for changes, increases or decreases which the
Registration Statement specifically discloses have occurred or
may occur or which are described in such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements included
or incorporated by reference in the Registration Statement to
the specified date referred to in Clause (iii)(A), there were
any decreases in the interest income, net interest income,
other income or net income of the Company and its Subsidiaries
or in the basic and diluted earnings per common share of the
Company and its Subsidiaries, any increase in other expense of
the Company and its Subsidiaries, or any changes, decreases or
increases in any other items specified by the Representatives,
in each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Underwriters, except in each case for
changes, increases or decreases which the Registration
Statement discloses have occurred or may occur, or which are
described in such letter.
28
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (ii) and (iii) above, they have carried out certain
specified procedures, not constituting an audit in accordance with U.S.
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records and consolidated
financial statements of the Company and its Subsidiaries which appear
or are incorporated by reference in the Registration Statement, and
have compared such amounts, percentages and financial information with
the accounting records and the material derived from such records and
consolidated financial statements of the Company and its Subsidiaries
and have found them to be in agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in Clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in Clause
(iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company and its Subsidiaries responsible for financial and
accounting matters, that such changes, decreases, increases or exceptions as are
set forth in such letters do not (x) reflect an adverse change in the items
specified in Clause (iii)(A) above as compared with the amounts shown in the
latest unaudited consolidated statement of financial condition of the Company
and its Subsidiaries included in the Registration Statement, (y) reflect an
adverse change in the items specified in Clause (iii)(B) above as compared with
the corresponding periods of the prior year or other period specified by the
Representatives, or (z) reflect a material change in items specified in Clause
(iv) above from the amounts shown in the Preliminary Prospectus distributed by
the Underwriters in connection with the offering contemplated hereby or from the
amounts shown in the Prospectus.
(i) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of each of the chief executive officer and
the chief financial and accounting officer of the Company, which certificates
shall be deemed to be made on behalf of the Company, dated as of the Closing
Date and, if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (A) the representations and
warranties of the Company set forth in Section 2 hereof are accurate as of the
Closing Date and, if applicable, the Option Closing Date, and that the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such Closing Date; (B) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change in the
condition (financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Company and the Subsidiaries on a consolidated
basis; (C) since such dates there has not been any material transaction entered
into by the Company or the Subsidiaries other than transactions in the ordinary
course of business; (D) each such officer has carefully examined the
Registration Statement and the Prospectus as amended or supplemented and all
documents incorporated therein by reference and nothing has come to its or his
attention that would lead it or him to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto or any
document incorporated therein by reference as of their respective effective or
issue dates, contained, and the Prospectus as amended or supplemented and any
document incorporated therein by reference at such Closing Date (and, if
applicable, the Option Closing Date), contains any untrue statement of fact, or
omits to state any 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 (E) covering such other matters as you may
request. The officers' certificate of the Company shall further state that no
stop order affecting the Registration Statement is in effect or, to their
knowledge, threatened.
(j) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to any Underwriter's participation in such
offering.
