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Exhibit - 1.1
2,600,000 Preferred Securities
Second Bancorp Capital Trust I
[_____]% Cumulative Trust Preferred Securities
(Liquidation Amount of $10 per Preferred Security)
UNDERWRITING AGREEMENT
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_______________, 2001
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
as co-Representative of the Several Underwriters
named in Schedule I hereto
000 Xxxxx Xxxxxxxx, 0xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
XXXXXXX X'XXXXX & PARTNERS, L.P.
as co-Representative of the Several Underwriters
named in Schedule I hereto
0 Xxxxx Xxxxx Xxxxxx, 000xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Second Bancorp Incorporated, an Ohio corporation (the "Company") and
its financing subsidiary, Second Bancorp Capital Trust I, a Delaware business
trust (the "Trust," and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell to the several underwriters listed on
Schedule I hereto (the "Underwriters"), pursuant to the terms of this Agreement,
2,600,000 of the Trust's [_____]% Cumulative Trust Preferred Securities, with a
liquidation amount of $10.00 per preferred security (the "Preferred
Securities"), to be issued under the Trust Agreement (as hereinafter defined),
the terms of which are more fully described in the Prospectus (as hereinafter
defined). The aforementioned 2,600,000 Preferred Securities to be sold to the
Underwriters are herein called the "Firm Preferred Securities." Solely for the
purpose of covering over-allotments in the sale of the Firm Preferred
Securities, the Offerors further propose that the Trust issue and sell to the
Underwriters, at their option, up to an additional 390,000 Preferred Securities
(the "Option Preferred Securities") upon exercise of the over-allotment option
granted in Section 1 hereof. The Firm Preferred Securities and any Option
Preferred Securities are herein collectively referred to as the "Designated
Preferred Securities." Xxxxxx, Xxxxxxxx & Company, Incorporated and Sandler
X'Xxxxx & Partners, L.P. are acting as representatives of the Underwriters and
in such capacity are sometimes herein referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES,
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DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
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(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly,
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to purchase from the Trust, at a purchase price of $10.00 per Preferred Security
(the "Purchase Price"), the respective number of Firm Preferred Securities set
forth opposite the name of such Underwriter in Schedule I hereto. Because the
proceeds from the sale of the Firm Preferred Securities will be used to purchase
from the Company its Debentures (as hereinafter defined and as described in the
Prospectus), the Company shall pay to each Underwriter a commission of $[_____]
per Firm Preferred Security purchased (the "Firm Preferred Securities
Commission"). The Representatives may by notice to the Company amend Schedule I
to add, eliminate or substitute names set forth therein (other than to eliminate
the names of the Representatives) and to amend the number of Firm Preferred
Securities to be purchased by any firm or corporation listed thereon, provided
that the total number of Firm Preferred Securities listed on Schedule I shall
equal 2,600,000.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 390,000 Option Preferred
Securities, and upon the exercise of such option in accordance with this Section
1, the Offerors hereby agree that the Trust shall issue and sell to the
Underwriters, severally and not jointly, all or any portion of the Option
Preferred Securities at the same Purchase Price per share paid for the Firm
Preferred Securities. If any Option Preferred Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Trust
that proportion (subject to adjustment as you may determine to avoid fractional
shares) of the number of Option Preferred Securities to be purchased that the
number of Firm Preferred Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to 2,600,000. Because the proceeds from the sale of the
Option Preferred Securities will be used to purchase from the Company its
Debentures, the Company shall pay to the Underwriters a commission of $[_____]
per Option Preferred Security for each Option Preferred Security purchased (the
"Option Preferred Securities Commission"). The option hereby granted (the
"Option") shall expire 30 days after the date upon which the Registration
Statement (as hereinafter defined) becomes effective and may be exercised only
for the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Firm Preferred Securities. The Option may
be exercised in whole or in part at any time (but not more than once) by you
giving notice (confirmed in writing) to the Trust setting forth the number of
Option Preferred Securities as to which the Underwriters are exercising the
Option and the time, date and place for payment and delivery of the Global
Securities (as hereafter defined) for such Option Preferred Securities. Such
time and date of payment and delivery for the Option Preferred Securities (the
"Option Closing Date") shall be determined by you, but shall not be earlier than
two nor later than five full business days after the exercise of such Option,
nor in any event prior to the Closing Date (as hereinafter defined). The Option
Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of the Global Securities for the Firm Preferred
Securities shall be made at the offices of Xxxxxx, Xxxxxxxx & Company,
Incorporated, 000 Xxxxx Xxxxxxxx, 0xx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or such
other place as shall be agreed to by you and the Offerors, at 10:00 a.m., St.
Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), not later than 12:00 p.m. on
the fourth) full business day following the date of this Agreement (the "Closing
Date"), or unless postponed in accordance with the provisions of Section 9. The
Trust shall deliver or cause to be delivered to you for the account of the
Underwriters against payment to or upon the order of the Trust of the Purchase
Price in federal or other immediately available funds, the Firm Preferred
Securities in the form of one or more permanent global securities in definitive
form (the "Global Securities") deposited with the Property Trustee (as
identified below) as custodian for the Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
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Commission for such Option Preferred Securities shall be made on the Option
Closing Date at the Underwriters' offices, or at such other place as the
Offerors and you shall determine and the Global Securities for such Option
Preferred Securities shall be delivered to the Property Trustee as custodian for
DTC. Upon delivery, the Option Preferred Securities shall be in the form of one
or more Global Securities registered in the name of Cede & Co., as nominee of
DTC. Such payments shall be made to an account designated by the Trust by wire
transfer of same day funds, in the amount of the Purchase Price therefor,
against delivery by or on behalf of the Trust to you for the respective accounts
of the several Underwriters of one or more Global Certificates for the
Designated Preferred Securities to be purchased by the Underwriters.
Time shall be of the essence, and delivery of the Global Securities for
the Designated Preferred Securities at the time and place specified pursuant to
this Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Delaware Trustee and Property Trustee, the
Administrative Trustees named therein (collectively, the "Trustees"), and the
Company, in substantially the form heretofore delivered to the Underwriters,
said Agreement being hereinafter referred to as the "Trust Agreement." In
connection with the issuance of the Designated Preferred Securities, the Company
proposes (i) to issue its [_____]% Subordinated Debentures due 2031 (the
"Debentures") pursuant to an Indenture, to be dated as of [_______________],
2001, between the Company and Wilmington Trust Company, as indenture trustee
(the "Indenture") and (ii) to guarantee certain payments on the Designated
Preferred Securities pursuant to a Preferred Securities Guarantee Agreement
between the Company and Wilmington Trust Company, as guarantee trustee (the
"Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
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The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the 1934 Act and the
rules and regulations thereunder (the "1934 Act Regulations") at the
time they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the 1934
Act Regulations and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading, except that the Quarterly
Report on Form 10-Q for the quarter ended March 31, 2001 was amended to
include in Part I, Item 2 - Management's Discussion and Analysis of
Financial Condition and Results of Operation a discussion of material
changes in financial condition from December 31, 2000 to March 31, 2001
and the Quarterly Report on Form 10-Q for the quarter ended June 30,
2001 was amended to include in Part I, Item 2 - Management's Discussion
and Analysis of Financial Condition and Results of Operation a
discussion of material changes in financial condition from December 31,
2000 to June 30, 2001.
(ii) The Offerors have prepared and filed with the Commission a
registration statement on Form S-3 (File Numbers 333-68910 and
333-68910-01) for the registration of the Designated Preferred
Securities, the Guarantee and up to $29,900,000 aggregate principal
amount of Debentures under the Securities Act of 1933, as amended (the
"1933 Act"), including the related prospectus subject to completion,
and one or more amendments to such registration statement may have been
so filed, in each case in conformity in all material respects with the
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requirements of the 1933 Act, the rules and regulations promulgated
thereunder (the "1933 Act Regulations") and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and
regulations thereunder. Copies of such registration statement,
including any amendments thereto and any documents incorporated by
reference therein, each Preliminary Prospectus (as defined herein)
contained therein and the exhibits, financial statements and schedules
to such registration statement, if any, as amended and revised to date,
have heretofore been delivered by the Offerors to the Representatives.
