EXHIBIT 1.1
$150,000,000
% Convertible Trust Preferred Securities
UNDERWRITING AGREEMENT
June [ ], 1998
UNDERWRITING AGREEMENT
June [__], 0000
XXX XXXXXXX DILLON READ INC.
CIBC OPPENHEIMER CORP.
as Managing Underwriters
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
CNB Capital Trust I (the "Trust"), a statutory business trust created
under the Business Trust Act (the "Delaware Act") of the State of Delaware, and
CNB Bancshares, Inc., a corporation organized under the laws of the State of
Indiana (the "Company"), propose to sell to you and the other underwriters named
in Schedule A to this Agreement (the "Underwriters"), for whom you are acting as
managing underwriters (the "Managing Underwriters"), an aggregate of 6,000,000
shares of its [ ]% Shared Preference Redeemable Securities (liquidation amount
$25.00 per Share Preference Redeemable Security) (the "Firm Capital
Securities"). In addition, the Trust and the Company propose to grant to the
Underwriters an option to purchase up to an additional 900,000 Capital
Securities on the terms and for the purposes set forth in Section 1 (the "Option
Capital Securities"). The Firm Capital Securities and the Option Capital
Securities, if purchased, are hereinafter collectively called the "Capital
Securities."
The Capital Securities will be guaranteed by the Company with respect
to distributions and amounts payable upon liquidation or redemption of such
Capital Securities (the "Guarantee") pursuant to the Guarantee Agreement (the
"Guarantee Agreement"), to be entered into between the Company and The Bank of
New York, as trustee (the "Guarantee Trustee"), for the benefit of holders from
time to time of the Capital Securities. The Company will be the owner of all of
the beneficial ownership interests represented by the common securities (the
"Common Securities") of the Trust. Proceeds from the sale of Capital Securities
to the Underwriters and from the concurrent sale of Common Securities to the
Company will be used to purchase [ ]% Convertible Subordinated Debentures,
due [ ] (the "Debentures") of the Company. The Debentures will be
issued by the Company pursuant to an Indenture (the "Indenture"), to be entered
into between the Company and The Bank of New York, as trustee (the "Debenture
Trustee"). This Agreement, the Indenture, the Debentures, the Trust Agreement
(as defined in Section 3(h)) and the Guarantee Agreement are referred to
collectively as the "Operative Documents". Copies of the Operative Documents,
in substantially final form, have been delivered to each of the Underwriters.
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The Company and the Trust have filed, in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively called the "Act"), with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3,
including a prospectus relating to the Capital Securities and the shares (the
"Shares") of common stock, $1 stated value per share, of the Company (the
"Common Stock") issuable by the Company upon conversion of the Capital
Securities and the Debentures, which incorporates by reference documents which
the Company has filed or will file in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively called the "Exchange Act"). The Company and the Trust
have furnished to you, for use by the Underwriters and by dealers, copies of one
or more preliminary prospectuses and the documents incorporated by reference
therein (each thereof, including the documents incorporated therein by
reference, being herein called a "Preliminary Prospectus") relating to the
Capital Securities and the Shares. Except where the context otherwise requires,
the registration statement, as amended when it becomes effective, including all
documents filed as a part thereof or incorporated by reference therein, and
including information (if any) contained in a prospectus subsequently filed with
the Commission pursuant to Rule 424(b) under the Act and deemed to be a part of
the registration statement at the time of effectiveness pursuant to Rule 430(A)
under the Act, is herein called the "Registration Statement", and the
prospectus, including all documents incorporated therein by reference, in the
form filed by the Company and the Trust with the Commission pursuant to Rule
424(b) under the Act or, if no such filing is required, the form of final
prospectus included in the Registration Statement at the time it became
effective, is herein called the "Prospectus".
The Trust, the Company and the Underwriters agree as follows:
1. Sale and Purchase: Upon the basis of the warranties and
representations and the other terms and conditions herein set forth, the Trust
and the Company agree to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase, the respective
number of Capital Securities set forth opposite the name of such Underwriter in
Schedule A attached hereto.
In addition, the Trust and the Company grant to the Underwriters an
option to purchase up to 900,000 Option Capital Securities. Such option is
granted solely for the purpose of covering over-allotments in the sale of
Capital Securities and is exercisable as provided in Section 2 hereof. Option
Capital Securities shall be purchased severally for the account of the
Underwriters in proportion to the number of Firm Capital Securities set opposite
the name of such Underwriters in Schedule A hereto. The respective purchase
obligations of each Underwriter with respect to the Option Capital Securities
shall be
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adjusted by you so that no Underwriter shall be obligated to purchase Option
Capital Securities other than in integral multiples of 100.
The price of both the Firm Capital Securities and any Option Capital
Securities shall be 100% of the aggregate liquidation amount thereof, plus
accrued distributions, if any, from June [ ], 1998 to the Delivery Date (as
defined in Section 2 hereof).
As compensation to the Underwriters for their commitment hereunder,
the Company will, on the applicable Delivery Date pay to you, for the accounts
of the several Underwriters, an amount equal to ___% of the aggregate
liquidation amount of the Capital Securities to be delivered by the Company and
the Trust hereunder on such Delivery Date.
The Trust and the Company are advised by you that the Underwriters
intend (i) to make a public offering of their respective portions of the Capital
Securities as soon after the effective date of the Registration Statement as in
your judgment is advisable and (ii) initially to offer the Capital Securities
upon the terms set forth in the Prospectus.
2. Payment and Delivery: Delivery of and payment for the Capital
Securities shall be made at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., New York City time, on the
third full business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between you, the Trust and the
Company. This date and time are sometimes referred to as the "First Delivery
Date". On the First Delivery Date, the Trust shall deliver or cause to be
delivered to you for the account of each Underwriter against payment to or upon
the order of the Trust of the purchase price in Federal or other funds
immediately available in New York City, the Capital Securities in the form of
one or more permanent global securities in definitive form (the "Global
Securities") deposited with the Property Trustee 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 through DTC. Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder.