29
(k) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Company shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
(l) Prior to the date hereof, each person identified on Schedule II and
III hereto shall have executed and delivered to the Underwriters an agreement,
in form satisfactory to the Underwriters, providing that such person shall not,
for a period of 90 days or 180 days, as the case may be, from the date hereof,
directly or indirectly, offer for sale, sell or agree to sell or otherwise
dispose of (except for bona fide gifts) any shares of Common Stock, or any
securities convertible into, exercisable or exchangeable for, or that are the
economic or voting equivalent of, any such shares of Common Stock without your
prior written consent.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel. Any certificate signed by an
officer of the Company and delivered to you pursuant hereto shall also be deemed
to be a representation and warranty of the Company to the Underwriters as to the
statements made therein. The Company shall furnish you with conformed copies of
such opinions, certificates, letters and other documents as you shall reasonably
request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all
obligations of the Underwriters hereunder may be terminated by you on notice to
the Company at, or at any time before, the Closing Date or the Option Closing
Date, as applicable. Any such termination shall be without liability of the
Underwriters to the Company.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
each of its directors, officers and agents, and each person, if any, who
controls any Underwriter within the meaning of the 1933 Act, against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation and reasonable attorneys' fees and expenses), joint or several,
arising out of or based (i) upon any untrue statement or alleged untrue
statement of fact made by the Company contained in Section 2(a) of this
Agreement (or any certificate delivered by the Company pursuant hereto) or the
registration statement as originally filed or the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, (ii) upon any blue sky application or other document executed by the
Company specifically for that purpose or based upon written information
furnished by the Company filed in any state or other jurisdiction in order to
qualify any of the Shares under the securities laws thereof (any such
application, document or information being hereinafter referred to as a "Blue
Sky Application"), (iii) any omission or alleged omission to state a fact in the
registration statement as originally filed or the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application required to be stated therein or
necessary to make the statements therein not misleading, and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation and attorneys' fees and expenses), joint or several, arising out
of or based upon any untrue statement or alleged untrue statement of fact
contained in any Preliminary Prospectus or the Prospectus, or in any amendment
or supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (iv) the enforcement of this
indemnification provision or the contribution provisions of Section 7(e); and
shall reimburse each such indemnified party for any reasonable legal or other
expenses as incurred, but in no event less frequently than 30 days after each
invoice is submitted, incurred by them in connection with investigating or
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action, notwithstanding the possibility
that payments for such expenses might later be held to be improper, in which
case such payments shall be promptly refunded; provided, however, that the
Company shall not be liable in any such case to the extent, but only to the
extent, that any such losses, claims, damages, liabilities and expenses arise
out of or are based upon any untrue statement or omission or allegation thereof
that has been made therein or omitted therefrom in reliance upon and in
conformity with information furnished in writing to the Company through you by
or on behalf of any Underwriter expressly for use therein beneath the heading
"Underwriting;" provided, that the indemnification contained in this paragraph
with respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or of any of its directors, officers or agents or any person
controlling such Underwriter) to the extent any such losses, claims, damages,
liabilities or expenses directly results from the fact that such Underwriter
sold Shares to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have been furnished
to such Underwriter in sufficient time to distribute same with or prior to the
written confirmation of the sale involved), if required by law, and if such
loss, claim, damage, liability or expense would not have arisen but for the
failure to give or send such person such document. The foregoing indemnity
agreement is in addition to any liability the Company may otherwise have to any
such indemnified party.
30
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement (and each person, if any, who controls the
Company within the meaning of the 1933 Act), to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to information relating to such Underwriter furnished in writing to the
Company through you by or on behalf of it expressly for use in connection with
the registration statement as originally filed, the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
beneath the heading "Underwriting" or in a Blue Sky Application. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to any such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person); it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for
such indemnified party and controlling persons, such firm shall be designated in
writing by the indemnified party. Each indemnified party and each controlling
person, as a condition of such indemnity, shall use reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. The indemnifying party shall not be liable for any settlement of any such
action effected without its written consent, but if there be a final judgment
for the plaintiff in any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party and any such controlling person from and
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
31
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement of the indemnifying party to each indemnified party, that
notwithstanding any federal, state or common law, such settlement, compromise or
consent shall not alter the right of any indemnified party or controlling person
to indemnification or contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be allocated pro rata on the basis of the total
underwriting discounts, commissions and compensation received by the
Underwriters relative to the total net proceeds from the offering of the Shares
(before deducting expenses) received by the Company, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Company on the one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of or the omission or alleged omission to state a fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
paragraph (e) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in the first
sentence of this paragraph (e) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this paragraph (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
32
For purposes of this paragraph (e), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of the 1933 Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
preceding paragraph. The Underwriters' obligations in this paragraph (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint. The obligations of the Company under this paragraph
(e) shall be in addition to any liability which the Company may otherwise have
and the obligations of the Underwriters under this paragraph (e) shall be in
addition to any liability that the respective Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, or such
directors, trustees or officers (or any person controlling the Company), (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of any Underwriter or of the Company,
such directors, trustees or officers (or of any person controlling any
Underwriter, the Company) shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
8. Termination. You shall have the right to terminate this Agreement on
behalf of the Underwriters at any time at or prior to the Closing Date or, with
respect to the Underwriters' obligation to purchase the Option Shares, at any
time at or prior to the Option Closing Date, without liability on the part of
any Underwriter to the Company, if:
(a) the Company shall have failed, refused, or been unable to perform
any agreement on its part to be performed under this Agreement, or any of the
conditions referred to in Section 6 shall not have been fulfilled, when and as
required by this Agreement;
(b) The Company or any of the Subsidiaries shall have sustained any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree which in the judgment of the
Representatives impairs the investment quality of the Shares;
(c) There has been since the respective dates as of which information
is given in the Registration Statement or the Prospectus, any adverse change in,
or any development which is likely to have an adverse effect on, the condition
(financial or otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis, whether
or not arising in the ordinary course of business;
(d) There has occurred any outbreak of hostilities or other calamity or
crisis or change in general economic, political or financial conditions, or
internal conditions, the effect of which on the financial markets of the United
States is such as to make it, in your reasonable judgment, impracticable to
market the Shares or enforce contracts for the sale of the Shares;
33
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority;
(f) A banking moratorium shall have been declared by either federal or
Oklahoma authorities; or
(g) Any action shall have been taken by any government in respect of
its monetary affairs which, in your reasonable judgment, has an adverse effect
on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 5 and 7 hereof.