After the execution of this Agreement, the Offerors will file with the
Commission (A) if such registration statement, as it may have been
amended, has been declared by the Commission to be effective under the
1933 Act, a prospectus in the form most recently included in an
amendment to such registration statement (or, if no such amendment
shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A of the 1933 Act
Regulations ("Rule 430A") or permitted by Rule 424(b) of the 1933 Act
Regulations ("Rule 424(b)") and as have been provided to and not
objected to by the Representatives prior to (or as are agreed to by the
Representatives subsequent to) the execution of this Agreement, or (B)
if such registration statement, as it may have been amended, has not
been declared by the Commission to be effective under the 1933 Act, an
amendment to such registration statement, including a form of final
prospectus, necessary to permit such registration statement to become
effective, a copy of which amendment has been furnished to and not
objected to by the Representatives prior to (or is agreed to by the
Representatives subsequent to) the execution of this Agreement. As used
in this Agreement, the term "Registration Statement" means such
registration statement, as amended at the time when it was or is
declared effective under the 1933 Act, including (1) all financial
schedules, if any, and exhibits thereto, (2) all documents (or portions
thereof) incorporated by reference therein filed under the 1934 Act,
and (3) any information omitted therefrom pursuant to Rule 430A and
included in the Prospectus (as hereinafter defined); the term
"Preliminary Prospectus" means each prospectus subject to completion
filed with such registration statement or any amendment thereto,
including all documents (or portions thereof) incorporated by reference
therein under the 1934 Act (including the prospectus subject to
completion, if any, included in the Registration Statement and each
prospectus filed pursuant to Rule 424(a) under the 1933 Act); and the
term "Prospectus" means the prospectus first filed with the Commission
pursuant to Rule 424(b)(1) or (4) or, if no prospectus is required to
be filed pursuant to Rule 424(b)(1) or (4), the prospectus included in
the Registration Statement, in each case including the financial
schedules, if any, and all documents (or portions thereof) incorporated
by reference therein under the 1934 Act. The date on which the
Registration Statement becomes effective is hereinafter referred to as
the "Effective Date."
(iii) The documents incorporated by reference in the Preliminary
Prospectus or Prospectus or from which information is so incorporated
by reference, when they became effective or were filed with the
Commission, as the case may be, complied in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations (except
that the Quarterly Report on Form 10-Q for the quarter ended March 31,
2001 was amended to include in Part I, Item 2 - Management's Discussion
and Analysis of Financial Condition and Results of Operation a
discussion of material changes in financial condition from December 31,
2000 to March 31, 2001 and the Quarterly Report on Form 10-Q for the
quarter ended June 30, 2001 was amended to include in Part I, Item 2 -
Management's Discussion and Analysis of Financial Condition and Results
of Operation a discussion of material changes in financial condition
from December 31, 2000 to June 30, 2001), and when read together and
with the other information in the Preliminary Prospectus or Prospectus,
as the case may be, at the time the Registration Statement became or
becomes effective and at the Closing Date and any Option Closing Date,
did not or will not, as the case may be, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
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circumstances under which they were made, not misleading. As of the
date that each Preliminary Prospectus was filed with the Commission or
as of the date that the Prospectus and any amendment or supplement
thereto was filed with the Commission (or, if not filed, on the date
provided by the Offerors to the Underwriters in connection with the
offering and sale of the Preferred Securities), as the case may be, no
event has or will have occurred which should have been set forth in an
amendment or supplement to any of the documents incorporated by
reference in the Preliminary Prospectus or Prospectus which has not
then been set forth in such an amendment or supplement.
(iv) No order preventing or suspending the use of any Prospectus
(or, if the Prospectus is not in existence, the Preliminary Prospectus)
has been issued by the Commission, nor has the Commission, to the
knowledge of the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary Prospectus,
at the time of filing thereof, (A) complied in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
(B) did not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that this
representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished by
the Underwriters in the first, third, sixth, seventh, eighth and ninth
paragraphs beneath the heading "Underwriting" in the Prospectus (such
information referred to herein as the "Underwriters' Information"). As
of the date that each Preliminary Prospectus was filed with the
Commission or as of the date that the Prospectus and any amendment or
supplement thereto was filed with the Commission (or, if not filed, on
the date provided by the Offerors to the Underwriters in connection
with the offering and sale of the Designated Preferred Securities), as
the case may be, no event has or will have occurred which should have
been set forth in an amendment or supplement to the Preliminary
Prospectus or Prospectus which has not been set forth in the
Preliminary Prospectus, Prospectus or such an amendment or supplement.
Each Preliminary Prospectus and the Prospectus will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
("XXXXX") system, except to the extent permitted by Regulation S-T.
(v) The Registration Statement has been declared effective under
the 1933 Act, and no post-effective amendment to the Registration
Statement has been filed with the Commission as of the date of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the Company's knowledge, threatened
by the Commission. At the Effective Date and at all times subsequent
thereto, up to and including the Closing Date and, if applicable, the
Option Closing Date, the Registration Statement and any post-effective
amendment thereto (A) complied and will comply in all material respects
with the requirements of the 1933 Act, the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder) and (B)
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, not misleading; PROVIDED,
HOWEVER, that this representation and warranty does not apply to
Underwriters' Information. At the Effective Date and at all times when
the Prospectus is required to be delivered in connection with offers
and sales of Designated Preferred Securities, including, without
limitation, the Closing Date and, if applicable, the Option Closing
Date, the Prospectus, as amended or supplemented, (A) complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the Trust Indenture Act (and the rules
and regulations thereunder) and (B) did not contain and will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
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make the statements therein, in light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that this
representation and warranty does not apply to Underwriters'
Information. As of the date that the Registration Statement was filed
with the Commission, no event has or will have occurred which should
have been set forth in an amendment or supplement to such registration
statement which has not then been set forth in such an amendment or
supplement. The Registration Statement will be identical to the
electronically transmitted copy thereof filed with the Commission
pursuant to its XXXXX system, except to the extent permitted by
Regulation S-T.
(vi)
(A) The Company is duly organized, validly existing and in
good standing under the laws of the State of Ohio, with full corporate
power and authority to own, lease and operate its properties and
conduct its business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and as currently
being conducted and is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHC Act").
(B) 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 trust power and authority to own its
property and conduct its business as described in the Registration
Statement and Prospectus, to issue and sell its common securities (the
"Common Securities") to the Company pursuant to the Trust Agreement, to
issue and sell the Designated Preferred Securities, to enter into and
perform its obligations under this 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 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
Agreement and described in the Prospectus; the Trust is not a party to
or bound by any agreement or instrument other than this Agreement, the
Trust Agreement among the Administrative Trustees, the Company and
Wilmington Trust Company dated August 29, 2001 (the "Original 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 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, and at the
Closing Date or any Option Closing Date will be, classified as a
grantor trust for United States federal income tax purposes; the Trust
is not, and at the Closing Date or any Option Closing Date will not be,
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.
(vii) The Company has only the direct and indirect subsidiaries
identified on Exhibit A attached hereto and incorporated herein (the
"Subsidiaries"). The Company does not own or control, directly or
indirectly, more than 5% of any class of equity security of any
corporation, association or other entity other than the Subsidiaries.
Each Subsidiary is a corporation, business trust or bank duly organized
or incorporated, as the case may be, validly existing and in good
standing under the laws of its respective jurisdiction of organization.
Each such Subsidiary has full power and authority to own, lease and
operate its properties and to conduct its business as described in and
contemplated by the Registration Statement and the
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Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted. The deposit
accounts of The Second National Bank of Xxxxxx (the "Bank") are insured
by the Federal Deposit Insurance Corporation (the "FDIC") up to the
maximum amount provided by law; and no proceedings for the
modification, termination or revocation of any such insurance are
pending or, to the knowledge of the Offerors, threatened.
(viii) The Company and each of the Subsidiaries is duly
qualified to transact business as a foreign corporation, bank or
business trust, as the case may be, and is in good standing in each
other jurisdiction in which it owns or leases property or conducts its
business so as to require such qualification and in which the failure
to so qualify would, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis. All of the issued and
outstanding shares of capital stock of the Subsidiaries (except for the
Trust) (A) have been duly authorized and are validly issued, (B) are
fully paid and nonassessable except to the extent such shares or
interests may be deemed assessable under 12 U.S.C. Section 55 or 12
U.S.C. Section 1831o, and (C) are wholly owned, directly or indirectly,
by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, restriction upon voting or transfer,
preemptive rights, claim, equity or other defect.
(ix) The securities of the Trust will conform in all material
respects to the description thereof contained in the Prospectus (or, if
the Prospectus is not in existence, the Preliminary Prospectus). The
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable, and
no such shares were issued in violation of the preemptive or similar
rights of any security holder of 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 any securities of the Offerors or the Subsidiaries,
and there are no outstanding securities convertible into or
exchangeable for any securities of the Offerors or the Subsidiaries 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
articles of incorporation or regulations, the Trust Agreement or any
agreement or other instrument to which an Offeror is a party or by
which an Offeror is bound. As of the date set forth therein, the
Company had an authorized and outstanding capitalization as set forth
in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(x)
(A) The Trust has all requisite trust power and authority to
issue, sell and deliver the Designated Preferred Securities in
accordance with and upon the terms and conditions set forth in this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate and trust action required to be
taken by the Offerors for the authorization, issuance, sale and
delivery of the Designated Preferred Securities in accordance with such
terms and conditions has been validly and duly taken. The Designated
Preferred Securities, when delivered and paid for in accordance with
this Agreement, will be duly and validly issued and outstanding, will
represent valid fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, will be entitled to the benefits
of the Trust Agreement pertaining to holders of Preferred Securities,
will not be issued in violation of or subject to any preemptive or
similar rights, and will conform to the description thereof in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and the Trust
Agreement.
