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1,800,000 Preferred Securities
Lakeland Capital Trust
-----% Cumulative Trust Preferred Securities
(Liquidation Amount of $10 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
-----------------, 1997
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED 000 Xxxxx Xxxxxxxx Xx. Xxxxx,
Xxxxxxxx 00000
Dear Ladies and Gentlemen:
Lakeland Financial Corporation, an Indiana corporation (the
"Company"), and its financing subsidiary, Lakeland Capital Trust, a
Delaware business trust (the "Trust," and hereinafter together with the
Company, the "Offerors"), propose that the Trust issue and sell to Xxxxxx,
Xxxxxxxx & Company, Incorporated (sometimes referred to herein as the
"Underwriter"), pursuant to the terms of this Agreement, 1,800,000 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 1,800,000 Preferred Securities to be sold to the
Underwriter 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 Underwriter, at its option, up to an additional 200,000 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."
The Offerors hereby confirm as follows their agreement with
you in connection with the proposed purchase of the Designated Preferred
Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED
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SECURITIES; 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
the Underwriter and the Underwriter agrees to purchase from the Trust, at a
purchase price of $10.00 per share (the "Purchase Price"), the Firm Preferred
Securities. 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 the Underwriter a commission of $------ per Firm Preferred Security
purchased (the "Firm Preferred Securities Commission").
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
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Underwriter an option to purchase all or any portion of the 200,000 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 Underwriter all or any portion of the Option Preferred Securities at
the same Purchase Price per share paid for the Firm Preferred Securities.
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 Underwriter 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 the Underwriter giving notice
(confirmed in writing) to the Trust setting forth the number of Option
Preferred Securities as to which the Underwriter is exercising the Option
and the time, date and place for payment and delivery of certificates 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 the Underwriter, but shall not be earlier than two
nor later than five 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 certificates for the Firm Preferred
Securities shall be made at the Underwriter's offices, located at 000
Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or such other place as shall be
agreed to by the Underwriter and the Offerors, at 10:00 a.m., St. Louis
time, on --------------, 1997, or at such other time not more than five full
business days thereafter as the Offerors and the Underwriter shall
determine (the "Closing Date"). If the Underwriter exercises the option to
purchase any or all of the Option Preferred Securities, payment of the
Purchase Price and Option Preferred Securities Commission and delivery
of certificates for such Option Preferred Securities shall be made on the
Option Closing Date at the Underwriter's offices, or at such other place as
the Offerors and the Underwriter shall determine. Such payments shall be
made to an account designated by the Trust by wire transfer or certified
or bank cashier's check, in same day funds, in the amount of the Purchase
Price therefor, against delivery by or on behalf of the Trust to the
Underwriter of certificates for the Designated Preferred Securities to be
purchased by the Underwriter.
The Agreement contained herein with respect to the timing
of the Closing Date and Option Closing Date is intended to, and does,
constitute an express agreement, as described in Rule 15c6-[1(c)/1(a)]
and (d) promulgated under the 1934 Act (as defined herein), for a
settlement date other than [FOUR/THREE] business days after the date of
the contract.
Certificates for Designated Preferred Securities to be
purchased by the Underwriter shall be delivered by the Offerors in fully
registered form in such authorized denominations and registered in such
names as the Underwriter shall request in writing not later than 12:00
noon, St. Louis time, two business days prior to the Closing Date and, if
applicable, the Option Closing Date. Certificates for Designated Preferred
Securities to be purchased by the Underwriter shall be made available by
the Offerors to the Underwriter for inspection, checking and packaging at
such office as the Underwriter may designate in writing not later than
1:00 p.m., St. Louis time, on the last business day prior to the Closing Date
and, if applicable, on the last business day prior to the Option Closing
Date.
Time shall be of the essence, and delivery of the
certificates for the Designated Preferred Securities at the time and place
specified pursuant to this Agreement is a further condition of the
Underwriter's obligations hereunder.