9. Default of Underwriters. If any Underwriter or Underwriters shall
default in its or their obligations to purchase Shares hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Shares which such defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that the
non-defaulting Underwriters shall be under no obligation to purchase such Shares
if the aggregate number of Shares to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments set
forth in Schedule I hereto, and provided further, that no non-defaulting
Underwriter shall be obligated to purchase Shares to the extent that the number
of such Shares is more than 110% of such Underwriter's underwriting commitment
set forth in Schedule I hereto.
In the event that the non-defaulting Underwriters are not obligated
under the above paragraph to purchase the Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase, the Representatives
may in their discretion arrange for one or more of the Underwriters or for
another party or parties to purchase such Shares on the terms contained herein.
If within one business day after such default the Representatives do not arrange
for the purchase of such Shares, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Shares on such terms.
In the event that the Representatives or the Company do not arrange for
the purchase of any Shares to which a default relates as provided above, this
Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Shares of a defaulting
Underwriter or Underwriters as provided in this Section 9, (i) you shall have
the right to postpone the Closing Date for a period of not more than five full
business days, in order to effect any changes that, in the opinion of counsel to
the Underwriters or the Company, may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
agreements, and the Company agrees promptly to file any amendments to the
Registration Statement or supplements to the Prospectus which, in its opinion,
may thereby be made necessary and (ii) the respective numbers of Shares to be
purchased by the remaining Underwriters or substituted underwriters shall be
taken as the basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
any liability it may have for damages occasioned by its default hereunder. Any
termination of this Agreement pursuant to this Section 9 shall be without
liability on the part of any non-defaulting Underwriter or the Company, except
for expenses to be paid or reimbursed pursuant to Section 5 and except for the
provisions of Section 7.
10. Effective Date of Agreement. If the Registration Statement is not
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Representatives when the Registration Statement becomes effective.
34
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representatives shall
release the Shares for public offering. The Representatives shall notify the
Company immediately after it has taken any action which causes this Agreement to
become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Company, by notifying you, or by you, as Representatives of
the Underwriters, by notifying the Company, except that the provisions of
Sections 5 and 7 shall at all times be effective.
11. Representations, Warranties and Agreements to Survive Delivery. The
representations, warranties, indemnities, agreements and other statements of the
Company and its officers set forth in or made pursuant to this Agreement and the
agreements of the Underwriters contained in Section 7 hereof shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Company or controlling persons of the Company, or by or on
behalf of the Underwriters or controlling persons of any Underwriters or any
termination or cancellation of this Agreement and shall survive delivery of and
payment for the Shares.
12. Notices. Except as otherwise provided in this Agreement, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by registered or
certified mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to the Company shall be sent to 000
Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxx (with a
copy to Xxxxxxx & Baris, L.L.P., 0000 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxx Xxxxxx, Esq. and Xxxxx X. Xxxxx III, Esq., 0000 Xxxxxxxxxxxx
Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx, X.X. 00000); and notices to the Underwriters
shall be sent to Xxxxxx, Xxxxxxxx & Company, Incorporated, 000 Xxxxx Xxxxxxxx,
0xx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx (with a copy to
Xxxxx Xxxx LLP, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxxx, Esq.). In all dealings with the Company under
this Agreement, Xxxxxx, Xxxxxxxx & Company, Incorporated shall act as
representative of and on behalf of the several Underwriters, and the Company
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of the Underwriters, made or given by Xxxxxx, Xxxxxxxx &
Company, Incorporated on behalf of the Underwriters, as if the same shall have
been made or given in writing by the Underwriters.
