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EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT FOR
TRUST PREFERRED SECURITIES]
ONB CAPITAL TRUST [ ]
% TRUST PREFERRED SECURITIES, SERIES
(liquidation amount $ per preferred security) guaranteed
on a junior subordinated basis by Old National Bancorp
UNDERWRITING AGREEMENT
[Date]
To the Underwriters set forth
on Schedule II hereto
Ladies and Gentlemen:
ONB Capital Trust , a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), and Old National Bancorp, a multi-bank
holding company organized under the laws of the State of Indiana, as depositor
of the Trust and as guarantor (the "Company" and, together with the Trust, the
"Issuers"), propose subject to the terms and conditions stated herein, that the
Trust issue and sell to the several underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the aggregate principal amount of % Trust Preferred
Securities, Series (liquidation amount $ per preferred security) set
forth in Schedule II hereto representing beneficial interests in the Trust (the
"Securities"), guaranteed on a junior subordinated basis by the Company as to
the payment of distributions, and as to payments on liquidation or redemption,
to the extent set forth in a guarantee agreement to be dated , 1999
(the "Guarantee") between the Company and Bank One Trust Company, NA, as trustee
(the "Guarantee Trustee"). The Trust is to purchase, with the proceeds of the
sale of the Securities to the Underwriters and the sale of its Common Securities
(liquidation amount $ per common security) (the "Common Securities") to the
Company, an aggregate of $ Corresponding Junior Subordinated Debentures (the
"Corresponding Junior Subordinated Debentures") of the Company, to be issued
pursuant to a securities resolution with respect to an indenture (the
"Indenture") dated as of , 1999 between the Company and Bank One
Trust Company, NA, as trustee (the "Corresponding Debt Trustee"). The payments
made by the Company on the Corresponding Junior Subordinated Debentures are
established at a level sufficient to permit the Trust, upon receipt of such
payments, to make payments on the Securities in accordance with their terms.
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Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
SECTION 1. Representations and Warranties. Each of the Issuers jointly
and severally represents and warrants to each Underwriter as of the date hereof
and as of the Closing Time referred to in Section 2(b) hereof, and agrees with
each Underwriter, as follows:
(a) The Issuers meet the requirements for use of Form S-3 under the Act
and have prepared and filed with the Commission a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, including a
related basic prospectus, for registration under the Act of the offering and
sale of the Securities. The Issuers may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Issuers will next file with the Commission one of the
following: (1) after the Effective Date of such registration statement, a final
prospectus supplement relating to the Securities in accordance with Rules 430A
and 424(b), (2) prior to the Effective Date of such registration statement, an
amendment to such registration statement (including the form of final prospectus
supplement) or (3) a final prospectus in accordance with Rules 415 and 424(b).
In the case of clause (1), the Issuers have included in such registration
statement, as amended at the Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be included in
such registration statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and at the Closing Time (as defined herein), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material
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fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on the
Effective Date and at the Closing Time the Trust Agreement (as defined below),
the Indenture and the Guarantee did or will comply in all material respects with
the applicable requirements of the Trust Indenture Act and the rules thereunder;
and, on the Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b) and at
the Closing Time, the Final Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Issuers make no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement thereto).
(c) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of the
State of Delaware with the power and authority to enter into and perform its
obligations under this Agreement, the Securities, the Common Securities and the
Trust Agreement (as defined below) and to own property and conduct its business
as described in the Final Prospectus, and has conducted and will conduct no
business other than the transactions contemplated by this Agreement and as
described in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Amended and Restated
Trust Agreement dated as of , (the "Trust Agreement") between
the Company and the trustees named therein (the "Trustees") and the agreements
and instruments contemplated by the Trust Agreement and the Prospectus.
(d) The Common Securities have been duly authorized by the Trust and
upon delivery by the Trust to the Company against payment therefor as described
in the Prospectus, will be duly and validly issued and fully paid and
non-assessable beneficial interests in the Trust and will conform to the
description thereof contained in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and at the
Closing Time, all of the issued and outstanding Common Securities of the Trust
will be directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(e) The Securities have been duly authorized by the Trust, and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued and, subject to the qualifications set forth herein, fully
paid and non-assessable beneficial interests in the Trust and will conform in
all material respects to the description thereof contained in the Final
Prospectus; the issuance of the Securities is not subject to preemptive or other
similar rights; and the holders of the Securities (the "Security holders") will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware (subject to the obligations of the
Security holders under the Trust Agreement to make certain payments to the
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Trust to defray expenses such as any applicable transfer and stamp taxes and to
provide security or indemnity in connection with the replacement of destroyed,
lost or stolen certificates or in connection with directing the Property Trustee
under the Trust Agreement to exercise its rights and powers at the request of
Security holders).