(b) The Offerors propose that the Trust issue the
Designated Preferred Securities
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pursuant to an Amended and Restated Trust Agreement among State Street Bank
and Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware
Trustee, the Administrative Trustees named therein (collectively, the
"Trustees"), and the Company, in substantially the form heretofore delivered
to the Underwriter, 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
(the "Debentures") pursuant to an Indenture, to be dated as of --------------,
1997, between the Company and State Street Bank and Trust Company, as
Trustee (the "Indenture"), and (ii) to guarantee certain payments on the
Designated Preferred Securities pursuant to a Guarantee Agreement
between the Company and State Street Bank and Trust Company, as
guarantee trustee (the "Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
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(a) The Offerors jointly and severally represent and
warrant to, and agree with, the Underwriter that:
(i) The reports filed with the Securities and
Exchange Commission (the "Commission") by the Company under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and
the rules and regulations thereunder (the "1934 Act Regulations") at
the time they were filed with the Commission, complied as to form
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.
(ii) The Offerors have prepared and filed with the
Commission a registration statement on Form S-3 (File Numbers 333
_______ and 333 _____-01) for the registration of the Designated
Preferred Securities, the Guarantee and $20,000,000 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 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,
each Preliminary Prospectus (as defined herein) contained therein
and the exhibits, financial statements and schedules to such
registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the Underwriter.
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 Underwriter prior to (or as are
agreed to by the Underwriter 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
Underwriter prior to (or is agreed to by the Underwriter 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
and
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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 0000 Xxx); and the term
"Prospectus" means the prospectus first filed with the Commission
pursuant to Rule 424(b)(1) or (4) or, if no prospectus is required
to be filed pursuant to Rule 424(b)(1) or (4), the prospectus
included in the Registration Statement, in each case including the
financial schedules and all documents (or portions thereof)
incorporated by reference therein under the 1934 Act. The date on
which the Registration Statement becomes effective is hereinafter
referred to as the "Effective Date."
(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, 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 circumstances under which they were made,
not misleading.
(iv) No order preventing or suspending the use of
any Prospectus (or, if the Prospectus is not in existence, the most
recent 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
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representation and warranty does not apply to statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Offerors by the Underwriter expressly
for inclusion in the Prospectus beneath the heading "Underwriting"
and the last sentence on the cover page of the Prospectus (such
information referred to herein as the "Underwriter's Information").
(v) 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. 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 make the
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statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that
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this representation and warranty does not apply to the Underwriter's
Information.
(vi) (A) The Company is duly organized, validly
existing and in good standing under the laws of the State of
Indiana, with full corporate and other power and authority to own,
lease and operate its properties and conduct its business as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and as currently being conducted and
is duly registered as a 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 power and authority
(trust and other) to own its property and conduct its business as
described in the Registration Statement and Prospectus, to issue
and sell 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 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 not, and at the Closing Date or any Option
Closing Date will not be, to the knowledge of the Offerors,
classified as an association taxable as a corporation for
United States federal income tax purposes; and the Trust is,
and as of the Closing Date or any Option Closing Date will be,
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(vii) The Company has two (2) subsidiaries,
the Trust and Lake City Bank (the "Bank"; and together with the
Trust, 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 bank, corporation or
business trust duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of
incorporation. Each such Subsidiary has full corporate and other
power and authority to own, lease and operate its properties and
to conduct its business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) and
as currently being conducted. The deposit accounts of the Bank
are insured by the Bank Insurance Fund administered 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 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
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adverse effect on the condition (financial or otherwise),
earnings, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis. All of
the issued and outstanding shares of capital stock of the
Subsidiaries (A) have been duly authorized and are validly
issued, (B) are fully paid and nonassessable except to the extent
such shares may be deemed assessable under 12 U.S.C. Section 55 or
12 U.S.C. Section 1831o, and (C) except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), are directly owned by the Company
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon voting or transfer, preemptive
rights, claim or equity. Except as disclosed in the Prospectus,
there are no outstanding rights, warrants or options to acquire or
instruments convertible into or exchangeable for any capital stock
or equity securities of the Offerors or the Subsidiaries.
(ix) The capital stock of the Company and the
equity securities of the Trust conform to the description thereof
contained in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). The outstanding
shares of capital stock and equity securities of each Offeror have
been duly authorized and validly issued and are fully paid and
nonassessable, and no such shares were issued in violation of the
preemptive or similar rights of any security holder of an Offeror;
no person has any preemptive or similar right to purchase any
shares of capital stock or equity securities of the Offerors.
Except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there
are no outstanding rights, options or warrants to acquire any
securities of the Offerors, and there are no outstanding
securities convertible into or exchangeable for any such
securities and no restrictions upon the voting or transfer of any
capital stock of the Company or equity securities of the Trust
pursuant to the Company's corporate charter or bylaws, the Trust
Agreement or any agreement or other instrument to which an Offeror
is a party or by which an Offeror is bound.