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None of the Designated 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, enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be
limited by and/or subject to bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to
general principles of equity, will be in the form contemplated by, and
entitled to the benefits pertaining to holders of Debentures under, the
Indenture, will conform in all material respects to the description
thereof contained in the Prospectus and will be owned by the Trust free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon transfer, preemptive rights, claim,
equity or other defect.
(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 holders of the Preferred Securities, will
constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, or similar laws affecting the rights of
creditors generally and subject to general principles of equity, and
will conform in all material respects to the description thereof
contained in the Prospectus.
(D) The Agreement as to Expenses and Liabilities between the
Company and the Trust (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 enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
and/or subject to bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject to general
principles of equity, and will conform in all material respects to the
description thereof contained in the Prospectus.
(xi) Subject to the following sentence, the Offerors and
the Subsidiaries have complied in all material respects with all
foreign, federal, state and local statutes, regulations, ordinances and
rules as now in effect and applicable to the ownership and operation of
their properties or the conduct of their businesses as described in and
contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted. The Company has applied
for certain licenses and approvals in connection with its pending
acquisition of Commerce Exchange Corporation. Neither the Company nor
any non-banking Subsidiary engages directly or indirectly in any
activity prohibited by the Board of Governors of the Federal Reserve
System (the "FRB") or the BHC Act or the regulations promulgated
thereunder.
(xii) Subject to the following sentence, the Offerors and the
Subsidiaries have all material permits, easements, consents, licenses,
franchises and other governmental and regulatory authorizations from
all appropriate federal, state, local or other public authorities
("Permits") as are necessary to own and lease their properties and
conduct their businesses in the manner described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted. The Company has applied for certain licenses
and approvals in connection with its
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pending acquisition of Commerce Exchange Corporation. All such Permits
are in full force and effect and each of the Offerors and the
Subsidiaries are in all material respects complying therewith, and no
event has occurred that allows, or after notice or lapse of time would
allow, revocation or termination thereof or will result in any other
material impairment of the rights of the holder of any such Permit.
Such Permits contain no restrictions that would materially impair the
ability of the Company or the Subsidiaries to conduct their businesses
in the manner consistent with their past practices. Neither the
Offerors nor any of the Subsidiaries have received notice or otherwise
has knowledge of any proceeding or action relating to the revocation or
modification of any such Permit.
(xiii) Neither of the Offerors nor any of the Subsidiaries are
in breach or violation of their corporate charter, regulations, by-laws
or other governing documents (including without limitation, the
Original Trust Agreement) in any material respect. Neither of the
Offerors nor any of the Subsidiaries is, and to the knowledge of the
Offerors no other party is, in violation, breach or default (with or
without notice or lapse of time or both) in the performance or
observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license, Permit or any other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, which such breach, violation or default could have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis, and to the knowledge of
the Offerors, no other party has asserted that the Offerors or any of
the Subsidiaries is in such violation, breach or default (provided that
the foregoing shall not apply to defaults by borrowers from the Bank),
or (B) except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), any order,
decree, judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or
foreign, having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties the breach, violation or default of
which could have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
(xiv) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Guarantee, the Indenture, the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) do not and will
not conflict with, result in the creation or imposition of any material
lien, claim, charge, encumbrance or restriction upon any property or
assets of the Offerors or the Subsidiaries or the Designated Preferred
Securities pursuant to, constitute a breach or violation of, or
constitute a default under, with or without notice or lapse of time or
both, any of the terms, provisions or conditions of (A) the charter,
regulations or by-laws of the Company or the Subsidiaries, (B) any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license, Permit or any other agreement or
instrument to which the Offerors or the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound,
or (C) any order, decree, judgment, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, having jurisdiction over the Offerors or the
Subsidiaries or any of their respective properties which conflict,
creation, imposition, breach, violation or default would have either
singly or in the aggregate a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries on a
consolidated basis. No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by
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this Agreement, the Trust Agreement, the Indenture, the Guarantee, the
Expense Agreement, the Registration Statement and the Prospectus (or
any Preliminary Prospectus), except such as have been obtained under
the 1933 Act and the Trust Indenture Act and from The Nasdaq Stock
Market relating to the listing of the Designated Preferred Securities,
such as may be required in connection with the Company's pending
acquisition of Commerce Exchange Corporation, and such as may be
required under state securities laws or Interpretations or Rules of the
National Association of Securities Dealers, Inc. ("NASD") in connection
with the purchase and distribution of the Designated Preferred
Securities by the Underwriters.
(xv) The Company has all requisite corporate power and
authority and the Trust has all requisite trust power and authority to
enter into this Agreement, and this Agreement has been duly and validly
authorized, executed and delivered by the Offerors and constitutes the
legal, valid and binding agreement of the Offerors, enforceable against
the Offerors in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to
general principles of equity and except as any indemnification or
contribution provisions thereof may be limited under applicable
securities laws. 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 bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject to general
principles of equity and except as any indemnification or contribution
provisions thereof may be limited under applicable securities laws.
Each of the Indenture, the Trust Agreement and the Guarantee has been
duly qualified under the Trust Indenture Act and will conform to the
description thereof contained in the Prospectus.
(xvi) The Company and the Subsidiaries have good and marketable
title in fee simple to all real property and good title to all personal
property owned by them and material to their business, in each case
free and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except
such as are referred to in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) or such as do not
materially affect the value of such property in the aggregate and do
not materially interfere with the use made or proposed to be made of
such property; and all of the leases under which the Company or the
Subsidiaries hold real or personal property are valid and existing
leases, enforceable against the Company or the Subsidiaries and, to our
knowledge, enforceable against the other parties, and are in full force
and effect with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such
real or personal property, and neither the Company nor any of the
Subsidiaries is in default in any material respect of any of the terms
or provisions of any material leases.
(xvii) Ernst & Xxxxx, LLP, who have certified certain of the
consolidated financial statements of the Company and the Subsidiaries
including the notes thereto, which as defined herein are deemed to be
part of the Registration Statement and Prospectus, are independent
public accountants with respect to the Company and the Subsidiaries, as
required by the 1933 Act and the 1933 Act Regulations.
(xviii) The consolidated financial statements including the
notes thereto, which as defined herein are deemed to be part of the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) with respect to
the Company and the Subsidiaries comply with the 1933 Act and the 1933
Act Regulations and
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present fairly in all material respects the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of operations, cash flows and
shareholders' equity of the Company and the Subsidiaries for the
periods specified and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, except
that the interim financial statements are subject to normal year-end
adjustments and do not include all footnotes required by generally
accepted accounting principles for audited financial statements. The
selected consolidated financial data concerning the Company and the
Subsidiaries included in the Registration Statement and the Prospectus
(or such Preliminary Prospectus) comply in all material respects with
the 1933 Act and the 1933 Act Regulations, present fairly the
information set forth therein, have been derived from the financial
statements or operating records of the Company and have been compiled
on a basis consistent with that of the consolidated financial
statements of the Company and the Subsidiaries in the Registration
Statement and the Prospectus (or such Preliminary Prospectus). The
other financial, statistical and numerical information included in the
Registration Statement and the Prospectus (or such Preliminary
Prospectus) is accurate in all material respects, complies in all
material respects with the 1933 Act and the 1933 Act Regulations, has
been derived from the financial statements or operating records of the
Company, presents fairly the information shown therein, and to the
extent applicable has been compiled on a basis consistent with the
consolidated financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or such
Preliminary Prospectus).
(xix) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), except as otherwise stated therein:
(A) neither of the Offerors nor any of the Subsidiaries
has sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree which is material to the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis;
(B) there has not been any material adverse change in, or
any development which is reasonably likely to have a material adverse
effect on, the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(C) neither of the Offerors nor any of the Subsidiaries
has incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions, other than in the ordinary
course of business, which are material to the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis;
(D) neither of the Offerors has declared or paid any
dividend, and neither of the Offerors nor any of the Subsidiaries has
become delinquent in the payment of principal or interest on any
outstanding borrowings, except for a dividend in an amount equal to
$0.17 per share paid by the Company on July 31, 2001 and a dividend in
an amount equal to $0.17 per share declared by the Company as of
September 11, 2001 and payable on October 31, 2001 to shareholders of
record on October 15, 2001;
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(E) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital leases or,
other than in the ordinary course of business, short-term borrowings of
the Offerors or the Subsidiaries, except for any such changes to the
capital stock resulting from the exercise of outstanding employee stock
options and the acquisition of additional capital stock under the
Company's dividend reinvestment plan; and
(F) there has not occurred any other event and there has
arisen no set of circumstances required by the 1933 Act or the 1933 Act
Regulations to be disclosed in the Registration Statement or Prospectus
which has not been so set forth in the Registration Statement or such
Prospectus as fairly and accurately summarized therein.
(xx) Except as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Offerors, threatened,
against or affecting the Offerors or the Subsidiaries or any of their
respective properties before or by any court or any regulatory,
administrative or governmental official, commission, board, agency or
other authority or body, or any arbitrator, wherein an unfavorable
decision, ruling or finding could reasonably be expected to have a
material adverse effect on the consummation of this Agreement or the
transactions contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis
or which is required to be disclosed in the Registration Statement or
the Prospectus (or such Preliminary Prospectus) and is not so
disclosed.