(f) The Guarantee, the Corresponding Junior Subordinated Debentures,
the Trust Agreement and the Indenture (collectively, the "Company Agreements")
have each been duly authorized by the Company and when validly executed and
delivered by the Company and, in the case of the Guarantee, by the Guarantee
Trustee, in the case of Trust Agreement, by the Trustees and, in the case of the
Indenture, by the Corresponding Debt Trustee, and, in the case of Corresponding
Junior Subordinated Debentures, when validly issued by the Company and validly
authenticated and delivered by the Corresponding Debt Trustee, will constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; the Trust Agreement, the
Indenture and the Guarantee have been duly qualified under the Trust Indenture
Act, as amended; the Corresponding Junior Subordinated Debentures are entitled
to the benefits of the Indenture; and the Company Agreements will conform to the
descriptions thereof in the Prospectus.
(g) This Agreement has been duly authorized, executed and delivered by
each of the Issuers.
(h) The Company is a multi-bank holding company duly organized and
validly existing in good standing under the laws of the State of Indiana with
full corporate power and authority to enter into and perform its obligations
under this Agreement, the Trust Agreement, the Indenture, the Guarantee and the
Corresponding Junior Subordinated Debentures, and to purchase, own and hold the
Common Securities issued by the Trust.
(i) The Company has authorized capitalization as set forth in the Final
Prospectus, and all of the issued shares of capital stock of the company have
been duly and validly authorized and issued and are fully paid and
non-assessable; all the outstanding beneficial interests in the Designated Trust
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the descriptions thereof contained in the Final
Prospectus;
(j) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X (each, a "Subsidiary" and, collectively,
the "Subsidiaries," and each of which is listed on Schedule III hereto) has been
duly incorporated and is validly existing as a corporation in standing under the
laws of the jurisdiction of its incorporation, has power and authority
(corporate and other) to own, lease and operate its properties and to conduct
its business as described in the Final Prospectus, and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings or business
affairs of the Company
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and its subsidiaries; and all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and all such shares owned by the Company, directly
or through subsidiaries, are owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or security interest;
(k) The consolidated historical financial statements, together with
related schedules and notes, included or incorporated by reference in the
Registration Statement and the Final Prospectus (and any amendment or supplement
thereto), comply as to form in all material respects with the requirements of
the Act and the Exchange Act. Such historical financial statements present
fairly the consolidated financial position of the Company and its subsidiaries
at the respective dates indicated and the results of their operations and their
cash flows for the respective periods indicated in accordance with generally
accepted accounting principles consistently applied throughout such periods.
(l) The Issuers have not distributed and, prior to the later to occur
of (i) the Closing Time and (ii) completion of the distribution of the
Securities, will not distribute any offering materials in connection with the
offering and sale of the Securities other than the Registration Statement, the
Preliminary Final Prospectus, the Final Prospectus or other materials, if any,
permitted by the Securities Act.
(m) None of the Company, the Trust or any Subsidiary is in violation of
its charter, by-laws or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company,
the Trust or any of the Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company, the
Trust or any Subsidiary is subject (collectively, "Agreements and Instruments")
except for such defaults that would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"); and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement (including
the issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by each of the Trust and the Company with its
obligations hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company, the Trust or any Subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter, by-laws or
other organizational documents of the Company, the Trust or any Subsidiary or
any applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company, the Trust or any Subsidiary or any of
their assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the
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holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company, the Trust
or any Subsidiary.
(n) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or its or their property is pending or, to the best
knowledge of the Company, threatened that could reasonably be expected to have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(o) Xxxxxx Xxxxxxxx LLP, the Company's former auditors, who have
certified certain financial statements of the Company and its consolidated
subsidiaries and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Prospectus, are
independent public accountants with respect to the Company within the meaning of
the Act and the applicable published rules and regulations thereunder.
PriceWaterhouseCoopers LLP, the Company's current auditors, are independent
public accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder.
