EXHIBIT 1.1
DRAFT
BANK OF THE OZARKS, INC.
and
OZARK CAPITAL TRUST
1,500,000 Shares*
Preferred Securities
UNDERWRITING AGREEMENT
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____________, 1999
XXXXXXXX INC.
XXXXXX XXXXXX & COMPANY, INC.
As Representatives of the Several Underwriters
c/o Stephens Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Gentlemen:
Ozark Capital Trust (the "Trust"), a business trust under the Delaware
Business Trust Act (the "Delaware Act"), and Bank of the Ozarks, Inc., an
Arkansas corporation (the "Company" and together with the Trust, the "Offerors")
confirm their agreement with the several underwriters (the "Underwriters") for
whom you are acting as representatives (the "Representatives") to issue and sell
an aggregate of 1,500,000 shares of the Trust's preferred securities (the
"Underwritten Preferred Securities") to the Underwriters. The preferred
securities are more fully described in the Registration Statement and the
Prospectus hereinafter mentioned.
For the sole purpose of covering over-allotments in connection with the
sale of the Underwritten Preferred Securities, the Trust proposes to grant to
the Underwriters the option (the "Option") described in Section 2 hereof to
purchase all or any part of 225,000 shares of preferred securities (the "Option
Preferred Securities") owned by it. The Underwritten Preferred Securities and
the Option Preferred Securities purchased pursuant to this Underwriting
Agreement are herein called the "Preferred Securities" and the proposed offering
of the Preferred Securities by the Underwriters is hereinafter referred to as
the "Public Offering."
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* Plus up to 225,000 additional shares to cover over-allotments; if any.
The Preferred Securities will be guaranteed by the Company with respect to
distributions and amounts payable upon liquidation or redemption pursuant to the
terms and conditions set forth in the Preferred Securities Guarantee Agreement
(the "Guarantee") to be dated as of Closing Time (as defined below) executed and
delivered by the Company and FMB Trust Company, National Association (the
"Guarantee Trustee"). The Company and the Trust each understand that the
Underwriters propose to make a public offering of the Preferred Securities as
soon as they deem advisable after this Underwriting Agreement has been executed
and delivered, and the Trust Agreement (as defined in this Underwriting
Agreement), the Indenture (as defined in this Underwriting Agreement), and the
Guarantee have been qualified under the Trust Indenture Act. The entire proceeds
from the sale of the Preferred Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities (the
"Common Securities") and will be used by the Trust to purchase the __%
Subordinated Debentures (the "Debentures") issued by the Company. The Preferred
Securities and the Common Securities will be issued pursuant to the Trust
Agreement, to be dated as of Closing Time (the "Trust Agreement"), among the
Company, as Sponsor, FMB Trust Company, as property trustee (the "Property
Trustee"), First Omni Bank, National Association, as Delaware trustee (the
"Delaware Trustee"), and the identified administrative trustees (the
"Administrative Trustees" and together with the Property Trustee and the
Delaware Trustee, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Debentures will
be issued pursuant to a subordinated indenture, to be dated as of Closing Time
(the "Indenture"), between the Company and FMB Trust Company, as debenture
trustee (the "Debenture Trustee").
The Preferred Securities, the Guarantee and the Debentures are collectively
referred to in this Underwriting Agreement as the "Securities." The Indenture,
the Trust Agreement and this Underwriting Agreement are collectively referred to
in this Underwriting Agreement as the "Operative Documents."
The Offerors have filed with the Securities and Exchange Commission (the
"Commission"), pursuant to the Securities Act of 1933, as amended (the "Act"),
published rules and regulations adopted by the Commission under the Act (the
"Rules") and the Trust Indenture Act of 1939, as amended and the rules and
regulations thereunder, (the "Trust Indenture Act") a registration statement on
Form S-1 ("Form S-1") (File No. 333-_______), including a preliminary
prospectus, relating to the Preferred Securities, and such amendments to such
registration statement as may have been filed with the Commission to the date of
this Underwriting Agreement. The term "preliminary prospectus" means any
preliminary prospectus (as referred to in Rule 430 or Rule 430A of the Rules)
included at any time as a part of the registration statement. The Offerors have
furnished to the Representatives copies of such registration statement, each
amendment to it filed with the Commission and each preliminary prospectus filed
by the Offerors with the Commission and any other offering materials used by the
Offerors. If such registration statement has not become effective, a further
amendment (the "Final Amendment") to such registration statement, including a
form of final prospectus, if necessary to permit such registration statement to
become effective, will promptly be filed by the Offerors with the Commission.
If such registration statement has become effective, a final prospectus (the
"Rule 430A Prospectus") containing information permitted to be omitted at the
time of effectiveness by Rule 430A of the Rules will promptly be filed by the
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Offerors with the Commission in accordance with the Rules. The registration
statement as amended at the time it becomes or became effective (the "Effective
Date"), including financial statements and all exhibits and any information
deemed to be included by Rule 430A, is called the "Registration Statement." The
term "Prospectus" means the prospectus as first filed with the Commission
pursuant to Rule 424(b) of the Rules, or if no such filing is required, the form
of final prospectus included in the Registration Statement at the Effective
Date.
Any reference herein to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein on or before the Effective Date or
the date of such preliminary prospectus or the Prospectus, as the case may be.
As Representatives, you have advised the Offerors (a) that you are
authorized to enter into this Underwriting Agreement on behalf of the several
Underwriters and (b) the Underwriters are willing, acting severally and not
jointly, to purchase the amounts of the Underwritten Preferred Securities set
forth opposite their respective names in Schedule I hereto, plus their pro rata
portion of the Option Preferred Securities if you elect to exercise the over-
allotment Option in whole or in part for the accounts of the several
Underwriters.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the Offerors
and the Underwriters hereby agree as follows:
1. Representations, Warranties and Agreements of the Offerors.
(a) The Offerors jointly and severally represent and warrant to, and agree
with, each Underwriter as follows:
(i) The Company has been duly organized, is in compliance with its
Amended and Restated Articles of Incorporation, and is validly existing as a
corporation in good standing under the laws of the State of Arkansas, with full
power and authority (corporate and other) to own its properties and conduct its
business as described in the Registration Statement and Prospectus; all
significant subsidiaries (as defined by the Act) of the Company (each, a
"Subsidiary" and collectively, the "Subsidiaries") have been duly incorporated,
will be, and are validly existing as a banking association or corporation, as
the case may be, in good standing under the laws of the jurisdiction of its
association or incorporation, as the case may be, with full power and authority
(corporate and other) to own or lease its properties and conduct its business;
the Company and the Subsidiaries are duly qualified to transact business in all
jurisdictions in which the conduct of their business or the ownership or lease
of their properties requires such qualifications; all of the outstanding shares
of capital stock of each Subsidiary are owned by the Company and have been duly
and validly authorized and issued, are fully paid and non-assessable.