At any time on or before the thirtieth day after the date of this
Agreement the option granted in Section 1 may be exercised by written notice
being given by you to the Company. Such notice shall set forth the aggregate
number of Option Capital Securities as to which the option is being exercised
and the date and time when the Option Capital Securities are to be delivered;
provided, however, that this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the fifth business day
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after the date on which the option shall have been exercised. The date and time
the Option Capital Securities are delivered are sometimes referred to as the
"Second Delivery Date" and the First Delivery Date and the Second Delivery Date
are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Capital Securities shall be
made at the place specified in the first sentence of the first paragraph of this
Section 2 (or at such other place as shall be determined by agreement between
you and the Company on behalf of the Trust) at 10:00 A.M., New York City time,
on the Second Delivery Date. On the Second Delivery Date, the Trust shall
deliver or cause to be delivered the Option Capital Securities to you for the
account of each Underwriter against payment to or upon the order of the Trust of
the purchase price by wire transfer of immediately available funds to such
account as the Company shall specify on behalf of the Trust. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Option Capital Securities shall be in the form of
one or more global Option Capital Securities registered in the name of Cede &
Co., as nominee of DTC.
On each Delivery Date, the Company will pay, or cause to be paid, the
commission payable on such Delivery Date to the Underwriters under the
penultimate paragraph of Section 1 by wire transfer in immediately available
funds to such account as the Representatives shall specify.
3. Representations and Warranties of the Trust and the Company: The
Trust and the Company, jointly and severally, represent and warrant to each of
the Underwriters that:
(a) On the date the Registration Statement became effective (the
"Effective Date") the Registration Statement complied, and on the date of
the Prospectus, on the date any post-effective amendment to the
Registration Statement shall become effective, on the date any supplement
or amendment to the Prospectus is filed with the Commission and at the
Delivery Date, the Registration Statement and the Prospectus (and any
amendment thereof or supplement thereto) will comply, in all material
respects, with the applicable provisions of the Act and the Exchange Act.
The Registration Statement did not, as of the Effective Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and on the other dates referred to above, neither
the Registration Statement nor the Prospectus, nor any amendment thereof or
supplement thereto, will contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
in order to make the statements
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therein not misleading. When any Preliminary Prospectus was first filed
with the Commission (whether filed as part of the Registration Statement or
any amendment thereto or pursuant to Rule 424(a) of the Act) and when any
amendment thereof or supplement thereto was first filed with the
Commission, such Preliminary Prospectus as amended or supplemented complied
in all material respects with the applicable provisions of the Act and did
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; provided, however, that the Company
and the Trust make no warranty or representation with respect to any
statement contained in the Registration Statement or the Prospectus in
reliance upon and in conformity with information concerning the
Underwriters and furnished in writing by or on behalf of any Underwriter
through you to the Company expressly for use in the Registration Statement
or the Prospectus.
(b) The documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act,
and none of such documents, when read together with the other information
in the Prospectus, at the time the Registration Statement became effective
and at the Delivery Date, 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 made therein not misleading.
(c) As of the date of this Agreement, the Company has an authorized
capitalization as set forth under the heading entitled "Actual" in the
section of the Registration Statement and the Prospectus entitled
"Capitalization" and, as of the Delivery Date the Company shall have an
authorized capitalization as set forth under the heading entitled "As
Adjusted" in the section of the Registration Statement and the Prospectus
entitled "Capitalization"; all of the issued and outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; the Company is duly
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended (the BHC Act); the Company has been duly incorporated and
is validly existing as a corporation under the laws of the State of
Indiana, with full power and authority to own its properties and conduct
its business as described in the Registration Statement and the Prospectus,
to execute and deliver the relevant Operative Documents and to issue and
sell the Debentures and to issue Shares upon conversion of the Capital
Securities as herein contemplated.
(d) The Company and each of its subsidiaries (the "Subsidiaries") are
duly qualified or licensed by in each jurisdiction in which they conduct
their
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respective businesses and in which the failure, individually or in the
aggregate, to be so licensed or qualified could have a material adverse
effect on the operations, business or condition of the Company and its
Subsidiaries, taken as a whole; and the Company and each of its
Subsidiaries are in compliance in all material respects with the laws,
orders, rules, regulations and directives issued or administered by such
jurisdictions;
(e) The deposit accounts of the Company's bank and savings association
subsidiaries are insured by the Bank Insurance Fund of the Federal Deposit
Insurance Corporation ("FDIC") or the Savings Association Insurance Fund of
the FDIC to the fullest extent permitted by law and the rules and
regulations of the FDIC, and no proceedings for the termination of such
insurance are pending or threatened.
(f) Neither the Company nor any of its Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of
time, or both would constitute a breach of, or default under), (i) its
respective charter or by-laws or (ii) in the performance or observance of
any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which any of them is bound (except, in the case of clause
(ii), where such breach or default does not have a material adverse effect
on the operations, business or condition of the Company and its
Subsidiaries, taken as a whole), and the execution, delivery and
performance of the Operative Documents by the Company and the Trust and the
issuance of the Capital Securities, the Debentures and the Shares and
consummation of the transactions contemplated hereby and thereby will not
conflict with, or result in any breach of or constitute a default under
(nor constitute any event which with notice, lapse of time, or both would
constitute a breach of, or default under), any provisions of the charter or
by-laws of the Company or any of its Subsidiaries or under any provision of
any license, indenture, mortgage, deed of trust, bank loan or credit
agreement or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order applicable
to the Company or any of its Subsidiaries.