(p) The Company, the Trust and the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company, the Trust nor any such
Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(q) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by each of the
Issuers of its obligations hereunder, in connection with the offering, issuance
or sale of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already obtained or
made or as may be required under the Act or the rules and regulations of the
Commission thereunder or state securities laws and except for the qualification
of the Trust Agreement, the Indenture and the Guarantee under the Trust
Indenture Act.
(r) The statements set forth in (i) the Basic Prospectus which forms a
part of the Final Prospectus under the captions "Description of Debt
Securities," "Description of Capital Securities," "Description of Guarantees,"
and "Relationship Among the Capital Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees," and (ii) in the prospectus
supplement which forms a part of the Final Prospectus under the captions
"Certain Terms of Preferred Securities" and "Certain Terms of the Junior
Subordinated Debentures" insofar as they constitute a summary of the terms of
the Securities, Subordinated Debentures, the Guarantees and the Company
Agreements, and (x) in the Prospectus under the caption "Plan of Distribution"
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and (y) in the Prospectus as amended or supplemented under the caption
"Underwriting," insofar as they purport to describe the provisions of the laws
and documents referred to therein, in each case are accurate, complete and fair;
(s) The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "Bank Holding Company Act"),
and the regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve"), and the deposit accounts of the Company's subsidiary banks
are insured by the Federal Deposit Insurance Corporation ("FDIC") to the fullest
extent permitted by law and the rules and regulations of the FDIC, and no
proceeding for the termination of such insurance are pending or threatened.
(t) Each of the Issuers is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment company" or
an entity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
Any certificate signed by an officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
SECTION 2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Time"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
SECTION 4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
SECTION 5. Agreements. Each of the Issuers jointly and severally
covenants with each Underwriter as follows:
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(a) It will use its best efforts to cause the Registration Statement,
if not effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities, it will
not file any amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless it has furnished you
a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), it will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing. It will
promptly advise the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (6) of the receipt by it of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. It will use its
best efforts to prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, it promptly will (1) notify the Representatives
of such event, (2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance and (3) supply
any supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, it will make generally available to its
security holders and to the Representatives an earnings statement or statements
of the Company and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) It will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to
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each other Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of each Preliminary Final Prospectus
and the Final Prospectus and any supplement thereto as the Representatives may
reasonably request. It will pay the expenses of printing or other production of
all documents relating to the offering.
(e) It will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the Representatives
may designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(f) It will not take, directly or indirectly, any action designed to or
which has constituted or which might reasonably be expected to cause or result,
under the Exchange Act or otherwise, in stabilization or manipulation of the
price of any of its securities to facilitate the sale or resale of the
Securities.
(g) During the period of three years hereafter (i) the Company will
furnish to you, upon your request, from time to time, such information
concerning the Company as you may reasonably request, and (ii) the Trust will
furnish to you, upon your request, a copy of each report of the Trust mailed to
holders of Preferred securities or Common Securities.
(h) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Issuers to comply with the terms or fulfill any of the conditions of
this Agreement, the Company agrees to reimburse the Representatives for all
reasonable out-of-pocket expenses (including reasonable fees and expenses of
counsel for the Underwriters) incurred by you in connection therewith.
(i) It will cause the net proceeds received by the Trust from the sale
of the Securities to be used in the manner specified in the Final Prospectus (or
any supplement thereto) under "Use of Proceeds".
(j) It will use its best efforts to cause the listing of the Securities
on any such stock exchange or exchanges as are set forth in Schedule I hereto.
(k) It will not, without the prior written consent of Xxxxxxx Xxxxx
Barney Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Issuers or any
affiliate of the Issuers or any person in privity with the Issuers or any
affiliate of the Issuers) directly or indirectly, including the filing (or
participation in the filing) of a
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registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any securities of
its with the characteristics and terms similar to the Securities or publicly
announce an intention to effect any such transaction until the Business Day set
forth on Schedule I hereto.
(l) During the period when the Final Prospectus is required to be
delivered under the Act or the Exchange Act, the Company will file or cause to
be filed all documents required to be filed with the Commission pursuant to the
Exchange Act within the time periods required by the Exchange Act.