13. Parties. The Agreement herein set forth is made solely for the
benefit of the Underwriters, the Company and, to the extent expressed, directors
and officers of the Company, any person controlling the Company or any
Underwriter, and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, in his status as such
purchaser, from any Underwriter of the Shares.
14. Governing Law. This Agreement shall be governed by the laws of the
State of Missouri, without giving effect to the choice of law or conflicts of
law principles thereof.
15. Counterparts. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
35
16. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement regarding the purchase and sale of Shares
and intended by be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement among the Company and you in accordance with
its terms.
Very truly yours,
Southwest Bancorp, Inc.
By: _______________________
Xxxx X. Xxxxx
Chief Executive Officer
Confirmed and accepted, as of the date first above written.
Xxxxxx, Xxxxxxxx & Company, Incorporated
Xxxxxx X. Xxxxx & Co. L.L.P.
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Suntrust Capital Markets, Inc.
By: Xxxxxx, Xxxxxxxx & Company, Incorporated
By: ________________________
Xxxx X. Xxxxxx
Senior Managing Director
For itself and as Representatives
of the several Underwriters named in
Schedule I hereto.
36
2070024
Exhibit A
Subsidiaries
JURISDICTION OF
NAME INCORPORATION
----------------------------------------------------------- ---------------
SBI Capital Trust Delaware
OKSB Statutory Trust I Connecticut
SBI Capital Trust II Delaware
Business Consulting Group, Inc. Oklahoma
Healthcare Strategic Support, Inc. Oklahoma
SNB Bank of Wichita United States
Stillwater National Bank and Trust Company United States
Cash Source, Inc.* Oklahoma
CRK Properties, Inc.* Oklahoma
BNS, Inc.** Oklahoma
SWB, Inc.* Oklahoma
SNB Insurance Agency, Inc.* Oklahoma
SNB Real Estate Holdings, Inc.* Delaware
SNB REIT, Inc.*** Delaware
Stillwater National Building Corporation* Oklahoma
Stillwater Properties, Inc.**** Oklahoma
Grand Hill Investments, LLC***** Oklahoma
--------------------
* Direct subsidiary of Stillwater National Bank and Trust Company
** Direct subsidiary of CRK Properties, Inc.
*** Direct subsidiary of SNB Real Estate Holdings, Inc.
**** Direct subsidiary of Stillwater National Building Corporation
***** Direct subsidiary of Stillwater Properties, Inc.
2070024
Schedule I
Underwriters
NUMBER OF FIRM
SHARES TO BE
NAME OF UNDERWRITER PURCHASED
--------------------------------------------------------- --------------
Xxxxxx, Xxxxxxxx & Company, Incorporated.................
Xxxxxx X. Xxxxx & Co. L.L.P..............................
Freidman, Billings, Xxxxxx & Co., Inc....................
Xxxxx Xxxxxxxx & Xxxxx, Inc..............................
SunTrust Capital Markets, Inc............................
--------------
Total 2,100,000
==============
Schedule II
List of Persons to Provide 90-Day Lock-Up Agreements
Directors:
Xxxxx X. Xxxxx XX
Xxxxxx X. Xxxxx
Xxx Xxxxx Xxxxxx
X. Xxxxx Xxxxxxxx
Xxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Officers (all officers that are Section 16 reporting persons):
Xxxxx X. Xxxxxxx
L. Xxxxx Xxxxx
Xxxxxx X. Xxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxxx
Xxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxx XxXxxxxxxx
J. Xxxxxxx Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx
Xxxxx X. York
Schedule II
List of Other Persons to Provide 90-Day Lock-Up Agreements
Xxxxx X. Xxxxx Revocable Trust
Xxx X. Xxxxx Trust
BKP, L.L.C.
Xxxxx Charitable Remainder Trust
Xxxxx X. Xxxxx