(g) The Capital Securities and the Common Securities have been duly
and validly authorized and, when issued and delivered against payment
therefor as provided herein and in the Prospectus, will be duly and validly
issued, fully paid and non-assessable; and the Capital Securities and the
Common Securities, when issued and delivered, will conform in all material
respects to the descriptions
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thereof contained in the Prospectus; the Shares initially issuable upon
conversion of the Capital Securities have been duly authorized and validly
reserved for issuance upon conversion of the Capital Securities and are
free of statutory and contractual preemptive rights and are sufficient in
number to meet current conversion requirements, and such Shares, when so
issued upon such conversion in accordance with the terms of the Indenture
and Trust Agreement, will be duly and validly issued and fully paid and
nonassessable, with no personal liability attaching to the ownership
thereof.
(h) The Indenture has been duly authorized, and when duly executed by
the proper officers of the Company (assuming due execution and delivery by
the Indenture Trustee) and delivered by the Company will constitute a valid
and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the
Debentures have been duly authorized and, when duly executed,
authenticated, issued and delivered as contemplated in the Indenture, will
constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Debentures, when issued and delivered,
will conform in all material respects to the description thereof contained
in the Prospectus.
(i) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Act with the
trust power and authority to own property and conduct its business as
described in the Prospectus, and has conducted and will conduct no business
other than the transactions contemplated by this Agreement as described in
the Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Amended and Restated Trust
Agreement (the " Trust Agreement") among the Company, The Bank of New York,
as property trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee") and the
individuals named therein as the Administrative Trustees (the
"Administrative Trustees", and together with the Property Trustee and the
Delaware Trustees, the "Trustees"), and the agreements and instruments
contemplated by the Trust Agreement and described in the Prospectus; the
Trust has no liabilities or
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obligations other than those arising out of the transactions contemplated
by this Agreement and the agreements and instruments contemplated by the
Trust Agreement and described in the Prospectus; and the Trust is not a
party to or subject to any action, suit or proceeding of any nature.
(j) The Trust Agreement has been duly authorized by the Company and,
when duly executed and delivered by the Company and the Trustees, will be a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting the rights of creditors generally,
general equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing, and will
conform in all material respects to the description thereof contained in
the Prospectus. Each of the Administrative Trustees is an employee of the
Company and has been duly authorized by the Company to serve in such
capacity and to execute and deliver the Trust Agreement.
(k) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the proper officers of the Company and the
Guarantee Trustee, will constitute a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Guarantee Agreement, when executed and
delivered, will conform in all material respects to the description thereof
contained in the Prospectus.
(l) This Agreement has been duly authorized, executed and delivered by
each of the Company and the Trust.
(m) The capital stock of the Company, including the Shares, conform in
all material respects to the description thereof contained in the
Registration Statement and Prospectus.
(n) No approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the execution,
delivery and performance by the Company and the Trust of the Operative
Documents or the issuance and sale of the Capital Securities and the Shares
as contemplated hereby other than as may be required under the Act and the
Exchange Act and any
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necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Capital Securities and the Shares are
being offered by the Underwriters.
(o) KPMG Peat Marwick LLP, whose reports on the consolidated financial
statements of the Company and its Subsidiaries are filed with the
Commission as part of the Registration Statement and Prospectus, are
independent public accountants as required by the Act and the applicable
published rules and regulations thereunder;
(p) Each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state, local or foreign law, regulation
or rule, and has obtained all necessary authorizations, consents and
approvals from other persons, in order to conduct its respective business;
neither the Company nor any of its Subsidiaries is in violation of, or in
default under, any such license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any decree,
order or judgment applicable to the Company or any of its Subsidiaries the
effect of which could have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
(q) All legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have
been so described or filed as required.
(r) There are no actions, suits or proceedings pending or threatened
against the Company or any of its Subsidiaries or any of their respective
properties, at law or in equity, or before or by any federal, state, local
or foreign governmental or regulatory commission, board, body, authority or
agency which could result in a judgment, decree or order having a material
adverse effect on the business, condition, prospects or property of the
Company and its Subsidiaries taken as a whole.
(s) The audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its Subsidiaries as of the dates indicated and
the consolidated results of operations and changes in financial position of
the Company and its Subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved.
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(t) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not
been (A) any material and unfavorable change, financial or otherwise, in
the business, properties, prospects, regulatory environment, results of
operations or condition (financial or otherwise), present or prospective,
of the Company and its Subsidiaries taken as a whole, (B) any transaction,
which is material to the Company and its Subsidiaries taken as a whole,
contemplated or entered into by the Company or either of its Subsidiaries
or (C) any obligation, contingent or otherwise, directly or indirectly,
incurred by the Company or any of its Subsidiaries which is material to the
Company and its Subsidiaries taken as a whole.