SECTION 6. Payment of Expenses. The Issuers will pay or cause to be
paid the expenses set forth in Schedule I hereto
SECTION 7. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time and the Closing Time, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM New York
City time, on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) At Closing Time, the Representatives shall have received the
favorable opinion, dated as of Closing Time, of (i) Xxxxx XxXxxxx Xxxxxxxxx &
Xxxxxxxx LLP, counsel for the Issuers, to the effect set forth in Exhibit A in
form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
and addressed to the Underwriters and to such further effect as counsel to the
Underwriters may reasonably request. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of Indiana and the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also 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, the Trust and the
Company's Subsidiaries, certificates of representatives of the applicable
trustees and certificates of public officials.
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(c) At Closing Time, the Representatives shall have received the
favorable opinion, dated as of Closing Time, of Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, the counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters and addressed to the
Underwriters with respect to such matters as the Representatives may reasonably
request. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York and the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also 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, the Trust and the Company's
Subsidiaries, certificates of representatives of the applicable Trustees and
certificates of public officials.
(d) At Closing Time, the Representatives shall have received the
favorable opinion, dated as of Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A.,
special Delaware counsel for the Issuers, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters and addressed to the Underwriters to
the effect set forth in Exhibit B hereto and to such further effect as counsel
to the Underwriters may reasonably request. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
federal law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Trust, the Company and the Company's Subsidiaries, certificates of
representatives of the applicable trustees and certificates of public officials.
(e) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Final
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the Chief Financial Officer or Corporate Controller of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) each of the Trust and the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are, to the knowledge of such
officers, contemplated by the Commission.
(f) The Trust shall have performed all of its obligations under this
Agreement which are to be performed by the terms hereof at or before the Closing
Time.
(g) At the time of the execution of this Agreement, the Representatives
shall have received from the Company's former independent public accountants,
Xxxxxx Xxxxxxxx, LLP, a letter dated such date, in form and substance
satisfactory to the Representatives (substantially in
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the form of Annex A hereto), together with signed or reproduced copies of such
letter for each of the other Underwriters and addressed to the Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(h) At Closing Time, the Representatives shall have received from
Xxxxxx Xxxxxxxx LLP, the Company's former independent public accountants a
letter, dated as of Closing Time, together with signed or reproduced copies of
such letter for each of the other Underwriters and addressed to the
Underwriters, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(i) At the time of the execution of this Agreement, the Representatives
shall have received from the Company's independent public accountants,
PriceWaterhouseCoopers LLP, a letter dated such date, in form and substance
satisfactory to the Representatives (substantially in the form of Annex B
hereto), together with signed or reproduced copies of such letter for each of
the other Underwriters and addressed to the Underwriters containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to certain financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(j) At Closing Time, the Representatives shall have received from
PriceWaterhouseCoopers LLP, the Company's independent public accountants a
letter, dated as of Closing Time, together with signed or reproduced copies of
such letter for each of the other Underwriters and addressed to the
Underwriters, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (i) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(k) At Closing Time, the Securities shall be rated by
as set forth in Schedule I hereto. Since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Securities or any of the Company's debt securities by any
"nationally recognized statistical rating agency," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act, and no such
organization shall have publicly announced that is has under surveillance or
review its rating of the Securities or any of the Company's other debt
securities.
(l) At Closing Time, the Securities shall have been approved for
listing on such exchange or exchanges as are listed on Schedule I hereto,
subject only to official notice of issuance.
(m) At Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Issuers in connection with the issuance and
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sale of the Securities as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(n) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Issuers at any time at or prior to
Closing Time and such termination shall be without liability of any party to any
other party except as provided in Section 6 and except that Sections 1, 8, 9 and
10 shall survive any such termination and remain in full force and effect.
SECTION 8. Indemnification. (a) Each of the Issuers agrees jointly and
severally to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuers will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Issuers by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Issuers
may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Issuers, each of their directors, each of their officers who
signs the Registration Statement, and each person who controls either of the
Issuers within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Issuers to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting" in the Final Prospectus, (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Final Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on
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behalf of the several Underwriters for inclusion in any Preliminary Final
Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Issuers and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Issuers and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Issuers on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable
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to the Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Issuers and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Issuers on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Issuers shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by them, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Issuers on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Issuers
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
either of the Issuers within the meaning of either the Act or the Exchange Act,
each officer of the Issuers who shall have signed the Registration Statement and
each director of the Issuers shall have the same rights to contribution as the
Issuers, subject in each case to the applicable terms and conditions of this
paragraph (d).