(xxi) There are no contracts or other documents required to be
filed as exhibits to the Registration Statement by the 1933 Act or the
1933 Act Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as exhibits or
incorporated by reference into the Registration Statement, or that are
required to be summarized in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) that are not
so summarized.
(xxii) Neither of the Offerors has taken, directly or
indirectly, any action designed to result in or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Offerors to facilitate the sale or resale of the Designated Preferred
Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and neither of the
Offerors is aware of any such action taken or to be taken by any
affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names and other rights necessary to conduct the businesses
now conducted by them in all material respects or as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and neither the Company nor the Subsidiaries
have received any notice of infringement or conflict with asserted
rights of others with respect to any patents, copyrights, trademarks,
service marks, trade names or other rights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Company and the Subsidiaries on a
consolidated basis, and the Offerors do not know of any basis for any
such infringement or conflict individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
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(xxiv) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), no labor dispute involving the Company or the Subsidiaries
exists or, to the knowledge of the Offerors, is imminent which might be
expected to have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis
or which is required to be disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). Neither the Company nor any of the Subsidiaries has
received notice of any existing or threatened labor dispute by the
employees of any of its principal suppliers, customers or contractors
which might be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xxv) The Offerors and the Subsidiaries have timely and
properly prepared and filed all necessary federal, state, local and
foreign tax returns which are required to be filed and have paid all
taxes shown as due thereon and have paid all other taxes and
assessments to the extent that the same shall have become due, except
such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. A "timely and properly" filed tax
return includes any tax returns that were filed pursuant to valid
extensions granted by the applicable taxing authority. The Offerors
have no knowledge of any tax deficiency which has been or might be
assessed against the Offerors or the Subsidiaries which, if the subject
of an unfavorable decision, ruling or finding, would have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(xxvi) Each of the contracts, agreements and instruments
material to the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and its
Subsidiaries on a consolidated basis, or listed, described, or attached
as an exhibit to the Company's Annual Report on Form 10-K for the year
ended December 31, 2000, or its Quarterly Reports on Form 10-Q for the
quarters ended March 31 and June 30, 2001, as filed with the Commission
is in full force and effect and is the legal, valid and binding
agreement of the Offerors or the Subsidiaries, enforceable in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity, except where the cancellation, termination or
unenforceability does not constitute a material change in the affairs
of the Company and the Subsidiaries on a consolidated basis. Except as
disclosed in the Prospectus (or such Preliminary Prospectus), neither
the Company nor any Subsidiary is (with or without notice or lapse of
time or both) in breach or default in any material respect thereunder
(or upon consummation of the transactions contemplated by this
Agreement will be in breach or default in any material respect
thereunder) and, to the knowledge of the Offerors, no other party to
any such agreement is (with or without notice or lapse of time or both)
in breach or default in any material respect thereunder.
(xxvii) No relationship, direct or indirect, exists between or
among the Company or the Subsidiaries, on the one hand, and the
directors, officers, trustees, shareholders, customers or suppliers of
the Company or the Subsidiaries, on the other hand, which is required
to be described in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) which is not adequately described therein.
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(xxviii) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering
and sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the
Designated Preferred Securities except as disclosed in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xxix) The Designated Preferred Securities have been approved
for quotation on The Nasdaq National Market subject to official notice
of issuance.
(xxx) Except as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no contractual encumbrances or restrictions or
material legal restrictions required to be described therein, on the
ability of the Subsidiaries (A) to pay dividends or make any other
distributions on its capital stock or to pay any indebtedness owed to
the Company, (B) to make any loans or advances to, or investments in,
the Company or (C) to transfer any of its property or assets to the
Company.
(xxxi) Neither of the Offerors is an "investment company," or
an entity "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(xxxii) The Offerors have not distributed and will not
distribute prior to the Closing Date any prospectus in connection with
the Offering, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933
Act and the 1933 Act Regulations and reviewed by the Representatives.
(xxxiii) The activities of the Offerors and the Subsidiaries
are permitted under applicable federal and state banking laws and
regulations. The Company has all necessary approvals, including the
approval of the FRB, to own the capital stock of the Bank and Second
Merger Corp. and to own the common securities of the Trust. The Bank
has all necessary approvals, including the approval of the Office of
the Comptroller of the Currency (the "OCC"), to own the capital stock
of Second National Loan Servicing Company. Neither the Company nor any
of the Subsidiaries is a party or subject to any agreement or
memorandum with, or directive or other order issued by, the FRB, the
OCC or other regulatory authority having jurisdiction over it (each, a
"Regulator," and collectively, the "Regulators"), which imposes any
restrictions or requirements not generally applicable to entities of
the same type as the Company and the Subsidiaries. Neither the Company
nor any Subsidiary is subject to any directive from any Regulator to
make any material change in the method of conducting their respective
businesses, and no such directive is pending or threatened by such
Regulators.
(xxxiv) The Bank has properly administered all accounts for
which it acts as a fiduciary, including but not limited to accounts for
which it serves as a trustee, agent, custodian, personal
representative, guardian, conservator or investment advisor, in
accordance with the terms of the governing documents and applicable
state and federal law and regulation and common law, except where the
failure to be in compliance would not have a material adverse effect
upon the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. Neither the Bank nor any of its
directors, officers or employees has committed any material breach of
trust with respect to any such fiduciary account, and the accountings
for each such fiduciary account are true and correct in all material
respects and accurately reflect the assets of such fiduciary account in
all material respects.
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(xxxv) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(xxxvi) The Offerors and the Subsidiaries are not in violation
of any provisions of Section 517.075, Florida Statutes, relating to
doing business with the Government of Cuba or with any person or
affiliate located in Cuba.
(xxxvii) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred
any liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated thereby, except for any
finder's or broker's fee or agent's commission payable in connection
with the Company's pending acquisition of Commerce Exchange
Corporation.
(xxxviii) No report or application filed by the Company or any
of its Subsidiaries with the FRB, the OCC, the FDIC or any other state
or federal regulatory authority, as of the date it was filed or
amended, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading when made or failed to
comply in all material respects with the applicable requirements of the
FRB, the OCC or any other state or federal regulatory authority, as the
case may be.
(xxxix) Based upon current guidelines of the FRB, the
Debentures will constitute "Tier 1" capital (as defined in 12 C.F.R.
Part 225), subject to applicable regulatory restrictions on the amount
thereof that can be included in Tier 1 capital.
(xl) None of the Offerors, the Subsidiaries or, to the best
knowledge of the Offerors, any other person associated with or acting
on behalf of the Offerors or any of the Subsidiaries, including,
without limitation, any director, officer, agent, or employee of any of
the Subsidiaries or the Company has, directly or indirectly, while
acting on behalf of such Offeror or Subsidiary (i) used any corporate
funds for unlawful contributions, gifts, entertainment, or other
unlawful expenses relating to political activity; (ii) made any
unlawful contribution to any candidate for foreign or domestic office,
or to any foreign or domestic government officials or employees or
other person charged with similar public or quasi-public duties, other
than payments required or permitted by the laws of the United States or
any jurisdiction thereof or to foreign or domestic political parties or
campaigns from corporate funds, or failed to disclose fully any
contribution in violation of law; (iii) violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any
other payment of funds or either or both of the Offerors or a
Subsidiary or retained any funds which constitute a violation of any
law, rule or regulation or which was or is required to be disclosed in
the Registration Statement or the Prospectus pursuant to the
requirements of the 1933 Act or the 1933 Act Regulations.
(xli) Except as disclosed in the Registration Statement or
Prospectus, neither the Company nor any Subsidiary has any liability
under any "pension plan," as defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). The employee benefit plans,
including employee welfare benefit plans, of the Company and each of
the Subsidiaries (the "Employee Plans") have been operated in material
compliance with the applicable provisions of ERISA, the Internal
Revenue Code of 1986, as amended (the "Code"), all regulations, rulings
and announcements promulgated or issued thereunder and all other
applicable governmental laws and regulations (except to the extent such
noncompliance would not, in the aggregate, have a material adverse
effect upon the condition (financial or otherwise)
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earnings, affairs, business, prospects or results of operations of the
Offerors or the Subsidiaries on a consolidated basis). No reportable
event under Section 4043(c) of ERISA has occurred with respect to any
Employee Plan of the Company or any of the Subsidiaries for which the
reporting requirements have not been waived by the Pension Benefit
Guaranty Corporation. No prohibited transaction under Section 406 of
ERISA, for which an exemption does not apply, has occurred with respect
to any Employee Plan of the Company or any of the Subsidiaries. There
are no pending or, to the knowledge of the Offerors, threatened, claims
by or on behalf of any Employee Plan, by any employee or beneficiary
covered under any such Employee Plan or by any governmental authority
or otherwise involving such Employee Plans or any of their respective
fiduciaries (other than for routine claims for benefits). All Employee
Plans that are group health plans have been operated in material
compliance with the group health plan continuation coverage
requirements of Section 4980B of the Code.