(x) (A) The Trust has all requisite 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 sufficiently taken. The Designated Preferred
Securities, when delivered in accordance with this Agreement, will
be duly and validly issued and outstanding, will be fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust, will be entitled to the benefits of the Trust Agreement,
will not be issued in violation of or subject to any preemptive or
similar rights, and will conform to the description thereof in the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and the
Trust Agreement. None of the 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 entitled to the
benefits of the Indenture and will conform to the description
thereof contained in the Prospectus.
(C) The Guarantee has been duly and
validly authorized, and, when duly and validly executed and
delivered to the guarantee trustee for the benefit of the Trust,
will constitute a valid and legally binding obligation of the
Company and will conform to the
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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 and will
conform to the description thereof contained in the Prospectus.
(xi) The Offerors and the Subsidiaries have
complied in all material respects with all federal, state and local
statutes, regulations, ordinances and rules 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.
(xii) 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 in all material
respects. 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, subject
in each case to such qualification as may be adequately disclosed
in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus). 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 has 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 is in breach or violation of its corporate charter,
by-laws or other governing documents (including without
limitation, the 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 breach, violation or
default could have material adverse consequences to the Offerors
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,
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
Offerors and the Subsidiaries on a consolidated basis.
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(xiv) The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement, the Trust Agreement, the
Registration Statement and the Prospectus (or, if the Prospectus
in not in existence, the most recent Preliminary Prospectus) do
not and will not conflict with, result in the creation or
imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the 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 the charter or by-laws of the
Company or the Subsidiaries, the Trust Agreement, the Guarantee,
the Indenture, 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 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 this Agreement, the Trust Agreement, the
Indenture, the Guarantee, the Registration Statement and the
Prospectus, except such as have been obtained under the 1933 Act,
the Trust Indenture Act and from the Nasdaq Stock Market's
National Market relating to the listing of the Designated
Preferred Securities, 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 Underwriter.
(xv) The Offerors have all requisite corporate power
and authority to enter into this Agreement and this Agreement has
been duly and validly authorized, executed and delivered by the
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
general principles of equity and by bankruptcy or other laws
relating to or affecting creditors' rights generally and except as
any indemnification or contribution provisions thereof may be
limited under applicable securities laws. Each of the Indenture,
the Trust Agreement, the Guarantee and the Expense Agreement has
been duly authorized by the Company, and, when executed and
delivered by the Company on the Closing Date, each of said
agreements will constitute a valid and legally binding obligation
of the Company and will be enforceable against the Company in
accordance with its terms, except as the enforcement thereof may
be limited by general principles of equity and by bankruptcy or
other laws relating to or affecting creditors' rights generally
and except as any indemnification or contribution provisions
thereof may be limited under applicable securities laws. 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
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property; and all of the leases under which the Company or the
Subsidiaries hold real or personal property are valid, existing and
enforceable leases and in full force and effect with such exceptions
as are not material and do not materially interfere with the use
made or proposed to be made of such real or personal property, and
neither the Company nor any of the Subsidiaries is in default in any
material respect of any of the terms or provisions of any leases.
(xvii) Xxxxx, Xxxxxx and Company, LLP, who have
certified certain of the consolidated financial statements of the
Company and the Subsidiaries, including the notes thereto, included
by incorporation by reference or otherwise in the Registration
Statement and Prospectus, are independent public accountants with
respect to the Company and the Subsidiaries as required by the 1933
Act and the 1933 Act Regulations.
(xviii) The consolidated financial statements,
including the notes thereto, included by incorporation by reference
or otherwise in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) with respect to the Company and the Subsidiaries,
comply in all material respects with the 1933 Act and the 1933 Act
Regulations and present fairly the consolidated financial position
of the Company and 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. The selected and summary consolidated financial data
concerning the Offerors 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, and have been compiled on a basis consistent with that of
the consolidated financial statements of the Offerors 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) complies in
all material respects with the 1933 Act and the 1933 Act
Regulations, 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, business, prospects or results of operations of the
Offerors 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, 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;
(C) neither of the Offerors nor any of the
Subsidiaries has incurred any liabilities or obligations,
direct or contingent, or entered into any material
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transactions, other than in the ordinary course of business
which is material to the condition (financial or otherwise),
earnings, business, prospects or results of operations of the
Offerors 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; and
(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.