SECTION 9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Time shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing
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contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Trust, Company or any
Subsidiaries of the Company submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Issuers, and shall survive delivery of the Securities to the Underwriters.
SECTION 11. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by notice to the
Issuers, at any time at or prior to Closing Time (i) if there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise or the Trust, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis
the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the Nasdaq
National Market System, or if trading generally on the American Stock Exchange
or the Nasdaq National Market System or in the New York Stock Exchange has been
suspended or materially limited (other than to provide for an orderly market),
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 8, 9 and 10
shall survive such termination and remain in full force and effect.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at the address set forth
on Schedule II; notices to the Issuers shall be directed to them at 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, attention of the Corporate Secretary.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Issuers and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Issuers and their respective successors and the
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17
controlling persons and officers and directors referred to in Sections 8 and 9
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Issuers and
their respective successors, and said controlling persons and officers,
directors, trustees and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Governing Law and Time. This agreement shall be governed by
and construed in accordance with the laws of the State of New York. Except as
otherwise set forth herein, specified times of day refer to New York City time.
SECTION 15. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
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"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time,
in the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Time, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in Section
1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Issuers and the Underwriters.
Very truly yours,
OLD NATIONAL BANCORP
By:
----------------------------------
Name:
Title:
ONB CAPITAL TRUST
By:
----------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first written above.
[NAME(S) OF REPRESENTATIVE(S)]
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By:
-------------------------------
Name:
Title:
For themselves and the other Under-
writers, if any, named in
Schedule I to the foregoing
Agreement
19
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SCHEDULE I
ONB CAPITAL TRUST
Underwriting Agreement dated:
Registration Statement No.:
Representative(s)
Title, Purchase Price and Description of Securities:
Title: % Capital Securities, Series .
Liquidation Amount at Maturity: $ (liquidation amount $ per preferred security).
Distributions: % per annum, from , , payable
[quarterly][semi-annually] on , ,
and , commencing , , , to holders of record on
the preceding , , or
, as the case may be.
Maturity:
Optional Redemption:
Sinking Fund:
Listing:
Rating:
Expenses:
Purchase Price: % of liquidation amount, plus accrued distributions[, if any,]
from , .
Expected Reoffering Price: % of liquidation amount, subject to change by the
[Representative[s] [Underwriters].
Closing: A.M. on , , at the offices of
, in [___________] [Clearing House (next day)] [Federal (same day)]
funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry Only via the Depository
Trust Company ("DTC")]. The Securities [will] [will not] trade in
DTC's Same Day Funds Settlement System.]
21
Settlement System.]
Type of Offering:
Date referred to in Section 5(f) after
which the Company may offer or
sell debt securities issued or
guaranteed by the Company
without the consent of the
Representative(s):
Modification of items to be covered
by the letter from [NAME OF
ACCOUNTANTS] delivered pursuant to
Section 6(e) at the Execution Time:
Notices: Notices to be given to the Underwriters should be
directed to the Representatives as follows:
The respective numbers of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule II hereto
22
SCHEDULE II
ONB CAPITAL TRUST
Underwriters Principal Amount of
------------ Trust Preferred Securities
to be Purchased
--------------------------
Xxxxxxx Xxxxx Barney Inc..................... $
-------------------------
Total..................... $
=========================
23
SCHEDULE III
OLD NATIONAL BANCORP
List of Significant Subsidiaries
Old National Bank, Evansville, Indiana
24
EXHIBIT A
FORM OF OPINION OF ISSUERS' COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(b)
Capitalized terms used herein shall have the same definitions
as set forth in the underwriting agreement (the "Agreement") to which this
Exhibit A is attached.
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Indiana. The
Company has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Agreement.
(ii) Each Subsidiary set forth on Schedule III to the Agreement has
been duly incorporated and is validly existing as a corporation under the laws
of the jurisdiction of its incorporation, and has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each Subsidiary
has been duly authorized and validly issued, is fully paid and non-assessable
and, to the best of our knowledge, is owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; to the best of our knowledge, none of the
outstanding shares of capital stock of any Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such Subsidiary.
(iii) The Agreement has been duly authorized, executed and delivered
by the Company.