(xlii) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general or specific authorizations, (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets, (C) access to assets is permitted
only in accordance with management's general or specific authorization,
and (D) the recorded accounts for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect thereto. The books, records and accounts and systems of
internal accounting controls of the Company and its Subsidiaries comply
in all material respects with the requirements of Section 13(b)(2) of
the 1934 Act.
(xliii) Except as described in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus), there is no factual basis for any action, suit
or other proceeding involving the Company or the Subsidiaries or any of
their material assets for any failure of the Company or any of the
Subsidiaries, or any predecessor thereof, to comply with any
requirements of federal, state or local regulation relating to air,
water, solid waste management, hazardous or toxic substances, or the
protection of health or the environment; except where such action, suit
or other proceeding would not have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis. Except as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus) or as would not have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis, none of the property
owned or leased by the Company or any of the Subsidiaries is
contaminated with any waste or hazardous substances, and neither the
Company nor any of the Subsidiaries may be deemed an "owner or
operator" of a "facility" or "vessel" which owns, possesses,
transports, generates or disposes of a "hazardous substance" as those
terms are defined in Section 9601 of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section
9601 et seq.
(xliv) The Company and the Subsidiaries maintain insurance
covering in all material respects their properties, personnel and
business. Such insurance insures against such losses and risks as, in
the judgment of the executive officers of the Company, are adequate to
protect in all material respects the Company and the Subsidiaries and
their businesses. Neither the Company nor any of the Subsidiaries has
received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures shall have to be
made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and shall be
outstanding and duly in force on the Closing Date and, if applicable,
the Option
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Closing Date, with such exceptions as would not have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xlv) Neither the Company nor any Subsidiary has any agreement
or understanding with any person (A) concerning the future acquisition
by the Company or the Bank of a controlling interest in any entity or
(B) concerning the future acquisition by any person of a controlling
interest in the Company or any Subsidiary, in either case that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed by
the Company that is not disclosed in the Prospectus.
3. OFFERING BY THE UNDERWRITERS.
-----------------------------
After the Registration Statement becomes effective or, if the
Registration Statement is already effective, after this Agreement becomes
effective, the Underwriters propose to offer the Firm Preferred Securities for
sale to the public upon the terms and conditions set forth in the Prospectus.
The Underwriters may from time to time thereafter reduce the public offering
price and change the other selling terms, provided the proceeds to the Trust
shall not be reduced as a result of such reduction or change. Because the NASD
is expected to view the Preferred Securities as interests in a direct
participation program, the offering of the Preferred Securities is being made in
compliance with the applicable provisions of Rule 2810 of the NASD's conduct
rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by it (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS.
---------------------------------
The Offerors jointly and severally covenant with the Underwriters as
follows:
(a) The Offerors shall cause the Registration Statement and any
amendments thereto, if not effective at the time of execution of this Agreement,
to become effective as promptly as possible. If the Registration Statement has
become or becomes effective pursuant to Rule 430A and information has been
omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and
file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or,
if required by Rule 430A, a post-effective amendment to the Registration
Statement (including the Prospectus) containing all information so omitted and
will provide evidence satisfactory to the Representatives of such timely filing.
(b) The Offerors shall notify you promptly, and confirm such notice
in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when
the Prospectus or any supplement to the Prospectus or any amended
Prospectus has been filed;
(ii) of the receipt of any comments or requests from the
Commission;
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(iii) of any request of the Commission to amend or supplement
the Registration Statement, any Preliminary Prospectus or the
Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, or suspending
the qualification of any of the Designated Preferred Securities for
offering or sale in any jurisdiction or the institution or threat of
institution of any proceedings for any of such purposes. The Offerors
shall use their best efforts to prevent the issuance of any such stop
order or of any other such order and if any such order is issued, to
cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to
time without charge, as soon as available, as many copies as the Underwriters
may reasonably request of (i) non-original executed copies of the registration
statement as originally filed and of all amendments thereto, including exhibits,
whether filed before or after the Registration Statement becomes effective, (ii)
all exhibits and documents incorporated therein or filed therewith, (iii) all
consents and certificates of experts in executed form, (iv) the Preliminary
Prospectus and all amendments and supplements thereto, and (v) the Prospectus,
and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Designated Preferred Securities as
contemplated herein and in the Trust Agreement and the Prospectus. The Offerors
shall not file any amendment to the registration statement as originally filed
or to the Registration Statement and shall not file any amendment thereto or
make any amendment or supplement to the Preliminary Prospectus or to the
Prospectus of which you shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings thereof or to
which you or counsel for the Underwriters shall reasonably object. If it is
necessary, in the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel, to amend or supplement the Registration Statement or the
Prospectus in connection with the distribution of the Designated Preferred
Securities, the Offerors shall forthwith amend or supplement the Registration
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission (provided the Underwriters or counsel for the Underwriters does
not reasonably object), and furnishing to you such number of copies as you may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or the Prospectus, as the case may be
(in form and substance reasonably satisfactory to you and counsel for the
Underwriters). If any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus to correct an untrue statement of a material
fact or to include a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or if for
any reason it is necessary at any time to amend or supplement the Prospectus to
comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall,
subject to the second sentence of this subsection (d), forthwith at their cost
and expense amend or supplement the Prospectus by preparing and filing with the
Commission, and furnishing to you, such number of copies as you may reasonably
request of an amendment or amendments of, or a supplement or supplements to, the
Prospectus (in form and substance satisfactory to you and counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
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(e) The Offerors shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
you may reasonably request and shall continue such qualifications in effect so
long as may be advisable for distribution of the Designated Preferred
Securities; provided, however, that the Offerors shall not be required to
qualify to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the foregoing. The
Offerors shall file such statements and reports as may be required by the laws
of each jurisdiction in which the Designated Preferred Securities have been
qualified as above. The Offerors will notify you immediately of, and confirm in
writing, the suspension of qualification of the Designated Preferred Securities
or threat thereof in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the
Preferred Securities to be eligible for clearance and settlement through the
facilities of DTC.
(g) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158; provided, however,
that the Offerors will be deemed to have complied with their obligation to
furnish such consolidated earnings statement to you if such statement is
electronically transmitted to the Commission pursuant to its XXXXX system.
(h) The Offerors shall use the net proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall
furnish to the Representatives copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the Commission) or with any
national securities exchange or the Nasdaq National Market or other
self-regulatory organization and such other documents, reports and information
concerning the business and financial conditions of the Offerors as the
Representatives may reasonably request, other than such documents, reports and
information for which the Offerors has the legal obligation not to reveal to the
Representatives; provided, however, that the Offerors will be deemed to have
complied with their obligation to furnish such reports and communications to the
Representatives if such information is electronically transmitted to the
Commission pursuant to its XXXXX system.
(j) For a period of 90 days from the Effective Date, the Offerors
shall not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities, any other beneficial
interests in the assets of the Trust or any securities of the Trust or the
Company that are substantially similar to the Designated Preferred Securities,
including any guarantee of such beneficial interests or substantially similar
securities, or securities convertible into or exchangeable for or that represent
the right to receive any such beneficial interest or substantially similar
securities, except for the registration of the Designated Preferred Securities
and the sales to the Underwriters pursuant to this Agreement, without the prior
written consent of the Representatives.
(k) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to become quoted on The Nasdaq National Market,
or in lieu thereof a national securities exchange, and to remain so quoted,
provided this shall not prevent the Company from redeeming the
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Designated Preferred Securities pursuant to the terms of the Trust Agreement. If
the Designated Preferred Securities are exchanged for Debentures, the Company
shall use its best efforts to have the Debentures promptly listed on The Nasdaq
National Market or other organization on which the Designated Preferred
Securities are then listed, and to have the Debentures promptly registered under
the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, or take or refrain from taking any
action which will cause or result in any material adverse change in the
financial position, capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the Offerors and
the Subsidiaries on a consolidated basis.
(m) The Offerors shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Representatives, purchase,
redeem or call for redemption, or prepay or give notice of prepayment (or
announce any redemption or call for redemption, or any repayment or notice of
prepayment) of the Offerors' securities, except for any purchases of shares of
common stock pursuant to a publicly announced stock buy-back program and except
for any such purchases resulting from the exercise of outstanding employee stock
options and the acquisition of additional capital stock under the Company's
dividend reinvestment plan.
(n) The Offerors shall not take, directly or indirectly, any action
designed to result in or which constitutes or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any security
of the Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Offerors will not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities without your prior consent, which consent shall not be unreasonably
delayed or withheld.
(p) The Offerors shall comply with all registration, filing and
reporting requirements of the 1934 Act for so long as the Preferred Securities
or the Debentures shall remain outstanding.
(q) The Offerors shall inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution of the
Designated Preferred Securities by the Underwriters if either of the Offerors or
any of the Subsidiaries commences engaging in business with the government of
Cuba or with a person or affiliate located in Cuba, with such information to be
provided within 90 days after the commencement thereof or after a change occurs
with respect to previously reported information.