(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 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 to the Registration
Statement, or that are required to be summarized in the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) that are not so summarized.
(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, 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 Offerors 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 Offerors and the Subsidiaries on a
consolidated basis, and the Offerors do not know of any basis for
any such infringement or conflict.
(xxiv) Except as adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), no labor dispute
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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 Offerors 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 have
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 Offerors and the Subsidiaries on a consolidated
basis. 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 Offerors and the
Subsidiaries on a consolidated basis.
(xxvi) Each of the material contracts, agreements
and instruments described or referred to in the Registration
Statement or the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and each
contract, agreement and instrument filed as an exhibit to the
Registration Statement 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 general principles of
equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally. Except as disclosed in the
Prospectus (or such Preliminary Prospectus), to the knowledge of
the 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 Offerors or the Subsidiaries, on the one hand,
and the directors, officers, trustees, shareholders, customers or
suppliers of the Offerors 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.
(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 adequately
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 Stock Market's National Market
subject to official notice of issuance.
(xxx) Except as described in or contemplated by the
Prospectus (or, if the
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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 Offerors, (B) to make any loans or
advances to, or investments in, the Offerors or (C) to transfer
any of its property or assets to the Offerors.
(xxxi) Neither of the Offerors is 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 Underwriter.
3. OFFERING BY THE UNDERWRITER. After the Registration
---------------------------
Statement becomes effective or, if the Registration Statement is already
effective, after this Agreement becomes effective, the Underwriter
proposes to offer the Firm Preferred Securities for sale to the public upon
the terms and conditions set forth in the Prospectus. The Underwriter
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
National Association of Securities Dealers, Inc. ("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 Underwriter may reserve and sell such of the Designated
Preferred Securities purchased by the Underwriter as the Underwriter 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 Underwriter 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 Underwriter as follows:
(a) The Offerors shall use their best efforts to cause
the Registration Statement and any amendments thereto, if not effective at the
time of execution of this Agreement, to become effective as promptly as
possible. If the Registration Statement has become or becomes effective
pursuant to Rule 430A and information has been omitted therefrom in reliance
on Rule 430A, then the 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 Underwriter of such timely filing.
(b) The Offerors shall notify the Underwriter
immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, has
become effective, or when the Prospectus or any supplement to the
Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests
from the Commission
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relating to the Registration Statement or the Prospectus;
(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 Underwriter, from
time to time without charge, as soon as available, as many copies as the
Underwriter may reasonably request of (i) the registration statement as
originally filed and of all amendments thereto, in executed form, including
exhibits, whether filed before or after the Registration Statement
becomes effective, (ii) all exhibits and documents incorporated therein or
filed therewith, (iii) all consents and certificates of experts in executed
form, (iv) each Preliminary Prospectus and all amendments and
supplements thereto, and (v) the Prospectus, and all amendments and
supplements thereto.
(d) During the time when a prospectus is required to be
delivered under the 1933 Act, the Offerors shall comply to the best of
their ability 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 any Preliminary Prospectus or to
the Prospectus of which the Underwriter shall not previously have been
advised in writing and provided a copy a reasonable time prior to the
proposed filings thereof or to which the Underwriter or its counsel shall
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 Underwriter or its counsel does not reasonably
object), and furnishing to the Underwriter, such number of copies as the
Underwriter 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 the Underwriter and its counsel). 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
amend or supplement the Prospectus by preparing and filing with the
Commission, and furnishing to the Underwriter, such number of copies as
the Underwriter may reasonably request of an amendment or amendments
of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory to the Underwriter and its counsel) 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 the Underwriter
and its counsel in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such
jurisdictions as the Underwriter 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 the Underwriter 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 make generally available to their
security holders in the manner contemplated by Rule 158 of the 1933 Act
Regulations and furnish to the Underwriter as soon as practicable, but in
any event not later than 16 months after the Effective Date, a
consolidated earnings statement of the Offerors conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the 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."
(h) For five years from the Effective Date, the Offerors
shall furnish to the Underwriter 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 Stock
Market's National Market and such other documents, reports and
information concerning the business and financial conditions of the
Offerors as the Underwriter may reasonably request, other than such
documents, reports and information for which the Offerors has the legal
obligation not to reveal to the Underwriter.