(iv) The Guarantee, the Corresponding Junior Subordinated
Debentures, the Trust Agreement and the Indenture have each been duly authorized
by the Company and when validly executed and delivered by the Company and, in
the case of the Guarantee, by the Guarantee Trustee, in the case of Trust
Agreement, by the Trustees and, in the case of the Indenture, by the
Corresponding Debt Trustee, and, in the case of Corresponding Junior
Subordinated Debentures, when validly issued by the Company and validly
authenticated and delivered by the Corresponding Debt Trustee, will constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law);
the Trust Agreement, the Indenture and the Guarantee have been duly qualified
under the Trust Indenture Act, as amended; the Corresponding Junior Subordinated
Debentures are entitled to the benefits of the Indenture; and the Company
Agreements conform in all material respects to the descriptions thereof in the
Prospectus.
(vi) The Registration Statement has been declared effective under
the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and
B-1
25
within the time period required by Rule 424(b); and, to the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
(vii) The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom and the Statements of Eligibility on Form T-1 of the
applicable trustees, as to which we express no opinion) appear on their face to
comply as to form in all material respects with the requirements of the Act and
the Trust Indenture Act.
(viii) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we express no opinion), when they became
effective or were filed with the Commission, as the case may be, appear on their
face to comply as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(ix) Neither the Company nor any Subsidiary is in violation of its
charter or by-laws and no default by the Company or any Subsidiary exists in the
due performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement.
(x) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or its or their property is pending or, to the best
knowledge of the Company, threatened that could reasonably be expected to have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Prospectus.
(xi) The Company, the Trust and the Subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and neither the Company, the Trust nor any
such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus.
(xii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the Act and the Trust
Indenture Act, which have been obtained or made, or as may be required under the
securities or blue sky laws of the various states, as to which we
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express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Agreement or for the offering,
issuance, sale or delivery of the Securities.
(xiii) The execution, delivery and performance of the Agreement and
the Company Agreements and the consummation of the transactions contemplated in
the Agreement and in the Registration Statement (including the issuance and sale
of the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by each of the Company and the Trust with its obligations under the Agreement
and the Company Agreements do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a breach
of, or default or similar event under or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any Subsidiary pursuant to any written contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Company or any Subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any Subsidiary is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any Subsidiary, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to us, of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their respective
properties, assets or operations.
(xiv) Neither the Company nor the Trust is an "investment company"
or an entity "controlled" by an "investment company," as such terms are defined
in the 1940 Act.
(xv) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "Bank Holding Company
Act"), and the regulations of the Board of Governors of the Federal Reserve
System (the "Federal Reserve"), and the deposit accounts of the Company's
subsidiary banks are insured by the Federal Deposit Insurance Corporation
("FDIC") to the fullest extent permitted by law and the rules and regulations of
the FDIC, and no proceeding for the termination of such insurance are pending or
threatened.
(xvi) The statements set forth in (i) the Prospectus under the
captions "Description of Debt Securities," "Description of Capital Securities,"
"Description of Guarantees," and "Relationship Among the Capital Securities, the
Corresponding Junior Subordinated Debentures and the Guarantees," and (ii) in
the Prospectus as amended or supplemented under the captions "Certain Terms of
Capital Securities" and "Certain Terms of the Junior Subordinated Debentures"
insofar as they constitute a summary of the terms of the Securities,
Subordinated Debentures, the Guarantees and the Company Agreements, and (x) in
the Prospectus under the caption "Underwriting" and (y) in the Prospectus as
amended or supplemented under the caption "Underwriting," insofar as they
purport to describe the provisions of the laws and documents referred to
therein, in each case are accurate, complete and fair.
(xvii) The statements made in the Prospectus under the caption "United
States Federal Income Taxation" to the extent they matters of law or legal
conclusions, have been reviewed by such
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counsel and are accurate and correct in all material respects and fairly present
the information set forth therein.
(xviii) The Junior Subordinated Debentures will be treated for United
States federal income tax purposes as indebtedness of the Company.
(xix) The Trust will be treated for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation.
We have participated in conferences with officers and other
representatives of the Issuers, representatives of the Underwriters and
representatives of the independent public accountants for the Issuers at which
conferences the contents of the Prospectus and the Registration Statement and
related matters were discussed and, although we have not independently verified,
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as otherwise indicated above), we advise you
that, on the basis of the foregoing (relying as to materiality to the extent we
deem appropriate upon the opinions of officers and other representatives of the
Issuers), no facts have come to our attention that lead us to believe that the
Registration Statement or any amendment thereto, at the time such Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that we express no comment with respect to the Forms T-1 or the financial
statements, including the notes thereto, or any other financial or statistical
data found in or derived from the internal accounting and other records of the
Company and its Subsidiaries set forth or referred to in the Registration
Statement or the Prospectus).