5. PAYMENT OF EXPENSES.
--------------------
Whether or not this Agreement is terminated or the sale of the
Designated Preferred Securities to the Underwriters is consummated, the Company
covenants and agrees that it will pay or cause to be paid
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(directly or by reimbursement) all costs and expenses incident to the
performance of the obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements);
(b) all fees, expenses and disbursements of the Offerors' counsel
and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith.
(d) all fees and expenses incurred in connection with filings made
with the NASD and DTC;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the Nasdaq National Market;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture, the Guarantee and the Expense Agreement;
and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters
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other than in accordance with paragraph (c) above, or for the reimbursement of
any expenses of the Underwriters.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
--------------------------------------------
The obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise of the option granted by the
Offerors in Section 1 of this Agreement, the Option Preferred Securities, are
subject, in your sole discretion exercised in good faith, to the accuracy of the
representations and warranties and compliance with the agreements of the
Offerors herein as of the date hereof and as of the Closing Date (or in the case
of the Option Preferred Securities, if any, as of the Option Closing Date), to
the accuracy of the written statements of the Offerors made pursuant to the
provisions hereof, to the performance by the Offerors of their covenants and
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Representatives, shall be contemplated
by the Commission or any state authority. Any request on the part of the
Commission or any state authority for additional information (to be included in
the Registration Statement or Prospectus or otherwise) shall have been disclosed
to you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of a fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Trust Agreement, and
the Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be satisfactory
in all material respects to counsel for the Underwriters, and the Offerors and
the Subsidiaries shall have furnished to such counsel all documents and
information relating thereto that they may reasonably request to enable them to
pass upon such matters.
(d) Xxxxx, Xxxxx, Xxxxxxx and Xxxxx, LLP, counsel for the Offerors,
shall have furnished to you their signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) The Company is a corporation validly existing under the laws
of the State of Ohio and in good standing upon the records of the
Secretary of State of Ohio. The
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Company is duly registered as a bank holding company under the BHC Act.
Based solely upon the Officers' Certificate, the entities listed on
Exhibit A are the only subsidiaries, direct or indirect, of the
Company. Each of the Subsidiaries (other than the Trust) is a
corporation validly existing under the laws of its jurisdiction of
incorporation or organization and is in good standing upon the records
of the state or jurisdiction in which it is incorporated or organized.
The Trust is validly existing and in good standing as a business trust
under the Delaware Business Trust Act. Each of the Company and the
Subsidiaries (other than the Trust) has full corporate power and
authority to own or lease its properties and to conduct its business as
such business is described in the Prospectus and is currently conducted
in all material respects. Under the Trust Agreement and the Delaware
Business Trust Act, the Trust has the trust power and authority to
conduct its business as described in the Prospectus. All outstanding
shares of capital stock of the Subsidiaries (other than the Trust) have
been duly authorized and are, to such counsel's knowledge, fully paid
and are nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 1831, are owned, directly or
indirectly, by the Company and, to such counsel's knowledge, except as
disclosed in the Prospectus, there are no outstanding rights, options
or warrants to purchase any such shares or securities convertible into
or exchangeable for any such shares, except for rights to acquire
additional capital stock under the Company's dividend reinvestment plan
or 401(k) plan.
(ii) The Debentures and Guarantee of the Company and the equity
securities of the Trust conform to the description thereof contained in
the Prospectus in all material respects. The capital stock of the
Company authorized and issued as of June 30, 2001 is as set forth under
the caption "Capitalization" in the Prospectus, has been duly
authorized and is, to such counsel's knowledge, fully paid and is
nonassesable. The form of certificates to evidence the Designated
Preferred Securities has been approved by the Trust and is in due and
proper form and complies with all applicable requirements of the
Delaware Business Trust Act. To the such counsel's knowledge, there are
no outstanding rights, options or warrants to purchase, no other
outstanding securities convertible into or exchangeable for, and no
commitments, plans or arrangements to issue, any shares of capital
stock of the Company or equity securities of the Trust, except as
described in the Prospectus and except for capital stock issuable under
the Company's dividend reinvestment plan or 401(k) plan.
(iii) The issuance, sale and delivery of the Designated
Preferred Securities and Debentures in accordance with the terms and
conditions of this Agreement, the Trust Agreement and the Indenture
have been duly authorized by all necessary actions of the Offerors. All
of the Designated Preferred Securities have been duly and validly
authorized and, when delivered and paid for in accordance with this
Agreement, will be duly and validly issued, fully paid and
nonassessable beneficial interest in the assets of the Trust, and will
conform to the description thereof in the Registration Statement, the
Prospectus and the Trust Agreement. The Designated Preferred Securities
have been approved for quotation on the Nasdaq Stock Market subject to
official notice of issuance. There are no preemptive or other rights to
subscribe for or to purchase, and other than as disclosed in the
Prospectus, no restrictions upon the voting or transfer of, any equity
securities of the Offerors or the Subsidiaries pursuant to the
corporate charter, by-laws 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, other than certain restrictions described under [Credit
Agreements] of the Company.
(iv) The Company has all requisite corporate power and the Trust
has all requisite trust power to enter into and perform their
obligations under this Agreement. This
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Agreement has been duly and validly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding obligation
of the Company enforceable in accordance with its terms, and, under the
Trust Agreement and the Delaware Business Trust Act, this Agreement has
been duly and validly authorized, executed and delivered by the Trust
and constitutes the legal, valid and binding obligation of the Trust
enforceable in accordance with its terms, except as the enforcement
hereof or thereof may be limited by general principles of equity and by
bankruptcy or other laws relating to or affecting creditors' rights
generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain
remedies may not be available in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act, has been duly
authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors generally and
of general principles of equity.
(vi) The Debentures have been duly authorized, executed, and
delivered by the Company 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, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of equity.
The holders of the Debentures are entitled to the benefits of the
Indenture pertaining to holders of Debentures.
(vii) 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 against the Company in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally and of general principles of
equity.
(viii) 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,
by-laws or governing document (including without limitation, the Trust
Agreement). The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this
Agreement, and the Trust Agreement do not and will not conflict with,
result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the
Offerors or the Subsidiaries or the Designated Preferred Securities
pursuant to, or constitute a material breach or violation of, or
constitute a material default under, with or without notice or lapse of
time or both, any of the terms, provisions or conditions of the
charter, by-laws or governing document (including without limitation,
the Trust Agreement) of the Offerors or the Subsidiaries, or any
material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise agreement, license agreement 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 agreement, license agreement, 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 which, in each case, is material to the Offerors
and the Subsidiaries on a consolidated basis. Except as previously made
or obtained, 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 Ohio law (excluding Ohio blue sky
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law, as to which no opinion is rendered) in connection with the
transactions contemplated by this Agreement with respect to the
purchase and distribution of the Designated Preferred Securities by the
Underwriters.
(ix) To such counsel's knowledge, holders of securities of the
Offerors do not have any right that, if exercised, would require the
Offerors to cause such securities to be included in the Registration
Statement or have waived such right. To such counsel's knowledge,
neither the Company nor any of the Subsidiaries is a party to any
agreement or other instrument which grants rights for or relating to
the registration of any securities of the Offerors.
(x) To such counsel's knowledge, except as set forth in the
Registration Statement and the Prospectus, (i) no action, suit or
proceeding at law or in equity is pending or threatened in writing to
which the Offerors or the Subsidiaries is or is threatened to be made a
party, and (ii) no action, suit or proceeding is pending or threatened
in writing against or affecting the Offerors or the Subsidiaries or any
of their properties, before or by any court or governmental official,
commission, board or other administrative agency, authority or body, or
any arbitrator, wherein an unfavorable decision, ruling or finding
could reasonably be expected to have a material adverse effect on the
consummation of this Agreement or the issuance and sale of the
Designated Preferred Securities as contemplated herein or the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries on a
consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the
Trust Agreement, the Registration Statement and the Prospectus, except
such as have been obtained under the 1933 Act and the Trust Indenture
Act and from the Nasdaq National Market relating to the listing of the
Designated Preferred Securities, except such as may be required in
connection with the Company's pending acquisition of Commerce Exchange
Corporation, and except such as may be required under state securities
laws or Interpretations or Rules of the NASD in connection with the
purchase and distribution of the Designated Preferred Securities by the
Underwriters.
(xii) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the exhibits, financial
statements or other financial data included therein or omitted
therefrom and Underwriters' Information, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations as of their
respective dates of effectiveness or issuance. The documents
incorporated by reference in the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the
exhibits, financial statements or other financial data included therein
or omitted therefrom, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
1934 Act and the 1934 Act Regulations as of their respective dates of
effectiveness.
(xiii) To such counsel's knowledge, there are no contracts,
agreements, leases or other documents of a character required to be
disclosed in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so disclosed or
filed.