(ii) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Business Trust Act
with the power and authority (trust and other) to own its property and conduct
its business as described in the Registration Statement and Prospectus, to issue
and sell the Common Securities to the Company pursuant to the Trust
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Agreement, to issue and sell the Preferred Securities, to enter into and perform
its obligations under this Underwriting Agreement and to consummate the
transactions herein contemplated; the Trust has no subsidiaries and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so qualified or to be
in good standing would not have a material adverse effect on the Trust; the
Trust has conducted and will conduct no business other than the transactions
contemplated by this Underwriting Agreement and described in the Prospectus; the
Trust is not a party to or bound by any agreement or instrument other than this
Underwriting Agreement, the Trust Agreement and the agreements and instruments
contemplated by the Trust Agreement and described in the Prospectus; the Trust
has no liabilities or obligations other than those arising out of the
transactions contemplated by this Underwriting Agreement and the Trust Agreement
and described in the Prospectus; the Trust is not a party to or subject to any
action, suit or proceeding of any nature; the Trust is not, and at the Closing
Date or any Option Closing Date will not be, to the knowledge of the Offerors,
classified as an association taxable as a corporation for United States federal
income tax purposes; and the Trust is, and as of the Closing Date or any Option
Closing Date will be, treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(iii) The capital stock of the Company and the equity securities
of the Trust conform to the description thereof contained in the Prospectus or
the financial information included therein (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). The outstanding shares of
capital stock and equity securities of each Offeror 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 an Offeror; no person has any preemptive or similar right to purchase any
shares of capital stock or equity securities of the Offerors. 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 from the Offerors any securities of the Offerors other than
options and warrants issued by the Company pursuant to its employee benefit
plans, 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 or equity securities of the Trust pursuant to the
Company's corporate charter or bylaws, the Trust Agreement or any agreement or
other instrument to which an Offeror is a party or by which an Offeror is bound,
provided however that the holders of the Preferred Securities will have limited
voting rights as described in the Prospectus. As of the Closing Date (as
defined below) and any Option Closing Date (as defined below), if applicable,
and upon application of the estimated net proceeds of the offering the Offerors
will have the authorized capitalization set forth under the caption,
"Capitalization" in the Prospectus. No further corporate approval or authority
on behalf of the Offerors will be required for the issuance and sale of the
Preferred Securities to be sold by the Trust as contemplated herein.
(iv) (A) The Trust has all requisite power and authority to issue,
sell and deliver the Preferred Securities in accordance with and upon the terms
and conditions set forth in this Underwriting Agreement and the Trust Agreement.
All corporate and trust action required to be taken by the Offerors for the
authorization, issuance, sale and delivery of the Preferred Securities in
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accordance with such terms and conditions has been validly and sufficiently
taken. The Preferred Securities, when delivered in accordance with this
Underwriting Agreement, will be duly and validly issued and outstanding, will be
fully paid and nonassessable undivided beneficial interests in the assets of the
Trust, will be entitled to the benefits of the Trust Agreement, will not be
issued in violation of or subject to any preemptive or similar rights, and will
conform in all material respects 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 the Trust Agreement. None of the
Preferred Securities, 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.
(B) The Debentures have been duly and validly authorized, and,
when duly and validly executed, authenticated and issued as provided in the
Indenture and delivered to the Trust pursuant to the Trust Agreement, will
constitute valid and legally binding obligations of the Company entitled to the
benefits of the Indenture and will conform in all material respects to the
description thereof contained in the Prospectus.
(C) The Guarantee has been duly and validly authorized, and,
when duly and validly executed and delivered to the Guarantee Trustee for the
benefit of the Trust, will constitute a valid and legally binding obligation of
the Company and will conform in all material respects to the description thereof
contained in the Prospectus.
(D) The Agreement as to Expenses and Liabilities (the "Expense
Agreement") has been duly and validly authorized, and, when duly and validly
executed and delivered by the Company, will constitute a valid and legally
binding obligation of the Company and will conform in all material respects to
the description thereof contained in the Prospectus.
(v) Any preliminary prospectus, the Prospectus and the Registration
Statement have been carefully prepared by the Offerors in conformity with the
requirements of the Act and the Rules, including Form S-1 and the Trust
Indenture Act. The Registration Statement has been filed with the Commission
under the Act.
(vi) Neither the Commission nor any other agency, body, authority,
court or arbitrator of competent jurisdiction has, by order or otherwise,
prohibited or suspended the use of any preliminary prospectus or the Prospectus
relating to the proposed offering of the Preferred Securities or instituted
proceedings for that purpose. The Registration Statement, the Prospectus and
any preliminary prospectus and any amendments or supplements thereto at the time
they became or become effective or were filed or are filed with the Commission
contained or will contain all statements which are required to be stated therein
by, and in all material respects conformed or will conform to the requirements
of, the Act, the Rules and the Trust Indenture Act. Neither the Registration
Statement, nor any preliminary prospectus nor any amendment thereto, and neither
the Prospectus nor any supplement thereto, as of its date contained any untrue
statement of a 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 in which they were made, not misleading; provided,
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however, that the Offerors make no representations or warranties as to
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information contained in or omitted from the Registration Statement or any
preliminary prospectus or the Prospectus, or any such amendment or supplement,
in reliance upon, and in conformity with, written information furnished to the
Offerors by or on behalf of any Underwriter through the Representatives,
expressly for use in the preparation thereof.
(vii) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules as set forth in the
Registration Statement, present fairly the consolidated financial position and
the consolidated results of operations of the Company and the Subsidiaries
consolidated, at the indicated dates and for the indicated periods. Such
financial statements have been prepared in accordance with generally accepted
principles of accounting, consistently applied throughout the periods involved,
and all adjustments necessary for a fair presentation of results for such
periods have been made. The Summary Consolidated Financial Data and the
Selected Consolidated Financial Data included in the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent with
that of the audited and unaudited financial statements from which they were
derived.
(viii) There is no action or proceeding pending or, to the knowledge of
the Offerors, threatened against the Offerors or any Subsidiary before any court
or administrative or governmental agency or other body which might (A) result in
any material adverse change in the condition (financial or otherwise), or in the
earnings, business, affairs, properties, business prospects or results of
operations of the Offerors and the Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, or (B) affect the performance of
this Underwriting Agreement or the consummation of the transactions herein
contemplated, except as disclosed in the Registration Statement and for which
the Company maintains a reserve in an amount which is adequate to cover
potential liabilities.
(ix) The Company and each Subsidiary has good and marketable title to
all of the material properties and assets reflected in the financial statements
hereinabove described or as described in the Prospectus as being owned by them,
subject to no lien, mortgage, pledge, charge or encumbrance of any kind except
those securing indebtedness described in such financial statements or as
described in the Prospectus or which do not materially affect the present or
proposed use of such properties or assets. The Company and the Subsidiaries
occupy their leased properties under valid, subsisting and binding leases with
only such exceptions as in the aggregate are not material and do not interfere
with the conduct of the business of the Company.
(x) Except as otherwise set forth in the Prospectus, the Company and
each Subsidiary have filed all Federal, State and foreign tax returns which have
been required to be filed and have paid all taxes indicated by said returns and
all assessments received by them or any of them to the extent that such taxes
have become due.