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EXHIBIT B
FORM OF OPINION OF DELAWARE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
Capitalized terms used herein shall have the same definitions
as set forth in the underwriting agreement (the "Agreement") to which this
Exhibit B is attached.
(i) The Trust is a duly formed and validly existing statutory
business trust in good standing under the Business Trust Act of the State of
Delaware with the business trust power and authority to enter into and perform
its obligations under this Agreement, the Securities, the Common Securities and
the Trust Agreement and to own property and conduct its business as described in
the Prospectus.
(ii) Under the Delaware Business Trust Act and the Trust Agreement,
the execution and delivery by the Trust of this Agreement, and the performance
by the Trust of its obligations hereunder, have been duly authorized by all
necessary business trust action on the part of the Trust.
(iii) The Trust Agreement constitutes a valid and binding obligation
of the Company and the Trustees, enforceable against the Company and the
Trustees, in accordance with its terms, subject, as to enforcement, to the
effect upon the Trust Agreement of (a) bankruptcy, insolvency, moratorium,
receivership, liquidation, fraudulent conveyance, reorganization and other
similar laws relating to or affecting the remedies and rights of creditors, (b)
general principles of equity (regardless of whether considered or applied in a
proceeding in equity or at law), (c) considerations of public policy or the
effect of applicable law relating to fiduciary duties, and (iv) principles of
course of dealing or course of performance and standards of good faith, fair
dealing, materiality or reasonableness that may be applied by a court to the
exercise of rights or remedies.
(iv) The Common Securities have been duly authorized for issuance by
the Trust and upon issuance and delivery by the Trust to the Company against
payment therefor as described in the Trust Agreement, will be duly and validly
issued and, subject to the qualifications set forth herein, fully paid and
non-assessable beneficial interests in the Trust; the issuance of the Common
Securities is not subject to preemptive or other similar rights under the Trust
Agreement or the Business Trust Act provide that such counsel may note that the
holders of Common Securities may be required to make payment or provide
indemnity or security as set forth in the Trust Agreement.
(v) The Securities have been duly authorized for issuance by the
Trust, and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and, subject to the qualifications set
forth herein, fully paid and non-assessable beneficial interests in the Trust;
the issuance of the Securities is not subject to preemptive or other similar
rights under the Trust Agreement or the Business Trust Act; and the Security
holders will be
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entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware; provided that such counsel need express no opinion as
to any holder of a Security that is, was or becomes a named Trustee of the
Trust. Such counsel may note that the holders of the Securities may be required
to make payment or provide indemnity or security as set forth in the Trust
Agreement.
(vi) The issuance and sale by the Trust of the Securities and the
Common Securities, the execution, delivery and performance by the Trust of the
Agreement, the consummation by the Trust of the transactions contemplated
therein and the compliance by the Trust with its obligations thereunder do not
violate (a) any of the provisions of the Certificate of Trust of the Trust or
the Trust Agreement or (b) any applicable Delaware law or Delaware
administrative regulation.
(vii) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets, activities (other
than having a Delaware trustee as required by the Delaware Business Trust Act
and the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, no authorization, approval,
consent or order of any Delaware court or Delaware governmental authority or
Delaware agency is required to be obtained by the Trust solely as a result of
the issuance and sale of the Securities, the consummation by the Trust of the
transactions contemplated herein or the compliance by the Trust of its
obligations hereunder, except such as have been obtained and such as may be
required by the securities laws of the State of Delaware (as to which such
counsel need express no opinion);
(viii) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets, activities (other
than having a Delaware trustee as required by the Delaware Business Trust Act
and the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, and assuming that the Trust is
treated as a grantor trust for federal income tax purposes and that the holders
of the Securities are viewed for federal income tax purposes as owners of either
all of, or their liquidation and accrued but unpaid share of, the Corresponding
Subordinated Debt Securities held by the Trust, the Security holders (other than
those holders of the Securities, or persons who are partners or S corporation
shareholders for federal income tax purposes in such holders of Securities, who
reside or are domiciled in the State of Delaware or who are otherwise subject to
income taxation in the State of Delaware) will have no liability for income
taxes imposed by the State of Delaware solely as a result of their participation
in the Trust, and the Trust will not be liable for any income tax imposed by the
State of Delaware (in rendering the opinion expressed in this paragraph (viii),
such counsel need express no opinion concerning the securities laws of the State
of Delaware).