4. Certain Covenants of the Trust and the Company: The Trust and
the Company hereby agree:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Capital Securities and the Shares for offering
and sale under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect as long as required
for the distribution of the Capital Securities and the Shares, provided
that the Trust and the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the laws
of any such state (except service of process with respect to the offering
and sale of the Capital Securities and the Shares); and to promptly advise
you of the receipt by the Trust or the Company of any notification with
respect to the suspension of the qualification of the Capital Securities or
the Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(b) to make available to you in New York City, not later than 10:00
A.M. New York City time on the day following the execution and delivery of
this Agreement, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company or the Trust shall have made any
amendments or supplements thereto after the effective date of the
Registration Statement) as the Underwriters may request for the purposes
contemplated by the Act;
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when the Registration Statement has become effective
and when any post effective amendment thereto becomes effective and (ii) if
Rule 430A under the Act is used, when the Prospectus is filed with the
Commission pursuant to Rule 424(b) under the Act (which the Company and the
Trust agree to file not
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later than 10:00 A.M. New York City time on the day following the execution
and delivery of this Agreement);
(d) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement or Prospectus or for additional information with respect thereto,
or of notice of institution of proceedings for, or the entry of a stop
order suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of
the Registration Statement, to make every reasonable effort to obtain the
lifting or removal of such order as soon as possible; to advise you
promptly of any proposal to amend or supplement the Registration Statement
or Prospectus including by filing any documents that would be incorporated
therein by reference and to file no such amendment or supplement to which
you shall object in writing;
(e) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement (i)
copies of any reports or other communications which the Company shall send
to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports filed
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form
as may be designated by the Commission, and (iii) such other information as
you may reasonably request regarding the Company or its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event
known to the Company or the Trust within the time during which a prospectus
relating to the Capital Securities and the Shares is required to be
delivered under the Act which, in the judgment of the Company, would
require the making of any change in the Prospectus then being used, or in
the information incorporated therein by reference, so that the Prospectus
would not include 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 are made, not misleading, and, during such
time, to prepare and furnish, at the Company's expense, to the Underwriters
promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change and to furnish to you a copy of such
proposed amendment or supplement before filing any such amendment or
supplement with the Commission;
(g) to make generally available to its security holders in the manner
contemplated by Rule 158 under the Act, and to deliver to you, an earnings
statement of the Company (which will satisfy the provisions of Section
11(a) of the
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Act) covering a period of twelve months beginning after the effective date
of the Registration Statement, as soon as is reasonably practicable after
the termination of such twelve-month period;
(h) to furnish to you three signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto and documents incorporated by
reference therein) and sufficient conformed copies of the foregoing (other
than exhibits) for distribution of a copy to each of the other
Underwriters;
(i) to furnish to you as early as practicable prior to the time of
purchase, but no later than two business days prior thereto, a copy of the
latest available unaudited interim consolidated financial statements, if
any, of the Company and its Subsidiaries which have been read by the
Company's independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 6(b) of this Agreement;
(j) to apply the net proceeds from the sale of the Capital Securities
and Debentures in the manner set forth under the caption "Use of Proceeds"
in the Prospectus;
(k) to pay all expenses, fees and taxes (other than any transfer taxes
and fees and disbursements of counsel for the Underwriters except as set
forth under Section 5 hereof and (iii) and (iv) below) in connection with
(i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment),
(ii) the preparation, issuance, execution, authentication and delivery of
the Capital Securities, Debentures and the Shares, (iii) the word
processing and/or printing of this Agreement, any and Powers of Attorney,
the Operative Documents, and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (iv) the qualification of the
Capital Securities and the Shares for offering and sale under state laws
and the determination of their eligibility for investment under state law
as aforesaid (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to
the Underwriters and to dealers, (v) any listing of the Capital Securities
and the Shares on any securities exchange or qualification for quotation in
NASDAQ and any registration thereof under the Exchange Act, (vi) any fees
payable to investment rating agencies with respect to the Capital
Securities, (vii) any filing for review of the public offering of
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the Capital Securities and the Shares by the National Association of
Securities Dealers, Inc. and (viii) the performance of the Trust and the
Company's other obligations hereunder;
(l) to furnish to you, before filing with the Commission subsequent to
the Effective Date and during the period referred to in paragraph (f)
above, a copy of any document proposed to be filed pursuant to Sections 13,
14 or 15(d) of the Exchange Act;
(m) (i) not to sell, contract to sell, grant any option to sell or
otherwise dispose of, directly or indirectly, any additional securities of
the Trust or the Company substantially similar to the Capital Securities or
securities convertible into or exchangeable for similar securities or
warrants or other rights to purchase similar securities or permit the
registration under the Act of any similar securities, except for the
registration of the Capital Securities and the Shares and the sales to the
Underwriters pursuant to this Agreement, for a period of 90 days after the
date hereof, without the prior written consent of the Managing
Underwriters; and (ii) not to sell, contract to sell, grant any option to
sell or otherwise dispose of, directly or indirectly, any shares of Common
Stock or securities convertible into or exchangeable for Common Stock or
warrants or other rights to purchase Common Stock or permit the
registration under the Act of any shares of Common Stock, except for the
registration of the Capital Securities and the Shares and the sales to the
Underwriters pursuant to this Agreement and except for issuances of Common
Stock upon the exercise of outstanding options, warrants and debentures,
for a period of 90 days after the date hereof, without the prior written
consent of the Managing Underwriters;
(n) to use its best efforts to cause the Capital Securities and the
Shares to be listed on the New York Stock Exchange; and
(o) at any time that the number of authorized but unissued shares of
Common Stock (or shares of Common Stock held in treasury and available for
such purpose) shall be less than the aggregate number of shares of Common
Stock into which the Capital Securities then outstanding shall be
convertible, to take such action as is necessary to increase the number of
shares which the Company is authorized to issue so that the Company will
have a sufficient number of shares of Common Stock available for conversion
of the Capital Securities then outstanding.