(xi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, as they may be amended or
supplemented, (A) there has not been any material adverse change in the
condition (financial or otherwise), or in the earnings, business, affairs,
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properties, business prospects or results of operations of either of the
Offerors and/or the Subsidiaries taken as a whole nor do the Offerors have
knowledge of any such change that is threatened, (B) there has not been any
transaction entered into by either of the Offerors or the Subsidiaries that is
material to the earnings, business, affairs, properties, business prospects or
operations of the Offerors or the Trust, other than transactions in the ordinary
course of business and changes and transactions contemplated by the Registration
Statement and the Prospectus, as they may be amended or supplemented, and (C)
there has not been any material change in the capital stock, long term debt or
material liabilities of the Offerors. Neither of the Offerors nor any of the
Subsidiaries have any material contingent obligations which are not disclosed in
the Registration Statement and the Prospectus.
(xii) Neither the Offerors nor any of the Subsidiaries individually or
in the aggregate are in breach or violation of or default under any indenture,
mortgage, deed of trust, lease, contract, note or other agreement or instrument
to which it is a party or by which it or any of its properties is bound and
which default may result in a material adverse change in the condition
(financial or otherwise) or in the earnings, business, affairs, properties,
business prospects or results of operations of either of the Offerors and/or the
Subsidiaries taken as a whole. The consummation of the transactions contemplated
by this Underwriting Agreement, the Trust Agreement, the Guarantee and the
Expense Agreement and the fulfillment of the terms thereof will not result in a
breach or violation of any of the material terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, lease,
contract, note or other agreement or instrument to which the Offerors or any
Subsidiary is a party, or of the Offerors' charter or by-laws or any law,
decree, order, rule, writ, injunction or regulation applicable to the Offerors
or any Subsidiary of a court or of any regulatory body or administrative agency
or other governmental body having jurisdiction.
(xiii) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Offerors of this Underwriting Agreement, the Trust Agreement, the Guarantee and
the Expense Agreement and performance of their obligations thereunder (except
such additional steps as may be necessary to qualify the Preferred Securities
for public offering by the Underwriters under state securities or Blue Sky laws)
have been obtained or made and is in full force and effect.
(xiv) The Offerors and each Subsidiary hold all material licenses,
authorizations, charters, certificates and permits from governmental authorities
which are necessary to the conduct of their businesses and neither the Offerors
nor any Subsidiary has received notice of any proceeding relating to the
revocation or modification of any of such licenses, authorizations, charters,
certificates or permits. Except as described on Schedule ______ attached
hereto, the Offerors and the Subsidiaries own or otherwise possess rights to use
the licenses, inventions, copyrights, trademarks, service marks and trade names
presently employed by them in connection with the business now operated by them,
and neither the Offerors nor any Subsidiary has infringed or received any notice
of infringement of or conflict with asserted rights of others with respect to
any of the foregoing.
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(xv) Each of Ernst & Young LLP and Xxxxx Xxxxxxxx Xxxxx, P.A., who
have certified certain of the financial statements filed with the Commission and
included as part of the Registration Statement and Prospectus, are independent
public accountants within the meaning of the Act, the Rules and Regulation S-X
of the Commission and Rule 101 of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
(xvi) There are no agreements, contracts or other documents of a
character required to be described in the Registration Statement or the
Prospectus or required by Form S-1 to be filed as exhibits to the Registration
Statement which are not described or filed as required.
(xvii) No labor dispute exists or is imminent with the Company's
employees or with employees of any Subsidiary which could materially adversely
affect the condition (financial or otherwise), earnings, business, affairs,
properties, business prospects or results of operations of the Offerors.
(xviii) Except as contemplated by Section 2 hereof and as disclosed
in the Prospectus and permitted by the Rules, the Offerors have not (themselves
or through any person) taken and will not take, directly or indirectly, any
action designed to or which might reasonably be expected to, cause or result in
a violation of Section 5 of the Act or Regulation M under the Exchange Act
("Regulation M") or in stabilization or manipulation of the price of the
Company's common stock or the Preferred Securities.
(xix) This Underwriting Agreement has been duly authorized, executed
and delivered by the Offerors and is enforceable against the Offerors in
accordance with its terms, subject to all applicable bankruptcy, insolvency,
moratorium, receivership, and other laws relating to or affecting the rights of
creditors generally and subject to the discretion of a court of equity in
administering any such rights or remedies. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly authorized by
the Company, and, when executed and delivered by the Company on the Closing
Date, each of said agreements will constitute a valid and legally binding
obligation of the Company and will be enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy, moratorium, reorganization,
fraudulent transfer or other laws relating to or affecting creditors, rights
generally and except as any indemnification or contribution provisions thereof
may be limited under applicable securities laws or public policy. Each of the
Indenture, the Trust Agreement and the Guarantee has been duly qualified under
the Trust Indenture Act and will conform in all material respects to the
description thereof contained in the Prospectus.
(xx) Neither of the Offerors nor any Subsidiary is in violation of
any law, ordinance, governmental rule or regulation or court decree to which it
may be subject, which violation might have a material adverse effect on the
condition (financial or otherwise), earnings, business, affairs, properties,
business prospects or the results of operations of either of the Offerors and/or
the Subsidiaries taken as a whole. The Preferred Securities have been approved
for quotation on the Nasdaq National Market subject to official notice of
issuance.
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(b) Any certificate signed by any officer or trustee of the Trust or the
Company, as the case may be and delivered to you or counsel for the
Representatives shall be deemed a representation and warranty by the Trust or
the Offerors to the Underwriters as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Underwritten Preferred Securities.
On the basis of the representations, warranties and covenants herein contained,
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter
agrees, severally and not jointly, to purchase, at a price of $10 per share, the
number of the Underwritten Preferred Securities set forth opposite the name of
each Underwriter in Schedule I attached hereto, subject to adjustment in
accordance with Section 10 hereof. Each Underwriter shall be entitled to a
commission from the Company of $0.375 per Preferred Security sold by such
Underwriter.
Payment for the Underwritten Preferred Securities shall be made by
certified or bank cashier's checks in clearing house funds (which will be next
day funds) or, upon mutual agreement of the parties, by wire transfer of U.S.
Funds to a designated account of the Trust drawn to the order of the Trust
against book entry delivery of the Preferred Securities to the Representatives
for the accounts of the several Underwriters. Payment and delivery will be made
at such place as shall be agreed upon by the Representatives and the Trust, at
8:00 A.M., Central Time, on ____________, 1999 or at such other time and date
not later than six days after the Effective Date as you and the Offerors shall
agree upon, such time and date of payment being herein referred to as the
"Closing Date." Appropriate documentation regarding the Underwritten Preferred
Securities will be delivered as the Representatives request in writing not later
than the second full business day prior to the Closing Date, and will be made
available for inspection at such location as the Representatives may reasonably
request, at least one full business day prior to the Closing Date.
In addition, on the basis of the representations, warranties, agreements
and covenants herein contained and subject to the terms and conditions herein
set forth, the Trust hereby grants an Option to the several Underwriters to
purchase the Option Preferred Securities at the price per share as set forth in
the first paragraph of this Section 2. The Option may be exercised in whole or
in part (but only once) at any time upon written notice (or oral notice,
subsequently confirmed in writing) given not less than 30 days following the
date of this Underwriting Agreement, by you, as the Representatives of the
several Underwriters, to the Trust setting forth the number of Option Preferred
Securities as to which the several Underwriters are exercising the Option and
the names and denominations in which the Option Preferred Securities are to be
registered. Closing of the purchase of the Option Preferred Securities, if any,
shall occur no later than four business days following the date upon which
notice of exercise of the Option is given to the Trust. The number of Option
Preferred Securities to be purchased by each Underwriter shall be in the same
proportion as the total number of Underwritten Preferred Securities being
purchased by such Underwriter bears to the total number of Underwritten
Preferred Securities being purchased by all Underwriters as a group, as more
particularly indicated on Schedule I, subject to adjustment in accordance with
Section 10 and as adjusted by you in such manner to avoid fractional shares.