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(xiv) The statements under the captions "Risk Factors",
"Description of the Trust", "Description of the Preferred Securities,"
"Description of the Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Debentures and the
Guarantee," "Certain Federal Income Tax Consequences," and "ERISA
Considerations" in the Prospectus and "Regulation and Supervision" in
"Item 1. Business" and "Item 3. Legal Proceedings" in the Company's
Annual Report on Form 10-K for the year ended December 31, 2000,
incorporated by reference into the Prospectus, insofar as such
statements constitute a description of legal and regulatory matters,
documents or instruments referred to therein, are accurate descriptions
of the matters purported to be summarized therein in all material
respects and fairly present the information called for with respect to
such legal matters, documents and instruments, other than financial and
statistical data as to which said counsel shall not be required to
expresses any opinion or belief.
(xv) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under
the 1933 Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made within the time period required by Rule 424(b); to
the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for a stop order are pending or threatened by the
Commission.
(xvi) Except as disclosed in the Prospectus, to the best of such
counsel's knowledge, there are no contractual encumbrances or
restrictions, or material legal restrictions required to be disclosed
on the ability of any Subsidiary to pay dividends or make any other
distributions on its capital stock or to pay indebtedness owed to the
Offerors.
(xvii) Neither the Company nor the Trust is or, after giving
effect to the offering and sale of the Designated Preferred Securities
and the application of the proceeds thereof as described in the
Prospectus, neither the Company nor the Trust will be, required to
register as an "investment company" as such term is defined under the
Investment Company Act.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation, certificates as to the
identity of any and all material contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchise agreements, license
agreements or other agreements or instruments, and all material permits,
easements, consents, license agreements, franchise agreements and government
regulatory authorizations, for purposes of paragraphs (viii), (ix), (xiii) and
(xvi) hereof, and certificates of public officials. Such counsel may also state
that, with respect to all matters of Missouri law referred to therein, such
counsel has assumed for purposes of the opinion that the laws of the State of
Ohio are identical to the laws of the State of Missouri. In giving such opinion,
such counsel may rely upon the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, special
Delaware counsel to the Offerors as to certain matters relating to the Trust and
the Designated Preferred Securities which are governed by Delaware law.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement and Prospectus and the documents incorporated therein by reference and
such counsel has no reason to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements and related schedules and
statistical data included therein or omitted therefrom or Underwriters'
Information, as to which such counsel need express no
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opinion), at the time the Registration Statement or any such amendment became
effective, 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 the light of the circumstances under which they were
made, not misleading or (B) that the Prospectus or any amendment or supplement
thereto and the documents incorporated therein by reference (except for the
financial statements and related schedules and statistical data included therein
or omitted therefrom or Underwriters' Information, as to which such counsel need
express no opinion), at the time the Registration Statement became effective
(or, if the term "Prospectus" refers to the prospectus first filed pursuant to
Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus was issued),
at the time any such amended or supplemented Prospectus was issued, at the
Closing Date and, if applicable, the Option Closing Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (C) that there is any amendment to the Registration Statement
required to be filed that has not already been filed.
(e) Xxxxxxxx, Xxxxxx & Xxxxxx, special Delaware counsel to the
Offerors, shall have furnished to you 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 created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act
and, under the Trust Agreement and the Delaware Business Trust Act, has
the trust power and authority to conduct its business as described in
the Prospectus.
(ii) The Trust has all requisite trust power to enter into and
perform its obligations under this Agreement. The Trust Agreement is a
legal, valid and binding agreement of the Company, as sponsor, and the
Trustees, and is enforceable against the Company, as sponsor, and the
Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business Trust
Act, this Agreement and its execution and delivery by the Trust, and
the performance by the Trust of its obligations thereunder, have been
authorized by all requisite trust action on the part of the Trust.
(iv) The issuance, sale and delivery of the Designated Preferred
Securities in accordance with the terms and conditions of the Trust
Agreement have been duly authorized by all necessary action of the
Trust. The Designated Preferred Securities have been duly and validly
authorized by the Trust Agreement, and when issued and sold in
accordance with the Trust Agreement, the Designated Preferred
Securities will be, subject to the qualifications set forth in
paragraph (v) below, fully paid and nonassessable beneficial interest
in the assets of the Trust and entitled to the benefits of the Trust
Agreement. The form of certificate to evidence the Designated Preferred
Securities has been approved by the Trust and is in due and proper form
and complies with all applicable requirements of the Delaware Business
Trust Act.
(v) Holders of Designated Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of
personal liability extended to shareholders of private, for-profit
corporations organized under the General Corporation Law of the State
of Delaware. Such opinion may note that the holders of Designated
Preferred Securities may be obligated to make payments as set forth in
the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is not
subject to preemptive rights. There are no
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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 equity securities of the Trust pursuant to the Trust
Agreement or other governing documents of the Trust or to such
counsel's knowledge, any agreement or other instrument to which the
Trust is a party or by which the Trust may be bound.
(vii) The issuance and sale by the Trust of the Designated
Preferred Securities and the Common Securities, the execution, delivery
and performance by the Trust of this Agreement, and the consummation of
the transactions contemplated by this Agreement, do not violate (a) the
Trust Agreement, or (b) any applicable Delaware law, rule or
regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (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.
(f) Xxxxx, Xxxx & Xxxxxxxx, X.X., counsel for the Underwriters,
shall have furnished you their signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, with respect to the sufficiency of all
corporate procedures and other legal matters relating to this Agreement, the
validity of the Designated Preferred Securities, the Registration Statement, the
Prospectus and such other related matters as you may reasonably request and
there shall have been furnished to such counsel such documents and other
information as they may request to enable them to pass on such matters. In
giving such opinion, Xxxxx, Xxxx & Xxxxxxxx, X.X. may rely as to matters of fact
upon statements and certifications of officers of the Offerors and of other
appropriate persons and may rely as to matters of law, other than law of the
United States and the State of Missouri, and upon the opinions of Xxxxx, Xxxxx,
Xxxxxxx and Xxxxx LLP and Xxxxxxxx, Xxxxxx & Xxxxxx described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from Ernst & Young LLP a letter, dated the date of this Agreement and the
Closing Date (and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Representatives, confirming that they are
independent public accountants with respect to the Company and the Subsidiaries,
within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in
effect that:
(i) In their opinion, the consolidated financial statements of
the Company audited by them and included or incorporated by reference
in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act,
the 1934 Act, the 1933 Act Regulations and the 1934 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other
inquiries and procedures as may be specified in such letter, which
procedures do not constitute an audit in accordance with U.S. generally
accepted auditing standards, nothing came to their attention that
caused them to believe that, if applicable, the unaudited interim
consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement do not comply
as to form in all material respects with the applicable accounting
requirements of the 1933 Act, the 1934 Act, the 1933 Act Regulations
and the 1934
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Act Regulations or are not in conformity with U.S. generally accepted
accounting principles applied on a basis substantially consistent,
except as noted in the Registration Statement, with the basis for the
audited consolidated financial statements of the Company included in
the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements
and other information referred to below, a reading of the latest
available unaudited condensed consolidated financial statements of the
Company, inspection of the minute books of the Company since the date
of the latest audited financial statements of the Company included or
incorporated by reference in the Registration Statement, inquiries of
officials of the Company responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them to
believe that:
(A) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock of the Company, any increase in the
consolidated debt of the Company or any decreases in consolidated total
assets or consolidated shareholders' equity of the Company, or any
changes, decreases or increases in other items specified by the
Representatives, in each case as compared with amounts shown in the
latest unaudited interim consolidated statement of financial condition
of the Company included or incorporated by reference in the
Registration Statement except in each case for changes, increases or
decreases which the Registration Statement specifically discloses have
occurred or may occur or which are described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement to the
specified date referred to in clause (iii)(A), there were any decreases
in the consolidated interest income, net interest income or net income
of the Company or in the per share amount of net income of the Company,
or any changes, decreases or increases in other items specified by the
Representatives as compared with the comparable period of the preceding
year and with any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases which
the Registration Statement discloses have occurred or may occur, or
which are described in such letter.
(iv) In addition to the audit referred to in their report
included or incorporated by reference in the Registration Statement and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (ii) and (iii) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with U.S. generally accepted auditing standards, with
respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records and consolidated financial statements of the Company
which appear in the Registration Statement and the documents
incorporated by reference therein specified by the Representatives, and
have compared such amounts, percentages and financial information with
the accounting records and the material derived from such records and
consolidated financial statements of the Company have found them to be
in agreement.