(i) For a period of 30 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 other
than pursuant to this Agreement, 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 or the
Debentures, 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 without the Underwriter's
prior written consent.
(j) The Offerors shall use their best efforts to cause
the Designated Preferred Securities to become quoted on the Nasdaq Stock
Market's National Market, or in lieu thereof a national securities exchange,
and to remain so quoted for at least five years from the Effective Date or
for such shorter period as may be specified in a written consent of the
Underwriter, provided this shall not prevent the Company from redeeming
the Designated Preferred Securities pursuant to the terms of the Trust
Agreement. If the Designated Preferred Securities are exchanged for
Debentures, the Company will use its best efforts to have the Debentures
promptly listed on the Nasdaq Stock Market's 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.
(k) 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 Underwriter's option to purchase the Option Preferred
Securities shall expire or (ii) the day following the Option Closing Date
with respect to any
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Option Preferred Securities that the Underwriter 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, and there
will not be any material 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.
(l) The Offerors shall not take, directly or indirectly,
any action designed to result in or which has constituted or which might
reasonably be expected to (i) 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 or (ii) otherwise
violate the Commission's Regulation M, and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the Offerors.
(m) 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 (the "Offering") without the Underwriter's
prior written consent.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is
-------------------
terminated or the sale of the Designated Preferred Securities to the
Underwriter is consummated, the Company covenants and agrees that it
will pay or cause to be paid (directly or by reimbursement) all costs and
expenses incident to the performance of the obligations of the 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), the
certificates for the Designated Preferred Securities and the Preliminary
and Final Blue Sky Memoranda and any legal investment surveys and any
supplements thereto;
(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 the Underwriter may request, including all filing fees and fees and
disbursements of counsel to the Underwriter in connection therewith,
including, without limitation, in connection with the preparation of the
Preliminary and Final Blue Sky Memoranda and any legal investment
surveys and any supplements thereto;
(d) all fees and expenses incurred in connection with
filings made with the NASD;
(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 Stock Market's
National Market;
(f) the cost of furnishing to the Underwriter 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 to any transfer agent
or registrar;
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(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 Underwriter;
(i) all expenses incident to the preparation, execution
and delivery of the Trust Agreement, the Indenture and the Guarantee; 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 for any reason whatsoever, whether or
not such termination is allowable hereunder, the Company will pay the
Underwriter its accountable out-of-pocket expenses in connection
herewith or in contemplation of the performance of the Underwriter's
obligations hereunder, including without limitation travel expenses,
reasonable fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by the Underwriter 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 to the Underwriter other
than in accordance with paragraph (c) above, or for the reimbursement of
any expenses of the Underwriter.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The
-------------------------------------------
obligations of the Underwriter 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 the Underwriter's sole discretion, to the accuracy of and compliance
with the representations and warranties and 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 the Underwriter 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 Underwriter, 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 the Underwriter and complied with to the satisfaction of the
Underwriter and its counsel.
(b) The Underwriter shall not 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 the Underwriter's opinion, is material
or omits to state a fact which, in
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the Underwriter's 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 respects to counsel to the Underwriter, 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, Xxxx & Xxxxxxxx, X.X., counsel to the
Offerors, shall have furnished to the Underwriter its signed opinion, dated
the Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to counsel to the Underwriter, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the State
of Indiana, and is duly registered as a bank holding company under
the BHC Act. Each of the Subsidiaries is duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and the
Subsidiaries 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. To the best of such counsel's knowledge, all
outstanding shares of capital stock of the Subsidiaries have been
duly authorized and validly issued and are fully paid and
nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 1831 and, to the best of such
counsel's knowledge, except as disclosed in the Prospectus, there
are no outstanding rights, options or warrants to purchase any
such shares or securities convertible into or exchangeable for any
such shares.
(ii) The capital stock, 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. To the best of such counsel's knowledge, the
capital stock of the Company authorized and issued as of June 30,
1997 is as set forth under the caption "Capitalization" in the
Prospectus has been duly authorized and validly issued, and is
fully paid and nonassessable. To the best of such counsel's
knowledge, there are no outstanding rights, options or warrants to
purchase, no other outstanding securities convertible into or
exchangeable for, and no commitments, plans or arrangements to
issue, any shares of capital stock of the Company or equity
securities of the Trust, except as described in the Prospectus.