The Option may be exercised only to cover over-allotments in the sale of the
Underwritten Preferred Securities by the Underwriters. You, as Representatives,
may cancel such Option at any time prior to its expiration by giving written
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notice (or oral notice, subsequently confirmed in writing) of such cancellation
to the Offerors. To the extent, if any, that the Option is exercised, payment
for the Option Preferred Securities shall be made at such closing by a certified
or bank cashier's check in clearing house funds (which will be next day funds)
or, upon mutual agreement of the parties, by wire transfer of U.S. Funds to a
designated account of the Trust, drawn to the order of the Trust.
3. Offering by the Underwriters. It is understood that the Public
Offering of the Underwritten Preferred Securities is to be made as soon as the
Representatives deem it advisable to do so after the Registration Statement has
become effective. The Underwritten Preferred Securities are to be initially
offered to the public at the public offering price set forth in the Prospectus.
The Representatives may from time to time thereafter change the public offering
price and other selling terms. To the extent, if at all, that any Option
Preferred Securities are purchased pursuant to Section 2 hereof, the
Underwriters will offer them to the public on the foregoing terms.
It is further understood that you will act as Representatives for the
Underwriters in the offering and sale of the Preferred Securities, in accordance
with an Agreement Among Underwriters which has been entered into among you and
the several other Underwriters.
4. Covenants of the Offerors.
(a) The Offerors jointly and severally covenant and agree with the several
Underwriters that:
(i) The Offerors will use its best efforts to cause the Registration
Statement to become effective and will not, either before or after
effectiveness, file any amendment thereto or supplement to the Prospectus
(including a Prospectus filed pursuant to Rule 424(b) which differs from the
Prospectus on file at the time the Registration Statement becomes effective) of
which the Representatives shall not previously have been advised and furnished
with a copy or to which the Representatives shall have reasonably objected in
writing or which is not in compliance with the Act or Rules.
(ii) The Offerors will advise the Representatives promptly of any
request of the Commission or other securities regulatory agency ("Other
Securities Regulator") for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information, or of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the institution of any
proceedings for that purpose, or comparable action taken or initiated by any
Other Securities Regulator, and the Offerors will use their best efforts to
prevent the issuance of any stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Offerors will cooperate with the Representatives in
endeavoring to qualify the Preferred Securities for sale under the securities
laws of such jurisdictions (including foreign jurisdictions) as the
Representatives reasonably may have designated in writing, and will make such
applications, file such documents and furnish such information as may be
reasonably required for
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that purpose; provided however, the Offerors shall not be required to qualify as
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a foreign corporation or to file a general consent to service of process in any
jurisdiction where it is not so qualified or required to file such a consent.
The Offerors will, from time to time, prepare and file such statements, reports,
and other documents, as are or may be required to continue such qualifications
in effect for so long a period as the Representatives may reasonably request for
distribution of the Preferred Securities.
(iv) The Offerors will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any preliminary prospectus
as the Representatives may reasonably request. The Offerors will deliver to, or
upon the order of, the Representatives on the Effective Date and thereafter from
time to time during the period when delivery of a Prospectus is required under
the Act as many copies of the Prospectus in final form, or as thereafter amended
or supplemented, as the Representatives may reasonably request. The Offerors
will deliver to the Representatives at or before the Closing Date, one signed
copy of the Registration Statement and all amendments thereto including all
exhibits filed therewith, and will deliver to the Representatives such number of
copies of the Registration Statement, and of all amendments thereto, as the
Representatives may reasonably request.
(v) If during the period in which a Prospectus is required by law to
be delivered by an Underwriter or dealer any event shall occur as a result of
which, in the judgment of the Offerors or in the opinion of counsel for the
Underwriters, with the concurrence of the Offerors and its counsel, it becomes
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, not misleading, or, if it is necessary at any time
to amend or supplement the Prospectus to comply with any law, the Offerors
promptly will notify the Representatives and, subject to the Representatives'
prior review, prepare and file with the Commission and any appropriate Other
Securities Regulator an appropriate amendment or supplement to the Prospectus so
that the Prospectus as so amended or supplemented will not, in light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with the law.
(vi) The Offerors will make generally available to their security
holders in the manner contemplated by Rule 158(b) under the Act, as soon as it
is practicable to do so, but in any event not later than the forty-fifth day
after the fiscal quarter first occurring one year after the Effective Date, a
consolidated earnings statement of the Offerors (which need not be audited) in
reasonable detail covering a period of at least twelve consecutive months
beginning after the Effective Date, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and will advise you in writing when
such Statement has been so made available.
(vii) The Offerors will, for a period of five years from the Closing
Date, deliver to the Representatives copies of annual reports and information
furnished by the Offerors to their stockholders or filed with any securities
exchange pursuant to the requirements of such exchange or with the Commission
pursuant to the Act or the Exchange Act, as amended. The Offerors will deliver
to the Representatives similar reports with respect to any significant
subsidiaries, as that term is defined in the Rules, which are not consolidated
in the Offerors's financial statements.
11
(viii) As soon as the Offerors are advised thereof, they will advise
the Representatives, and confirm the advice in writing, that the Registration
Statement and any amendments shall have become effective.
(ix) The Offerors will use the net proceeds from the sale of the
Preferred Securities in the manner forth in the Prospectus under the caption
"Use of Proceeds."
(x) Other than as permitted by the Act and the Rules, the Offerors
will not distribute any prospectus or offering materials in connection with the
offering and sale of the Preferred Securities.
(xi) The Offerors will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Offerors, a registrar for the
Preferred Securities and will use their best efforts to establish and maintain
the listing of the Preferred Securities (and, subject to distribution thereof,
the Subordinated Debentures) on the Nasdaq National Market.
(xii) Except as contemplated hereby or by the Prospectus, the Offerors
will not, for a period of 90 days after the Effective Date of the Registration
Statement, offer to sell, contract to sell, sell or otherwise dispose of any
shares of the Preferred Securities or securities convertible into shares of the
Preferred Securities without your prior written consent. Furthermore, the
Offerors will cause each executive officer and director of the Offerors (as set
forth in the Prospectus) to furnish to you, on or prior to the execution of this
Underwriting Agreement, a letter or letters, in form and substance satisfactory
to counsel for Underwriters, pursuant to which each such person shall agree not
to offer for sale, sell, distribute or otherwise dispose of any shares of
preferred securities of the Offerors during the 90 days following the Effective
Date, except with your written consent; provided however, that nothing herein
shall prevent such persons from transferring or assigning their shares of the
Preferred Securities pursuant to a bona fide gift or pledge transaction.
The foregoing covenants and agreements shall apply to any successor of the
Offerors, including without limitation, any entity into which the Offerors might
convert or merge.