5. Reimbursement of Underwriters' Expenses: If the Capital
Securities are not delivered for any reason other than the termination of this
Agreement pursuant to the first two paragraphs of Section 8 hereof or the
default by one or more of the
-14-
Underwriters in its or their respective obligations hereunder, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations: The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Trust and the Company on the date hereof and
on each Delivery Date, the performance by the Trust and the Company of their
obligations hereunder and to the following conditions:
(a) The Trust and the Company shall furnish to you an opinion of
Xxxxx, Xxxx and Fingersh, counsel for the Company, addressed to the
Underwriters and dated the time of purchase with reproduced copies thereof
for each of the other Underwriters, dated the Delivery Date and in form
satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters,
stating that:
(i) the Company is duly registered as a bank holding company under the
BHC Act and the Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Indiana, with
full corporate power and authority to own its properties and conduct
its business as described in the Registration Statement and the
Prospectus and to issue, sell and deliver the Debentures and the
Shares as herein contemplated; each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its respective jurisdiction of incorporation with
full corporate power and authority to own its respective properties
and to conduct its respective business;
(ii) the Company and its Subsidiaries are duly qualified or licensed
by each jurisdiction in which they conduct their respective businesses
and in which the failure, individually or in the aggregate, to be so
licensed or qualified could have a material adverse effect on the
operations, business or condition of the Company and its Subsidiaries
taken as a whole, and the Company and its Subsidiaries are duly
qualified, and are in good standing, in each jurisdiction in which
they own or lease real property or maintain an office and in which
such qualification is necessary;
(iii) this Agreement has been duly authorized, executed and delivered
by the Company and duly executed and delivered by the Trust;
(iv) the Trust Agreement has been duly authorized, executed and
delivered by the Company and duly executed and delivered by the Trust;
-15-
(v) the Indenture has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery
thereof by the Indenture Trustee) constitutes a valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; and
the Debentures have been duly authorized, executed, issued and
delivered by the Company as contemplated in the Indenture and
(assuming due authentication by the Indenture Trustee) constitute
valid and binding obligations of the Company entitled to the benefits
of the Indenture and enforceable in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing;
(vi) the Guarantee Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Guarantee Trustee, constitutes a valid and legally
binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing;
(vii) the Shares initially issuable upon conversion of the Capital
Securities and the Debentures have been duly authorized and validly
reserved for issuance upon conversion of the Capital Securities and
the Debentures and are free of statutory and contractual preemptive
rights and are sufficient in number to meet current conversion
requirements, and such Shares, when so issued upon such conversion in
accordance with the terms of the Trust Agreement and the Indenture,
will be duly and validly issued and fully paid and nonassessable, with
no personal liability attaching to the ownership thereof;
(viii) the statements contained in the Prospectus under the caption
"Certain United States Federal Income Tax Consequences" are accurate
in all
-16-
material respects and constitute a fair summary of the matters set
forth therein;
(ix) the Capital Securities, the Common Stock, including the Shares
and the Debentures conform in all material respects to the
descriptions thereof contained in the Registration Statement and
Prospectus;
(x) the statements in the Prospectus under the captions "Description
of Capital Securities," "Description of Convertible Subordinated
Debentures," "Description of Guarantee," and "Relationship Among
Capital Securities, Subordinated Debentures and Guarantee," insofar as
such statements constitute a summary of documents referred to therein
or matters of law, are fair summaries in all material respects and
accurately present the information called for with respect to such
documents and matters.
(xi) neither the Trust nor the Company nor any subsidiary of the
Company is required to register as an investment company under the
Investment Company Act as a result of the transactions contemplated by
the Operative Documents;
(xii) the Company has an authorized capitalization as set forth in
the Registration Statement and the Prospectus; the outstanding shares
of capital stock of the Company have been duly and validly authorized
and issued and are fully paid, non-assessable and free of statutory
and contractual preemptive rights;
(xiii) the Registration Statement and the Prospectus (except as to
the financial statements and other financial and statistical data
contained or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act;
(xiv) the Registration Statement has become effective under the Act
and, to the best of such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under the
Act;
(xv) no approval, authorization, consent or order of or filing with
any national, state or local governmental or regulatory commission,
board, body, authority or agency is required in connection with the
execution, delivery and performance by the Company and the Trust of
the Operative Documents or issue or sale of the Capital Securities and
the Shares as contemplated
-17-
hereby other than as may be required under the Act and the Exchange
Act (except such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the
various jurisdictions in which the Capital Securities and the Shares
are being offered by the Underwriters);
(xvi) the execution, delivery and performance of the Operative
Documents and the issuance of the Capital Securities, Debentures and
the Shares and the consummation by the Company and the Trust of the
transactions contemplated hereby and thereby do not and will not
conflict with, or result in any breach of, or constitute a default
under (nor constitute any event which with notice, lapse of time, or
both would constitute a breach of or default under), any provisions of
the charter or bylaws of the Company or any of its Subsidiaries or
under any provision of any license, indenture, mortgage, deed of
trust, bank loan, credit agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which
any of them or their respective properties may be bound or affected,
or under any law, regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries;
(xvii) to the best of such counsel's knowledge, neither the Company
nor any of its Subsidiaries is in breach of, or in default under (nor
has any event occurred which with notice, lapse of time, or both would
constitute a breach of, or default under), any license, indenture,
mortgage, deed of trust, bank loan or credit agreement or any other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected or under any law, regulation or
rule or any decree, judgment or order applicable to the Company or any
of its Subsidiaries;
(xviii) to the best of such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a character
which are required to be filed as exhibits to the Registration
Statement or to be summarized or described in the Prospectus which
have not been so filed, summarized or described;
(xix) to the best of such counsel's knowledge, there are no actions,
suits or proceedings pending or threatened against the Company or any
of its Subsidiaries or any of their respective properties, at law or
in equity or before or by any commission, board, body, authority or
agency which are required to be described in the Prospectus but are
not so described;
-18-
(xx) the documents incorporated by reference in the Registration
Statement and Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed when such amendment was
filed), complied as to form in all material respects with the Exchange
Act (except as to the financial statements and other financial and
statistical data contained or incorporated by reference therein as to
which such counsel need express no opinion);
(xxi) the Indenture, the Guarantee and the Trust Agreement have each
been duly qualified under the Trust Indenture Act; and
(xxii) such counsel have participated in conferences with officers
and other representatives of the Company, representatives of the
independent public accountants of the Company and representatives of
the Underwriters at which the contents of the Registration Statement
and Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or Prospectus (except as and to the extent
stated in subparagraphs (vii), (viii), (xi) and (xi) above), on the
basis of the foregoing nothing has come to the attention of such
counsel that causes them to believe that the Registration Statement or
any amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that
the Prospectus or any supplement thereto at the date of such
Prospectus or such supplement, and at all times up to and including
the Delivery Date 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, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to
the financial statements and schedules and other financial and
statistical data included in the Registration Statement or
Prospectus).