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ANNEX A/ANNEX B
FORM OF ACCOUNTANTS' COMFORT LETTER
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations
(i) in our opinion, the audited financial statements and the
related financial statement schedules included or incorporated by reference in
the Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a reading
of the unaudited interim consolidated financial statements of the Company for
the three month periods ended and , the three and six
month periods ended and and the three and nine month
periods ended and , included or incorporated by
reference in the Registration Statement and the Prospectus (collectively, the
"10-Q Financials") , a reading of the unaudited interim consolidated financial
statements of the Company for the -month periods ended and
, included in the Registration Statement and the Prospectus (the
" -month financials") , a reading of the latest available unaudited interim
consolidated financial statements of the Company, a reading of the minutes of
all meetings of the stockholders and directors of the Company and its
subsidiaries and the and Committees of the Company's
Board of Directors and any subsidiary committees since day after end of last
audited period, inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, a review of
interim financial information in accordance with standards established by the
American Institute of Certified Public Accountants in Statement on Auditing
Standards No. 71, Interim Financial Information ("SAS 71"), with respect to the
description of relevant periods and such other inquiries and procedures as may
be specified in such letter, nothing came to our attention that caused us to
believe that:
(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations applicable to unaudited financial statements
included in Form 10-Q or any material modifications should be made to the 10-Q
Financials incorporated by reference in the Registration Statement and the
Prospectus for them to be in conformity with generally accepted accounting
principles;
(B) the -month financials included in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable
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accounting requirements of the 1933 Act and the 1933 Act Regulations applicable
to unaudited interim financial statements included in registration statements or
any material modifications should be made to the -month financials included
in the Registration Statement and the Prospectus for them to be in conformity
with generally accepted accounting principles;
(C) at and at a specified date not more
than five days prior to the date of this Agreement, there was any change in the
Shareholders' Equity of the Company and its subsidiaries or any decrease in the
Total Current Assets of the Company and its subsidiaries or any increase in the
Long -term Debt of the Company and its subsidiaries, in each case as compared
with amounts shown in the latest balance sheet included in the Registration
Statement, except in each case for changes, decreases or increases that the
Registration Statement discloses have occurred or may occur; or
(D) for the period from to and for
the period from to a specified date not more than five days prior
to the date of this Agreement, there was any decrease in Net Sales, Earnings
Before Extraordinary Loss or Net Earnings, in each case as compared with the
comparable period in the preceding year, except in each case for any decreases
that the Registration Statement discloses have occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above
and a reading of the Selected Financial Data included in the Registration
Statement and a reading of the financial statements from which such data were
derived, nothing came to our attention that caused us to believe that the
Selected Financial Data included in the Registration Statement do not comply as
to form in all material respects with the disclosure requirements of Item 301 of
Regulation S-K, that the amounts included in the Selected Financial Data are not
in agreement with the corresponding amounts in the audited consolidated
financial statements for the respective periods or that the financial statements
not included in the Registration Statement from which certain of such data were
derived are not in conformity with generally accepted accounting principles;
(iv) we have compared the information in the Registration
Statement under selected captions with the disclosure requirements of Regulation
S-K and, on the basis of limited procedures specified herein, nothing came to
our attention that caused us to believe that this information does not comply as
to form in all material respects with the disclosure requirements of Items 302,
402 and 503(d), respectively, of Regulation S-K;
(v) based upon the procedures set forth in clause (ii) above,
a reading of the unaudited financial statements of the Company for the most
recent period that have not been included in the Registration Statement and a
review of such financial statements in accordance with SAS No. 71, nothing came
to our attention that caused us to believe that the unaudited
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amounts for Net Sales, Net Earnings or Shareholders' Equity for the most recent
period do not agree with the amounts set forth in the unaudited consolidated
financial statements for those periods or that such unaudited amounts were not
determined on a basis substantially consistent with that of the corresponding
amounts in the audited consolidated financial statements;
(vi) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement, which are specified herein,
and have compared certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the Company.
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