5. Costs and Expenses.
(a) Expenses. The Company, as borrower under the Subordinated Debentures,
will pay all expenses incident to the performance of its, and the Trust's,
obligations under this Underwriting Agreement, including (i) the preparation,
printing and any filing of the Registration Statement (including financial
statements and any schedules or exhibits and any document incorporated therein
by reference) and of each amendment or supplement thereto, (ii) the preparation,
printing and delivery to the Underwriters of this Underwriting Agreement, the
Operative Documents and such other documents as may be required in connection
with the offering, purchase, sale and delivery of the Preferred Securities,
(iii) the preparation, issuance and delivery of the certificates for the
Preferred Securities to the Underwriters, including any stock or other transfer
taxes and any stamp or other duties payable upon the sale, issuance, or delivery
of the Preferred Securities to the Underwriters, (iv) the fees and disbursements
of the Company's counsel, accountants and other
12
advisors, (v) rating agency fees, (vi) the fees and expenses of any trustee
appointed under any of the Operative Documents, including the fees and
disbursements of counsel for such trustees in connection with the Operative
Documents, (vii) the qualification of the Preferred Securities under state blue
sky laws, including filing fees and the reasonable fees and actual accountable
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, if any, (viii) the printing and delivery to the Underwriters of copies
of each preliminary prospectus and of the Prospectus and any amendments or
supplements thereto, if any, (ix) the preparation, printing and delivery
supplement thereto, if any, (x) the fees and expenses of any transfer agent or
registrar for the Preferred Securities, (xi) the filing fees incident to the
review by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Preferred Securities, (xii) the fees and expenses
incurred in connection with the listing of the Preferred Securities and, if
applicable, the Debentures on the Nasdaq National Market, (xiii) the fees and
expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee in connection with the Indenture and the
Debentures, (xiv) the fees and expenses of the Delaware Trustee and the Property
Trustee, including the fees and disbursements of counsel for the Delaware
Trustee and Property Trustee in connection with the Trust Agreement and the
Certificate of Trust, (xv) the fees and expenses of the Guarantee Trustee, (xvi)
any fees and expenses in connection with the rating of the Preferred Securities
and the Subordinated Debentures and (xvii) the cost and charges of qualifying
the Preferred Securities with the Depositary Trust Company.
(b) Termination of Agreement. If this Underwriting Agreement is terminated
because the conditions of Section 7 hereof are not satisfied or by the
Underwriters in accordance with the provisions of Section 6 or Section 10 of
this Underwriting Agreement, the Company shall reimburse the Underwriters for
all of their actual accountable out-of-pocket costs and expenses, including
reasonable attorneys' fees and out-of-pocket expenses reasonably incurred in
connection with investigating, marketing and proposing to market the Preferred
Securities or in contemplation of performing their obligations hereunder, but
the Company shall not in any event be liable to any of the several Underwriters
for damages on account of loss of anticipated profits from the sale by them of
the Preferred Securities.
6. Conditions of Obligations of the Underwriters. The obligations of the
several Underwriters are subject to the accuracy, as of the Closing Date, of the
representations and warranties of the Offerors contained herein, and to the
performance by the Offerors of their respective obligations hereunder and to the
following additional conditions:
(a) The Registration Statement shall have become effective not later than
4:30 P.M., Central Time, on _________, 1999, unless a later time and date is
agreed to by the Representatives, and no stop order or other order suspending
the effectiveness thereof or the qualification of the Preferred Securities under
the state securities or Blue Sky laws of any jurisdiction shall have been issued
and no proceeding for that purpose shall have been taken or, to the knowledge of
the Offerors, shall be contemplated or threatened by the Commission or any Other
Securities Regulator. If the Offerors have elected to rely upon Rule 430A of
the Rules, the price of the Preferred Securities and
13
any price-related information previously omitted from the effective Registration
Statement pursuant to such Rule 430A shall have been transmitted to the
Commission for filing Pursuant to Rule 424(b) of the Act within the prescribed
time period, and prior to the Closing Date the Offerors shall have provided
evidence satisfactory to the Representatives of such timely filing, or a post-
effective amendment providing such information shall have been promptly filed
and declared effective in accordance with the requirements of Rule 430A under
the Act. All requests for additional information on the part of the Commission
or any other government or regulatory authority with jurisdiction (to be
included in the Registration Statement or Prospectus or otherwise) shall be
complied with to the satisfaction of the Commission or such authorities.
(b) The Representatives shall have received on the Closing Date and any
Option Closing Date the opinion of Xxxxx Xxxx, counsel for the Offerors, dated
the Closing Date and any Option Closing Date, addressed to the Underwriters in
form and substance satisfactory to Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, PLC,
counsel to the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Arkansas with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus; each of the Subsidiaries is validly existing as a
state banking corporation in good standing under the laws of the jurisdiction of
its organization, and has corporate power and authority to own its properties
and conduct its business as described in the Prospectus; each of the Company and
the Subsidiaries is duly qualified to transact business in all jurisdictions in
which the conduct of its business or the location of the properties owned or
leased by it requires such qualification; and all of the outstanding shares of
capital stock of the Subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable, and except as set forth in the Prospectus and
the Registration Statement and except for directors' qualifying shares, if any,
no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into any shares
of capital stock or of ownership interests in the Subsidiaries are outstanding.
(ii) The capital stock, Debentures and Guarantee of the Company and
the equity securities of the Trust conform in all material respects to the
description thereof contained in the Prospectus. The common stock of the Company
authorized and issued as of __________________ is as set forth under the caption
"Capitalization" in the Prospectus, has been duly authorized and validly issued,
and is fully paid and nonassessable. There are no outstanding rights, options
or warrants to purchase from the Company, 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 or equity securities of the
Trust, except as described in the Prospectus in connection with the Company's
employee benefit plans.
(iii) The Registration Statement has become effective under the Act
and to the best knowledge of such counsel, no stop order proceedings with
respect thereto have been instituted or are pending or threatened under the Act.
14
(iv) The Registration Statement, all preliminary prospectuses, the
Prospectus and each amendment or supplement thereto comply as to form in all
material respects with the requirements of the Act and the Rules, except that
such counsel need express no opinion as to the financial statements, schedules
and other statistical and financial information included therein.
(v) The statements under the captions "Capitalization," "Description
of the Preferred Securities," "Description of the Subordinated Debentures,"
"Description of Guarantee," "Relationship Among the Preferred Securities, the
Subordinated Debentures and the Guarantee," "United States Federal Income Tax
Consequences," "ERISA Considerations," and "Supervision and Regulation," in the
Prospectus insofar as such statements constitute a summary of legal and
regulatory matters and consequences, documents, instruments or proceedings
referred to therein are accurate descriptions of the matters summarized therein
and fairly present in all material respects the information called for with
respect to such legal and regulatory matters and consequences, documents,
instruments and proceedings, other than financial and statistical data as to
which said counsel expresses no opinion or belief.
(vi) Any holders of securities of the Offerors who have rights to the
registration of shares of preferred securities or other securities because of
the filing of the Registration Statement by the Offerors have waived such rights
in writing.
(vii) To the best knowledge of such counsel, after due inquiry, except
as set forth in the Registration Statement and Prospectus, no holders of
preferred securities or other securities of the Offerors have registration
rights with respect to such securities.