(b) The Trust and the Company shall furnish to you an opinion of
Xxxxxxxx Xxxxxx & Finger, as special Delaware counsel to the Trust and the
Company, addressed to the Underwriters and dated the Delivery Date with
reproduced copies thereof for each of the other Underwriters and in form
satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters,
stating that:
-19-
(i) the Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, and all
filings required under the laws of the State of Delaware with respect
to the creation and valid existence of the Trust as a business trust
have been made;
(ii) under the Delaware Act and the Trust Agreement the Trust has
the trust power and authority to own its property and conduct its
business as set forth in the Trust Agreement;
(iii) the Trust Agreement constitutes a valid and binding
obligation of the Company and the Trustees, and is enforceable against
the Company and the Trustees in accordance with its terms, subject, as
to enforcement, to the effect upon the Trust Agreement of (i)
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent transfer and other similar laws relating to
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;
(iv) under the Delaware Act and the Trust Agreement, the Trust
has the trust power and authority (i) to execute and deliver, and to
perform its obligations under, the Operative Documents and (ii) to
issue and perform its obligations under the Capital Securities and the
Common Securities;
(v) under the Delaware Act and the Trust Agreement, the execution
and delivery by the Trust of this Agreement, and the performance by
the Trust of its obligations hereunder, have been duly authorized by
all necessary trust action on the part of the Trust;
(vi) the Capital Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust and are
entitled to the benefits of the Trust Agreement. The holders of the
Capital Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. Such counsel may
note that the holders of Capital Securities may be obligated, pursuant
to the Trust Agreement, (i) to provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from
transfers or exchanges
-20-
of certificates of Capital Securities and the issuance of replacement
certificates of Capital Securities, and (ii) to provide security or
indemnity in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust Agreement;
(vii) under the Delaware Act and the Trust Agreement, the
issuance of the Capital Securities is not subject to preemptive
rights;
(viii) the issuance and sale by the Trust of the Capital
Securities and Common Securities, the execution, delivery and
performance by the Trust of the Operative Documents, the consummation
by the Trust of the transactions contemplated hereby and compliance by
the Trust with its obligations hereunder, and the performance by the
Company, as depositor, of its obligations under the Trust Agreement
(A) do not violate (i) any of the provisions of the certificate of
trust of the Trust or the Trust Agreement or (ii) any applicable
Delaware law or administrative regulation (except that such counsel
need express no opinion with respect to the securities laws of the
State of Delaware) and (B) do not require any consent, approval,
license, authorization or validation of, or filing or registration
with, any Delaware legislative, administrative or regulatory body
under the laws or administrative regulations of the State of Delaware
(except that such counsel need express no opinion with respect to the
securities laws of the state of Delaware); and
(ix) assuming that the Trust derives no income from or in
connection with sources within the State of Delaware, is deemed to be
a grantor trust under the Internal Revenue Code of 1986, as amended,
and has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware, the holders
of the Capital Securities (other than those holders of Capital
Securities who reside or are domiciled in the State of Delaware) will
have no liability for income taxes imposed by the State of Delaware
solely as a result of their participation in the Trust, and the Trust
will not be liable for any income tax imposed by the State of
Delaware.
(c) You shall have received from KPMG Peat Marwick LLP, letters dated,
respectively, as of the date of this Agreement and the Delivery Date, as
the case may be, and addressed to the Underwriters (with reproduced copies
for each of the other Underwriters) in the forms heretofore approved by the
Managing Underwriters.
-21-
(d) You shall have received the opinion (addressed to the
Underwriters) of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters,
dated the Delivery Date, with respect to, as applicable, the incorporation
of the Company, the Registration Statement, the Prospectus (other than
financial statements and other financial and statistical data included
therein) and other related matters as the Managing Underwriters may
reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such
matters.
(e) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act, not later than 10:00 A.M. on the day
following the execution and delivery of this Agreement.
(f) Prior to the Delivery Date (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall 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; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(g) Between the time of execution of this Agreement and the Delivery
Date (i) no material and unfavorable change, financial or otherwise (other
than as referred to in the Registration Statement and Prospectus), in the
business, condition or prospects of the Company and its Subsidiaries taken
as a whole shall occur or become known and (ii) no transaction which is
material and unfavorable to the Company shall have been entered into by the
Company or any of its Subsidiaries.
(h) The Company will deliver to you a certificate, dated the Delivery
Date, of two of its executive officers to the effect that the
representations and warranties of the Company set forth in this Agreement
and the conditions set forth in paragraph (f) and paragraph (g) have been
met and are true and correct as of such date.
(i) You shall have received signed letters, dated the date of this
Agreement, from each of the directors and officers of the Company and
stockholders of the Company designated by you to the effect that such
persons shall
-22-
not sell, contract to sell, grant any option to sell or otherwise dispose
of, directly or indirectly, any shares of Common Stock of the Company or
securities convertible into or exchangeable for Common Stock or warrants or
other rights to purchase Common Stock for a period of 90 days after the
date of the Prospectus without the prior written consent of the Managing
Underwriters.
(j) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the Delivery Date as you
may reasonably request.
(k) The Company and the Trust shall perform such of their obligations
under this Agreement as are to be performed by the terms hereof at or
before the Delivery Date or before the Second Delivery Date, as the case
may be.
(l) The Capital Securities and the Shares shall have been approved for
listing on the New York Stock Exchange, subject only to notice of issuance
at or prior to the Delivery Date.
(m) Between the time of execution of this Agreement and the Delivery
Date, there shall not have occurred any downgrading, nor shall any notice
have been given of (i) any intended or potential downgrading or (ii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as that term is
defined in Rule 436(g) (2) promulgated under the Act.