In the event that the letter to be delivered on the date hereof, on the
Closing Date (and, if applicable, any Option Closing Date) referred to above set
forth any such changes, decreases or increases as specified in clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in clause
(iv) above, it shall be a further condition to the obligations of the
Underwriters that the
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Representatives shall have determined, after discussions with officers of the
Company responsible for financial and accounting matters, that such changes,
decreases, increases or exceptions as are set forth in such letters do not (x)
reflect a material adverse change in the items specified in clause (iii)(A)
above as compared with the amounts shown in the latest unaudited consolidated
statement of financial condition of the Company included or incorporated by
reference in the Registration Statement, (y) reflect a material adverse change
in the items specified in clause (iii)(B) above as compared with the
corresponding periods of the prior year or other period specified by the
Representatives, or (z) reflect a material adverse change in items specified in
clause (iv) above from the amounts shown in the Preliminary Prospectus
distributed by the Underwriters in connection with the offering contemplated
hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the chief executive officer and the
chief financial and accounting officer of the Company, which certificates shall
be deemed to be made on behalf of the Company, dated as of the Closing Date and,
if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2(a) hereof are accurate as of
the Closing Date and, if applicable, the Option Closing Date, and that each of
the Offerors has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to such Closing Date and, if
applicable, the Option Closing Date; (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material adverse change in the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis; (iii) since such dates there has
not been any material transaction entered into by the Offerors or the
Subsidiaries other than transactions in the ordinary course of business; and
(iv) they have carefully examined the Registration Statement and the Prospectus
as amended or supplemented and nothing has come to their attention that would
lead them to believe that either the Registration Statement or the Prospectus,
or any amendment or supplement thereto as of their respective effective or issue
dates, contained, and the Prospectus as amended or supplemented at such Closing
Date (and, if applicable, the Option Closing Date), contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and (v)
covering such other matters as you may reasonably request. The officers'
certificate of the Company shall further state that no stop order affecting the
Registration Statement is in effect or, to their knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received a certificate of an authorized representative of the
Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this 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 described in the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise) of the Trust.
(j) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(k) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the Underwriters'
participation in such offering.
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(l) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the Underwriters' obligations hereunder may be terminated by you on notice to
the Company at, or at any time before, the Closing Date or the Option Closing
Date, as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each of its directors, officers and agents, and each
person, if any, who controls any Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorneys fees and expenses), joint or
several, arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact made by the Company or the Trust contained in
Section 2 of this Agreement (or any certificate delivered by the Company or the
Trust pursuant to Sections 6(h), 6(i) and 6(l) hereto) or in the registration
statement as originally filed or the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment or supplement thereto, (ii)
any omission or alleged omission to state a material fact in the registration
statement as originally filed or the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment or supplement thereto,
required to be stated therein or necessary to make the statements therein not
misleading, and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and attorneys fees), joint
or several, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus or the
Prospectus, or in any amendment or supplement thereto, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
(iii) the enforcement of this indemnification provision or the contribution
provisions of Section 7(d); and shall reimburse each such indemnified party for
any reasonable legal or other expenses as incurred, but in no event less
frequently than 30 days after each invoice is submitted, incurred by them in
connection with investigating or defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded;
provided, however, that the Offerors shall not be liable in any such case to the
extent, but only to the extent, that any such losses, claims, damages,
liabilities and expenses arise out of or are based upon any untrue statement or
omission or allegation thereof that has been made therein or omitted therefrom
in reliance upon and in conformity with the Underwriters' Information provided,
that the indemnification contained in this paragraph with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or of
any person controlling any Underwriter) to the extent any such losses, claims,
damages, liabilities or expenses directly results from the fact that such
Underwriter sold Designated Preferred Securities to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus (as amended or supplemented if any amendments or supplements
thereto shall have been furnished to you in sufficient time to distribute same
with or prior to the written confirmation of the sale involved), if required by
law, and if such loss,
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claim, damage, liability or expense would not have arisen but for the failure to
give or send such person such document. The foregoing indemnity agreement is in
addition to any liability the Company or the Trust may otherwise have to any
such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each Offeror, each of the Company's directors, each of the
Company's officers who signed the Registration Statement, each of the
Administrative Trustees of the Trust and each person, if any, who controls an
Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters' Information. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to any
such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified party and controlling persons, which firm shall be designated
in writing by the indemnified party (and, if such indemnified parties are
Underwriters, by you, as Representatives). Each indemnified party and each
controlling person, as a condition of such indemnity, shall use reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. The indemnifying party shall not be liable for any settlement
of any such action effected without its written consent, but if there shall be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party
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and each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated 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 Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriters 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls an Offeror within
the meaning of the 1933 Act, each officer and trustee of an Offeror who shall
have signed the Registration Statement and each director of an Offeror shall
have the same rights to contribution as the Offerors subject in each case to the
preceding sentence. The obligations of the Offerors under this paragraph (d)
shall be in addition to any liability which the Offerors may otherwise have and
the obligations of the Underwriters under this paragraph (d) shall be in
addition to any liability that the Underwriters may otherwise have.
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(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Offerors set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter or any person
controlling an Underwriter or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror), (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. TERMINATION.
-----------
You shall have the right to terminate this Agreement at any time at or
prior to the Closing Date or, with respect to the Underwriters' obligation to
purchase the Option Preferred Securities, at any time at or prior to the Option
Closing Date, without liability on the part of the Underwriters to the Offerors,
if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree which in the judgment of the
Representatives materially impairs the investment quality of the Designated
Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(d) There has occurred any outbreak of hostilities or other calamity
or crisis or material change in general economic, political or financial
conditions, or internal conditions, the effect of which on the financial markets
of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Designated Preferred Securities or enforce contracts
for the sale of the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority; or
(f) A banking moratorium shall have been declared by either federal
or Ohio authorities; or
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(g) Any action shall have been taken by any government in respect of
its monetary affairs which, your reasonable judgment, has a material adverse
effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. DEFAULT OF UNDERWRITERS.
------------------------
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that the non-defaulting Underwriters shall be under no
obligation to purchase such Designated Preferred Securities if the aggregate
number of Designated Preferred Securities to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments set
forth in Schedule I hereto, and provided further, that no non-defaulting
Underwriter shall be obligated to purchase Designated Preferred Securities to
the extent that the number of such Designated Preferred Securities is more than
110% of such Underwriter's underwriting commitment set forth in Schedule I
hereto.
In the event that the non-defaulting Underwriters are not obligated
under the above paragraph to purchase the Designated Preferred Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company do not arrange for
the purchase of any Designated Preferred Securities to which a default relates
as provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
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10. EFFECTIVE DATE OF AGREEMENT.
----------------------------
If the Registration Statement is not effective at the time of execution
of this Agreement, this Agreement shall become effective on the Effective Date
at the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Offerors, by notifying you or by you, as Representatives of
the several Underwriters, by notifying either Offeror, except that the
provisions of Sections 5 and 7 shall at all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
---------------------------------------------------------------
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters or any termination or cancellation of this Agreement and
shall survive delivery of and payment for the Designated Preferred Securities.
12. NOTICES.
--------
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of telecommunication and
confirmed. Notices to Offerors shall be sent to 000 Xxxx Xxxxxx, X.X., Xxxxxx,
Xxxx 00000, Attention: Xxxxxxxxxxx Xxxxxxx (with a copy to Vorys, Xxxxx, Xxxxxxx
and Xxxxx LLP, 00 Xxxx Xxx Xxxxxx, X.X. Box 1008, Columbus, Ohio 43216,
Attention: Xxxxxxx X. XxXxxxxx, Esq.) and notices to the Underwriters shall be
sent to Xxxxxx, Xxxxxxxx & Company, Incorporated, 000 Xxxxx Xxxxxxxx, 0xx Xxxxx,
Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx (with a copy to Xxxxx, Xxxx
& Xxxxxxxx, X.X., 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxx, Esq.). In all dealings with the Company under this
Agreement, Xxxxxx, Xxxxxxxx & Company, Incorporated shall act as representative
of and on behalf of the several Underwriters, and the Company shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
the Underwriters, made or given by Xxxxxx, Xxxxxxxx & Company, Incorporated on
behalf of the Underwriters, as if the same shall have been made or given in
writing by the Underwriters.
13. PARTIES.
--------
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person controlling the Offerors or the
Underwriters, and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns"
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shall not include any purchaser, in his status as such purchaser, from the
Underwriters of the Designated Preferred Securities.
14. GOVERNING LAW.
--------------
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. AUTHORITY.
---------
Any certificate signed by an authorized officer of the Company or the
Trust and delivered to the Representatives or to counsel for the Underwriters
pursuant to this Agreement shall be deemed a representation and warranty by the
Company and the Trust to the Underwriters as to the matters covered thereby.
16. COUNTERPARTS.
-------------
This Agreement may be executed by facsimile and in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
signatures appear on the next page
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If the foregoing is in accordance with the your understanding
of our agreement, please sign and return to us a counterpart hereof, whereupon
this shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
SECOND BANCORP INCORPORATED
By:
------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
SECOND BANCORP CAPITAL TRUST I
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
CONFIRMED AND ACCEPTED,
as of [_______________], 2001
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
For itself and as co-Representative of the several
Underwriters named in Schedule I hereto.
SANDLER X'XXXXX & PARTNERS, L.P.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
For itself and as co-Representative of the several
Underwriters named in Schedule I hereto.
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SCHEDULE I
----------
UNDERWRITER NUMBER OF SECURITIES
Xxxxxx, Xxxxxxxx & Company, Incorporated. ..........
Xxxxxxx X'Xxxxx & Partners, L.P.....................
Total...............................................
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EXHIBIT A
---------
LIST OF SUBSIDIARIES
The Second National Bank of Xxxxxx
Second National Loan Servicing Company
Second Bancorp Capital Trust I
Second Merger Corp.