(viii) To the best knowledge of such counsel, after due inquiry, there
are no contracts or documents required to be filed as exhibits to the
Registration Statement or described in the Registration Statement or Prospectus
which are not so filed or described as required, and such contracts and
statements as are summarized in the Registration Statement or Prospectus are
fairly summarized in all material respects as required.
(ix) To the best knowledge of such counsel, after due inquiry, there
are no legal, regulatory or administrative proceedings pending or threatened
against the Offerors or any Subsidiary which may be material to the earnings,
business, affairs, properties, business prospects or operations of either of the
Offerors and/or the Subsidiaries taken as a whole except as set forth in the
Prospectus.
(x) The Company has all requisite corporate power and authority to
issue, sell and deliver the Debentures in accordance with and upon the terms and
conditions set forth in this Underwriting Agreement and the Indenture as
described in the Prospectus. All corporate action required to be taken by the
Company for the authorization, issuance, sale and delivery of the Debentures in
accordance with such terms and conditions has been validly and sufficiently
taken. The Preferred Securities conform in all material respects to the
description thereof in the Registration Statement, the Prospectus and the Trust
Agreement. The Preferred Securities have been approved for quotation on the
Nasdaq National Market subject to official notice of issuance. There are no
15
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 or equity securities of the Offerors or the Subsidiaries
pursuant to the corporate charter, bylaws or other governing documents
(including without limitation, the Trust Agreement) of the Offerors or the
Subsidiaries, or, to such counsel's knowledge, any agreement or other instrument
to which either Offeror or any of the Subsidiaries is a party or by which either
Offeror or any of the Subsidiaries may be bound, provided however that the
holders of the Preferred Securities will have limited voting rights as described
in the Prospectus.
(xi) The Company has all requisite corporate power to enter into and
perform its obligations under this Underwriting Agreement, and this Underwriting
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding obligations of the Company
enforceable in accordance with its terms, except as the enforcement hereof or
thereof may be limited by general principles of equity and by bankruptcy,
insolvency, reorganization, receivership, fraudulent transfer, moratorium 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 public policy and certain remedies may not be available in
the case of a non-material breach.
(xii) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company. Each of the Indenture and
Guarantee is a valid and legally binding obligation of the Company enforceable
in accordance with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, fraudulent transfer, moratorium or other laws
affecting the rights and remedies of creditors generally and of general
principles of equity and public policy.
(xiii) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the benefits of the
Indenture and are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
effect of bankruptcy, insolvency, reorganization, receivership, fraudulent
transfer, moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity and public policy.
(xiv) The Expense Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding obligation of the
Company enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, fraudulent transfer,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity and public policy.
(xv) To such counsel's knowledge, neither of the Offerors nor any of
the Subsidiaries is in breach or violation of, or default under, with or without
notice or lapse of time or both, its corporate charter, bylaws or governing
document (including without limitation, the Trust Agreement). The execution,
delivery and performance of this Underwriting Agreement and the consummation of
the transactions contemplated by this Underwriting Agreement, the Indenture, the
16
Guarantee, the Expense Agreement and the Trust Agreement do not and will not
conflict with, result in the creation or imposition of any lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or any of
the Subsidiaries or the Preferred Securities pursuant to, or 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,
bylaws or governing document (including, without limitation, the Trust
Agreement) of the Offerors or the Subsidiaries, or to such counsel's knowledge,
any material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license or any other agreement or instrument
to which either Offeror or 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, franchise, license, Permit, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality, domestic or
foreign, known to such counsel having jurisdiction over the Offerors or the
Subsidiaries or any of their respective properties. 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 Arkansas or Maryland law in connection with the transactions
contemplated by this Underwriting Agreement in connection with the purchase and
distribution of the Preferred Securities by the Underwriters.
(xvi) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Underwriting Agreement and the Trust Agreement and the consummation of the
transactions therein contemplated (other than required by state securities and
Blue Sky laws as to which such counsel need express no opinion) except such as
have been obtained or made, specifying the same.
(xvii) The Offerors and the Subsidiaries hold all material licenses,
certificates and permits from governmental authorities that are necessary for
the conduct of their respective businesses.
(xviii) Except as set forth in the Prospectus, to such counsel's
knowledge, there are no contractual encumbrances or restrictions, or legal
restrictions (excluding any encumbrances or restrictions of general application
to state banks contained in laws, rules and regulations of applicable regulatory
authorities) 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.
(xix) The Trust will be classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes, and as a result, each
beneficial owner of Preferred Securities (a "Securityholder") will be treated as
owning an undivided beneficial interest in the Debentures.
(xx) Unless the Company exercises its option to extend the
interest payment period, stated interest on the Debentures generally will be
included in income by a Securityholder
17
at the time such interest income is paid or accrued in accordance with the
Securityholder's regular method of tax accounting.
(xxi) Gain or loss will be recognized by a Securityholder on a
sale of Preferred Securities (including a redemption for cash) in an amount
equal to the difference between the amount realized (which for this purpose,
will exclude amounts attributable to accrued interest or original issue discount
not previously included in income) and the Securityholder's adjusted tax basis
in the Preferred Securities sold or so redeemed. Gain or loss recognized by the
Securityholder on Preferred Securities held for more than one year will
generally be taxable as long-term capital gain or loss.
In rendering the opinion above, such counsel may rely as to all matters
governed by Delaware law on the opinion of counsel referred to in paragraph (c)
of this Section 6. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come to the
attention of such firm which leads it to believe that the Registration Statement
or any amendment thereto at the time the Registration Statement or amendment
became effective or the Prospectus or any amendment or supplement thereto as of
their respective dates contains an untrue statement of a material fact or omits
to state a material 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 (except that such counsel need express no view as to financial
statements, schedules and other financial information included therein). With
respect to such statement, such firm may state that their belief is based upon
the procedures set forth therein, but is without independent check and
verification.
(c) Morris, James, Hitchens and Xxxxxxxx, special Delaware counsel to the
Offerors, shall have furnished to the Underwriters their signed opinion, dated
as of Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to such counsel, to the effect that:
(i) The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
--- -
(S)(S)3801, et seq. (the "Delaware Act").
-- ---
(ii) Under the Trust Agreement and the Delaware Act, the Trust has the
requisite trust power and authority to conduct its business as described in the
Prospectus.
(iii) The Trust Agreement constitutes a legal, valid and binding
obligation of the Company and of each of the Trustees, and is enforceable
against the Company and each of the Trustees in accordance with its terms.
(iv) Under the Trust Agreement and the Delaware Act, the Trust has the
requisite trust power and authority to execute and deliver, and to perform its
obligations under, the Underwriting Agreement.
18
(v) Under the Trust Agreement and the Delaware Act, the execution
and delivery by the Trust of the Underwriting Agreement, and the performance by
the Trust of its obligations thereunder, have been authorized by all requisite
trust action on the part of the Trust.
(vi) The Preferred Securities have been duly authorized and, when
issued and sold in accordance with the Trust Agreement and the Underwriting
Agreement, will be validly issued and, subject to the qualifications set forth
in this paragraph, fully paid and nonassessable undivided beneficial interests
in the assets of the Trust. The Preferred Securities holders, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Preferred Securities holders may be obligated to make payments as provided in
the Trust Agreement.