7. Effective Date of Agreement; Termination: This Agreement shall
become effective when the parties hereto have executed and delivered this
Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Capital Securities if, since the time of execution of this Agreement
or the respective dates as of which information is given in the Registration
Statement and Prospectus, (a) there has been any material adverse and
unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the business, condition or prospects
of the Company and its Subsidiaries taken as a whole, which would, in your
reasonable professional judgment or in the reasonable professional judgment of
such group of Underwriters, make it impracticable to market the Capital
Securities, or (b) there shall have occurred any downgrading, or any notice
shall have been given of (i) any intended or
-23-
potential downgrading or (ii) any review or possible change that does not
indicate an improvement, in the rating accorded any securities of or guaranteed
by the Company by any "nationally recognized statistical rating organization",
as that term is defined in Rule 436(g)(2) promulgated under the Act or, if, at
any time prior to the Delivery Date trading in securities on the New York Stock
Exchange shall have been suspended or minimum prices shall have been established
on the New York Stock Exchange, or if a banking moratorium shall have been
declared either by the United States or New York State authorities, or if the
United States shall have declared war in accordance with its constitutional
processes or there shall have occurred any material outbreak or escalation of
hostilities or other national or international calamity or crisis of such
magnitude in its effect on the financial markets of the United States as, in
your reasonable professional judgment or in the reasonable professional judgment
of such group of Underwriters, to make it impracticable to market the Capital
Securities.
If you or any group of Underwriters elect to terminate this Agreement
as provided in this Section 7, the Company and each other Underwriter shall be
notified promptly by letter or telegram.
If the sale to the Underwriters of the Capital Securities, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement or if such sale is not carried out because
the Company or the Trust shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 4(k), 5 and 9 hereof), and
the Underwriters shall be under no obligation or liability to the Company or the
Trust under this Agreement (except to the extent provided in Section 9 hereof)
or to one another hereunder.
8. Increase in Underwriters' Commitments: If any Underwriter shall
default in its obligation to take up and pay for the Capital Securities to be
purchased by it hereunder and if the number of Capital Securities which all
Underwriters so defaulting shall have agreed but failed to take up and pay for
does not exceed 10% of the total number of Capital Securities, the non-
defaulting Underwriters shall take up and pay for (in addition to the number of
Capital Securities they are obligated to purchase pursuant to Section 1 hereof)
the number of Capital Securities agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Capital Securities shall be taken
up and paid for by such non-defaulting Underwriter or Underwriters in such
amount or amounts as you may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Capital Securities
shall be taken up and paid for by all non-defaulting Underwriters pro rata in
proportion to the number of Capital Securities set opposite the names of such
non-defaulting Underwriters in Schedule A.
-24-
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and the Trust agree with the non-defaulting Underwriters
that they will not sell any Capital Securities hereunder unless all of the
Capital Securities are purchased by the Underwriters (or by substituted
Underwriters selected by you with the approval of the Company or selected by the
Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the Delivery Date for a period not exceeding five business days in
order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
9. Indemnity by the Company, the Trust and the Underwriters:
(a) The Trust and the Company agree, jointly and severally, to
indemnify, defend and hold harmless each Underwriter, its directors and
officers, and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or person may
incur under the Act, the Exchange Act or otherwise, insofar as such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company or the Trust) or in a Prospectus (the term
Prospectus for the purpose of this Section 9 being deemed to include any
Preliminary Prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Company or the Trust), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated in
either such Registration Statement or Prospectus or necessary to make the
statements made therein not misleading, except insofar as any such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by any Underwriter through you to the
Company expressly for use with reference to such Underwriter in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in either such Registration Statement or
Prospectus or necessary to make such information not misleading.
-25-
If any action is brought against an Underwriter or any such person in
respect of which indemnity may be sought against the Company and the Trust
pursuant to the foregoing paragraph, such Underwriter or such person shall
promptly notify the Company and the Trust in writing of the institution of such
action and the Company and the Trust shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses, provided, however, that the omission
to so notify the Company or the Trust shall not relieve the Company or the Trust
from any liability which they may have to any Underwriter or any such person or
otherwise. Such Underwriter or controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or such person unless
the employment of such counsel shall have been authorized in writing by the
Company and the Trust in connection with the defense of such action or the
Company and the Trust shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company and the Trust
(in which case the Company and the Trust shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the Company and the Trust
and paid as incurred (it being understood, however, that the Company and the
Trust shall not be liable for the expenses of more than one separate counsel in
any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action). The
Company and the Trust shall not be liable for any settlement of any such claim
or action effected without their written consent, but if settled with the
written consent of the Company and the Trust, the Company and the Trust agree to
indemnify and hold harmless any Underwriter and any such person from and against
any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional
-26-
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Trust and the Company, their directors and officers and any person
who controls the Trust or the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act from and against any loss, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, the Trust or the Company or any such person may incur
under the Act or otherwise, insofar as such loss, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in and in conformity with information furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use with reference to such Underwriter in the Registration Statement (or in
the Registration Statement as amended by any post-effective amendment thereof by
the Company or the Trust) or in a Prospectus, or arises out of or is based upon
any omission or alleged omission to state a material fact in connection with
such information required to be stated either in such Registration Statement or
Prospectus or necessary to make such information not misleading.
If any action is brought against the Trust or the Company or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Trust or the Company or such person
shall promptly notify such Underwriter in writing of the institution of such
action and such Underwriter shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses, provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter, from any liability
which they may have to the Trust or the Company or any such person or otherwise.