(vii) Under the Delaware Act, the forms of certificates attached to
the Trust Agreement as Exhibits C and E are appropriate forms of certificates to
evidence ownership of the Common Securities and Preferred Securities,
respectively.
(viii) Under the Trust Agreement and the Delaware Act, the Preferred
Securities have no preemptive rights to subscribe for additional Trust
Securities.
(ix) The issuance and sale of the Preferred Securities and the Common
Securities by the Trust, the execution, delivery and performance by the Trust of
the Underwriting Agreement, and the consummation by the Trust of the
transactions contemplated by the Underwriting Agreement, are not prohibited by
(A) the Trust Agreement or (B) any Delaware statute or administrative regulation
applicable to the Trust.
(x) No authorization, approval, consent or order of any Delaware
governmental authority or Delaware agency is required to be obtained, and no
filing or registration with any Delaware governmental authority or Delaware
agency is required to be made, by the Trust solely in connection with the
issuance and sale by the Trust of the Preferred Securities.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (iii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(d) The Representatives shall have received from Xxxxxx, Xxxxxxx, Xxxxxx
and Xxxxxx, PLC, counsel to the Underwriters, an opinion dated the Closing Date,
substantially to the effects specified in subparagraphs (iii) and (iv) of
paragraph (b) of this Section 6, and that the Company is a validly organized and
existing corporation under the laws of the State of Arkansas. In rendering such
opinion, Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, PLC may rely as to all matters
governed other than by the Federal laws on the opinion of counsel referred to in
paragraph (b) of this Section 6. In
19
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such counsel
which leads them to believe that the Registration Statement, the Prospectus or
any amendment or supplement thereto as of their respective dates contains an
untrue statement of a material fact or omits to state a material 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 (except that such
counsel need express no view as to financial statements, schedules and other
financial information included therein). With respect to such statement, such
firm may state that their belief is based upon the procedures set forth therein,
but is without independent check and verification.
(e) The Representatives shall have received at or prior to the Closing
Date from Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, PLC a memorandum or summary, in form
and substance satisfactory to the Representatives, with respect to the
qualification for offering and sale by the Underwriters of the Underwritten
Preferred Securities under the securities laws of such states and foreign
jurisdictions as the Representatives may reasonably have requested.
(f) The Representatives shall have received on the Closing Date and any
Option Closing Date signed letters from each of Ernst & Young LLP and Xxxxx
Xxxxxxxx Xxxxx, P.A. addressed to the Underwriters dated as of the Effective
Date and again dated as of the Closing Date and any Option Closing Date, with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus. All such letters shall be in
form and substance satisfactory to the Representatives and Xxxxxx, Xxxxxxx,
Xxxxxx & Xxxxxx, PLC, counsel to the Underwriters.
(g) The Representatives shall have received on the Closing Date and any
Option Closing Date a certificate of the Chairman of the Board of Directors and
the Chief Financial Officer of the Company, respectively, to the effect that, as
of the Closing Date and any Option Closing Date, each of them severally
represents as follows:
(i) (1) the representations and warranties of the Company in this
Underwriting Agreement are true and correct on and as of the Closing Date and
any Option Closing Date, as the case may be, and (2) the Company has complied
with all the agreements and has satisfied all of the conditions on its part to
be performed or satisfied at or prior to the Closing Date and any Option Closing
Date, as the case may be.
(ii) (1) the Registration Statement has become effective under the
Act; (2) no stop order suspending the effectiveness of the Registration
Statement or the use or effectiveness of the Prospectus has been issued; (3) no
proceedings for such purpose have been taken or, to his knowledge, are
contemplated by the Commission or any Other Securities Regulator; and (4) all
requests for additional information on the part of the Commission or any Other
Securities Regulator have been complied with.
(iii) he has carefully examined the Registration Statement and the
Prospectus and, in his opinion, since the Effective Date, no event has occurred
which should have been set forth in
20
a supplement to or an amendment to the Prospectus which has not been so set
forth in such supplement or amendment
(h) The Underwriters shall have received from an authorized representative
of the Trust on the Closing Date, a certificate dated as of the Closing Date, to
the effect as follows:
(i) the representations and warranties of the Trust in this
Underwriting Agreement are true and correct as though made on and as of the
Closing Date (and, if applicable, the Option Closing Date);
(ii) the Trust has complied with all the agreements and satisfied all
the conditions required by this Underwriting Agreement to be performed or
satisfied by the Trust on or prior to the Closing Date and since the most recent
date as of which information is given in the Prospectus, except as contemplated
by the Prospectus, the Trust has not incurred any liabilities or obligations,
direct or contingent, or entered into any transactions not in the ordinary
course of business and there has not been any adverse change in the condition
(financial or otherwise) of the Trust.
(i) The Offerors shall have furnished to the Representatives such
additional information and further certificates and documents confirming the
representations and warranties contained herein and related matters as the
Representatives may reasonably have requested.
(j) On the Closing Date, the Underwriters shall have received duly
executed counterparts of the Trust Agreement, the Guarantee, the Indenture and
the Expense Agreement.
(k) Since the respective dates as of which information is given in the
Prospectus, there shall not have occurred any material adverse change in the
condition (financial or otherwise), or in the earnings, business, affairs,
properties, business prospects or results of operations of the Offerors or any
Subsidiary, whether or not arising in the ordinary course of business.
The opinions and certificates mentioned in this Underwriting Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Representatives and Xxxxxx,
Xxxxxxx, Xxxxxx & Xxxxxx, PLC, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Underwriting Agreement to
be fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives by notifying the Offerors of such termination in writing or
by confirmed telefax at or prior to the Closing Date. In such event, the
Offerors, and the Underwriters shall not be under any obligation to each other
(except to the extent provided in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Offerors. The obligations of the
Offerors to sell and deliver the Preferred Securities are subject to the
conditions that (a) at or before 4:30 P.M., Central Time, on ___________, 1999,
or such later time and date as the Offerors and the Representatives may from
time to time consent to in writing or by confirmed telefax, the
21
Registration Statement shall have become effective, and (b) at the Closing Date
no stop order suspending the effectiveness of the Registration Statement shall
have been issued or proceedings therefor initiated or threatened. If either of
the conditions hereinabove provided for in this Section 7 shall not have been
fulfilled when and as required by this Underwriting Agreement to be fulfilled,
this Underwriting Agreement may be terminated by the Offerors by notifying the
Representatives of such termination in writing or by confirmed telefax at or
prior to the Closing Date.
8. Indemnification.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act, the Rules and the Exchange Act from and against
any and all losses, claims, damages, liabilities, joint or several, and all
expenses (including costs of investigation and legal expenses) to which such
Underwriter or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions or proceedings in respect thereof) arise out of or are based upon any
material breach of any representation, warranty, agreement or covenant of the
Offerors herein, or any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Offerors will reimburse each Underwriter and
each such controlling person for legal and other expenses incurred in connection
with investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that the Offerors 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 an untrue statement, or alleged untrue statement, or
omission or alleged omission made in the Registration Statement, any preliminary
prospectus, the Prospectus, or such amendment or supplement, in reliance upon or
in conformity with written information furnished to the Offerors by or through
the Representatives specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which the Offerors may
otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Offerors, each
of their directors, each of their officers who have signed the Registration
Statement, and each person, if any, who controls the Offerors, within the
meaning of the Act, the Rules and the Exchange Act, from and against any losses,
claims, damages, liabilities or expenses to which the Offerors or any such
director, officer, or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon any material
breach of any agreement of the Underwriters herein, or any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made; and will reimburse any legal or other
expenses reasonably incurred by the Offerors or any such director, officer, or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding;
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provided, however, that each Underwriter will be liable in such case only to the
-------- -------
extent that such untrue statement, or alleged untrue statement or omission or
alleged omission has been made in the Registration Statement, any preliminary
prospectus, the Prospectus, or such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Offerors by or
through the Representatives expressly for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action or proceeding, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action or proceeding is brought against any
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof with counsel satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
the foregoing, the indemnified party, at any time after such assumption of
defense by the indemnifying party, shall be entitled to participate in such
defense and to engage separate counsel (at the indemnifying party's expense) if,
in the indemnified party's reasonable belief, a conflict of interest exists with
counsel engaged by the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 8 is for
any reason held to be unavailable to an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each applicable 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 and expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the Underwriters
on the other hand from the offering of the Preferred Securities 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 parties in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities, expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Offerors on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Offerors bears to the
underwriting discounts and commissions received by the Underwriters. The
relative fault of a party shall be determined by reference to, among other
things, whether the true or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by each party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or
23
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any such
action or claim.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Preferred Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute shall be several in proportion to their respective
underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
preliminary prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
9. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements of the Offerors and officers or
trustees of the Offerors herein or in certificates delivered pursuant hereto,
and the indemnity and contribution agreements contained in Section 8 hereof,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriters or any controlling
person, or by or on behalf of the Offerors or any of their officers, trustees,
directors or controlling persons, and shall survive delivery of the Underwritten
Preferred Securities and, if applicable, the Option Preferred Securities to the
Representatives or termination of this Underwriting Agreement.
10. Default by Underwriters. If any Underwriter shall fail to purchase
and pay for the Preferred Securities which such Underwriter has agreed to
purchase and pay for hereunder (otherwise than by reason of any default on the
part of the Offerors), you, as Representatives of the Underwriters, shall use
your best efforts to procure within twenty-four hours thereafter one or more of
the other Underwriters, or any others, to purchase from the Offerors such
amounts as may be agreed upon and upon the terms set forth herein, the Preferred
Securities which the defaulting Underwriter or Underwriters failed to purchase.
If during such twenty-four hours you, as Representatives, shall not have
procured such other Underwriters, or any others, to purchase the
24
Preferred Securities agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of Preferred Securities with
respect to which such result shall occur does not exceed 10% of the Preferred
Securities which the Underwriters are obligated to purchase hereby, the other
Underwriters shall be obligated, severally, in proportion to the respective
number of shares which they are obligated to purchase hereunder, to purchase the
Preferred Securities which such defaulting Underwriter or Underwriters failed to
purchase, or (b) if the aggregate number of Preferred Securities with respect to
which such default shall occur exceeds 10% of the Preferred Securities covered
hereby, the Offerors or you, as Representatives of the Underwriters will have
the right, by written notice given within the next twenty-four hour period to
the parties to this Underwriting Agreement, to terminate this Underwriting
Agreement without liability on the part of the non-defaulting Underwriters or of
the Offerors except to the extent provided in Section 8 hereof. In the event of
a default by any Underwriter or Underwriters, as set forth in this Section 10,
the time of closing may be postponed for such period, not to exceed seven days,
as you, as Representatives, may determine in order that the required changes in
the Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriters" includes any person
substituted for a defaulting Underwriter. Any action taken under Section 10
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Underwriting Agreement.
11. Notices. All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered or telefaxed and
confirmed as follows: if to the Underwriters, to Xxxxxxxx Inc., 000 Xxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: W. Xxxxx Xxxxx; with a copy to
H. Xxxx Xxxxxxx, III, Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, PLC, 000 Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx, 00000; if to the Offerors, to Bank of the
Ozarks, Inc., 00000 Xxxxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, XX; with a copy to Xxxxxxx X. Xxxxxxxx, Xxxxx Xxxx, 000 Xxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000; to any of the Trustees,
to the following addresses as applicable: ___________________.
12. Termination. This Underwriting Agreement may be terminated by notice
to the Offerors as follows:
(a) at any time prior to the earlier of (i) the time the Preferred
Securities are released by you for sale by notice to the Underwriters, or (ii)
11:30 A.M., Central Time, on the first business day following the Effective
Date;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or a
development involving a prospective material adverse change in or affecting
particularly the condition, financial or otherwise, of the Offerors or the
earnings, affairs or business prospects of the Offerors, whether or not arising
in the ordinary course of business, which would, in your reasonable judgment,
materially impair the investment quality of the Preferred Securities, (ii) any
outbreak of hostilities or other national or international calamity or crisis or
change in economic or political conditions if the effect of such outbreak,
calamity, crisis or change on the financial markets of the United States would,
in your reasonable judgment, make the
25
offering or delivery of the Preferred Securities impracticable, (iii) suspension
of trading or general trading halts in securities on the New York Stock
Exchange, the American Stock Exchange, The Nasdaq Stock Market or the over-the-
counter market or limitation on prices (other than limitations on hours or
numbers of days or trading) for securities on either such Exchange, The Nasdaq
Stock Market or the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your reasonable
opinion materially and adversely affects or will materially or adversely affect
the business or operations of the Offerors, (v) declaration of a banking
moratorium by either federal or New York State authorities, or (vi) the taking
of any action by any federal, state or local government or agency in respect of
its monetary or fiscal affairs which in your reasonable opinion has a material
adverse effect on the securities markets in the United States; or
(c) as provided in Sections 6 and 10 of this Underwriting Agreement.
13. Successors. This Underwriting Agreement has been and is made solely
for the benefit of the Underwriters, the Offerors and their respective
successors, executors, administrators, heirs, and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. The term "Successors" shall not include
any purchaser of the Preferred Securities merely because of such purchase.
14. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Underwriting Agreement and the representations,
warranties and covenants of the Offerors in this Underwriting Agreement shall
remain in full force and effect regardless of (a) any termination of this
Underwriting Agreement, (b) any investigation made by or on behalf of the
Underwriters or controlling person or (c) delivery of any payment for the
Preferred Securities under this Underwriting Agreement.
This Underwriting Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Underwriting Agreement shall be governed by, and construed in
accordance with, the laws of the State of Arkansas applicable to contracts made
and performed within such State.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Offerors and the several Underwriters in
accordance with its terms.
Very truly yours,
BANK OF THE OZARKS, INC.
By:
------------------------------------------
Its: Chairman and Chief Executive Officer
------------------------------------------
OZARK CAPITAL TRUST
By:
------------------------------------------
Its: Administrative Trustee
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
XXXXXXXX INC., As Representative of the
Several Underwriters named in Schedule I
By:
----------------------------------------
Authorized Officer
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SCHEDULE I
Name No. of Underwritten
Preferred Securities
-----------------------
Xxxxxxxx Inc.
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx & Xxxxxx Inc.
Xxxxxx, Xxxx & Xxxxx, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
---------
TOTAL 1,500,000
----- =========
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