The Trust or the Company or such person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Trust or the Company or such person unless the employment of
such counsel shall have been authorized in writing by such Underwriter shall not
have employed counsel to have charge of the defense of such action or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to such Underwriter (in which case such Underwriter shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties, but such Underwriter may employ counsel and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of
such Underwriter) in any of which events such fees and expenses shall be borne
by such Underwriter and paid as incurred (it being understood, however, that
such Underwriter shall not be liable for the expenses of more than one separate
counsel in any one action or series of related actions in the same jurisdiction
representing the indemnified
-27-
parties who are parties to such action). No Underwriter shall be liable for any
settlement of any such claim or action effected without the written consent of
such Underwriter, but if settled with the written consent of such Underwriter,
such Underwriter agrees to indemnify and hold harmless the Trust and the Company
and any such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, expenses, liabilities or claims
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Trust and the Company on the one hand and the Underwriters on
the other hand from the offering of the Capital 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 Trust and the
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, expenses, liabilities
or claims, as well as any other relevant equitable considerations. The relative
benefits received by the Trust and the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Trust and the Company bear to the
underwriting discounts and commissions received by the Underwriters. The
relative fault of the Trust and the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission relates to information supplied by the
Trust or the Company on the one
-28-
hand or by the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages
and liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
(d) The Trust, the Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in subsection (c)
above. Notwithstanding the provisions of this Section 9, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Capital Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company and
the Trust contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of any Underwriter, its
directors or officers or any person who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on
behalf of the Trust or the Company, their directors and officers or any person
who controls the Trust or the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Capital Securities. The Company
and the Trust and each Underwriter agree promptly to notify the others of the
commencement of any litigation or proceeding against it and, in the case of the
Company and the Trust, against any of the Trust or the Company's officers and
directors, in connection with the issuance and sale of the Capital Securities,
or in connection with the Registration Statement or Prospectus.
10. Notices: Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
SBC Warburg Dillon Read Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
Attention: Syndicate Department and, if to the Company or the Trust, shall be
sufficient in all respects if
-29-
delivered to the Company at the offices of the Company at [ ,
Attention: ].
11. Construction: This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York. The section headings in
this Agreement have been inserted as a matter of convenience of reference and
are not a part of this Agreement.
12. Parties at Interest: The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters and the Trust and the Company
and the controlling persons, directors and officers referred to in Section 9
hereof, and their respective successors, assigns, executors and administrators.
No other person, partnership, association or corporation (including a purchaser,
as such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
13. Counterparts: This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
14. Miscellaneous:
(a) SBC Warburg Dillon Read Inc., an indirect, wholly owned subsidiary of
Swiss Bank Corporation, is not a bank and is separate from any affiliated
bank, including any U.S. branch or agency of Swiss Bank Corporation.
Because SBC Warburg Dillon Read Inc. is a separately incorporated entity,
it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by SBC Warburg Dillon
Read Inc. are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are
not otherwise an obligation or responsibility of a branch or agency. A
lending affiliate of SBC Warburg Dillon Read Inc. may have lending
relationships with issuers of securities underwritten or privately placed
by SBC Warburg Dillon Read Inc. To the extent required under the
securities laws, prospectuses and other disclosure documents for securities
underwritten or privately placed by SBC Warburg Dillon Read Inc. will
disclose the existence of any such lending relationships and whether the
proceeds of the issue will be used to repay debts owed to affiliates of SBC
Warburg Dillon Read Inc. Without the prior written approval of the Company,
the U.S. branches and agencies of Swiss Bank Corporation will not share
with SBC Warburg Dillon Read Inc. any non-public information concerning
you, and SBC Warburg Dillon Read Inc. will not share any non-public
information received from the Company with any of such U.S. branches and
agencies of Swiss Bank Corporation.
-30-
(b) CIBC Xxxxxxxxxxx Corp., an indirect, wholly owned subsidiary of
Canadian Imperial Bank of Commerce, is not a bank and is separate from any
affiliated bank, including any U.S. branch or agency of Canadian Imperial
Bank of Commerce. Because CIBC Xxxxxxxxxxx Corp. is a separately
incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales
and purchases of securities. Securities sold, offered or recommended by
CIBC Xxxxxxxxxxx Corp. are not deposits, are not insured by the Federal
Deposit Insurance Corporation, are not guaranteed by a branch or agency,
and are not otherwise an obligation or responsibility of a branch or
agency. A lending affiliate of CIBC Xxxxxxxxxxx Corp. may have lending
relationships with issuers of securities underwritten or privately placed
by CIBC Xxxxxxxxxxx Corp. To the extent required under the securities
laws, prospectuses and other disclosure documents for securities
underwritten or privately placed by CIBC Xxxxxxxxxxx Corp. will disclose
the existence of any such lending relationships and whether the proceeds of
the issue will be used to repay debts owed to affiliates of CIBC
Xxxxxxxxxxx Corp. Without the prior written approval of the Company, the
U.S. branches and agencies of Canadian Imperial Bank of Commerce will not
share with CIBC Xxxxxxxxxxx Corp. any non-public information concerning the
Company, and CIBC Xxxxxxxxxxx Corp. will not share any non-public
information received from the Company you with any of such U.S. branches
and agencies of Swiss Bank Corporation.
-31-
If the foregoing correctly sets forth the understanding between the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement between the Company and the Underwriters, severally.
Very truly yours,
CNB CAPITAL TRUST I
By:
------------------------------
Title:
CNB BANCSHARES, INC.
By:
------------------------------
Title:
Accepted and agreed to as
of the date first above
written, on behalf of
themselves and the other
several Underwriters
named in Schedule A
SBC WARBURG DILLON READ INC.
CIBC XXXXXXXXXXX CORP.
By: SBC WARBURG DILLON READ INC.
By:
-------------------------------
Title:
By: CIBC XXXXXXXXXXX CORP.
By:
-------------------------------
Title:
SCHEDULE A
Underwriter Number of Capital Securities
----------- ----------------------------
SBC WARBURG DILLON READ INC.
CIBC XXXXXXXXXXX CORP.
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
XXXX XXXXXX INVESTMENTS, INC.
NATCITY INVESTMENTS, INC.
XXXXX, XXXXXXXX & XXXXX, INC.
WEDGEWOOD PARTNERS, INC.
Total........................