(iii) The issuance, sale and delivery of the
Designated Preferred Securities and Debentures in accordance with
the terms and conditions of this 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 in accordance with this
Agreement, will be duly and validly issued, fully paid and
nonassessable, and will conform to the description thereof in the
Registration Statement, the Prospectus and the Trust Agreement.
The Designated Preferred Securities have been approved for
quotation on the Nasdaq Stock Market's National 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 shares of capital stock or 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 the best of such counsel's
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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.
(iv) The Offerors have all requisite corporate and
trust power to enter into and perform their obligations under this
Agreement, and this Agreement has been duly and validly authorized,
executed and delivered by the Offerors and constitutes the legal,
valid and binding obligations of the Offerors 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 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, authenticated and delivered by the Company, are entitled
to the benefits of the Indenture and are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity.
(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 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 the best of 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 to the best of such counsel's
knowledge, any material contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise, license
or any other agreement or instrument to which either Offeror or
the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or any order, decree,
judgment, franchise, license, Permit, rule or regulation of
any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties which, in each case, is material to 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
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under Indiana law in connection with the transactions contemplated
by this Agreement in connection with the purchase and distribution
of the Designated Preferred Securities by the Underwriter.
(ix) To the best of such counsel's knowledge,
holders of securities of the Offerors either 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 the best of such counsel's knowledge,
neither the Offerors 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) Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's
knowledge, (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 may be 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, 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, the Trust Indenture Act, 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 Underwriter.
(xii) The Registration Statement and the Prospectus
and any amendments or supplements thereto and any documents
incorporated therein by reference (other than the financial
statements or other financial data included therein or omitted
therefrom and Underwriter's 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.
(xiii) To the best of 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.
(xiv) The statements under the captions
"Description of the Preferred Securities," "Description of the
Subordinated Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Subordinated
Debentures and the Guarantee," "Certain Federal Income Tax
Consequences," "ERISA Considerations" and "General - Supervision
and Regulation" in the Prospectus or incorporated therein by
reference, insofar as such statements constitute a summary of
legal and regulatory matters, documents, instruments or
proceedings referred to therein, are accurate descriptions of the
matters summarized therein in all material respects and fairly
present the information called for with respect to such legal
matters, documents and instruments, other than financial and
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statistical data, as to which said counsel shall not be required
to express 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 described in or contemplated by the
Prospectus, to the best of such counsel's knowledge, 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 indebtedness owed to
the Offerors, (B) to make any loans or advances to, or investments
in, the Offerors or (C) to transfer any of its property or assets
to the Offerors.
(xvii) To the best of such counsel's knowledge, (A)
the business and operations of the Offerors and the Subsidiaries
comply in all material respects with all statutes, ordinances,
laws, rules and regulations applicable thereto and which are
material to the Offerors and the Subsidiaries on a consolidated
basis, except in those instances where non-compliance would not
materially impair the ability of the Offerors and the Subsidiaries
to conduct their business; and (B) the Offerors and the
Subsidiaries possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all
Permits that are required to conduct their businesses as described
in the Prospectus and that are material to the Offerors and the
Subsidiaries on a consolidated basis, except in those instances
where the loss thereof or non-compliance therewith would not have
a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of
the Offerors and the Subsidiaries on a consolidated basis; to the
best of such counsel's knowledge, all such Permits are valid and in
full force and effect, and, to the best of such counsel's knowledge,
no action, suit or proceeding is pending or threatened which may
lead to the revocation, termination, suspension or non-renewal of
any such Permit, except in those instances where the loss thereof or
non-compliance therewith would not materially impair the ability
of the Offerors or the Subsidiaries to conduct their businesses.
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, franchises, licenses or other agreements or instruments, and all
material permits, easements, consents, licenses, franchises and
government regulatory authorizations, for purposes of paragraphs (viii),
(xiii) and (xvii) hereof, and upon certificates of public officials. In giving
such opinion, such counsel may rely upon (A) the opinion of Xxxxxxxx,
Xxxxxx and Finger described herein as to matters of Delaware law and (B)
the opinion of Lemon, Armey, Xxxxx & Xxxxxxxxx as to matters of Indiana
law and certain matters regarding the Company and the Subsidiaries, and
such counsel shall state in its opinion the extent to which it is relying on
the opinion of such Company counsel and that such reliance is, in the view
of such counsel, reasonable under the circumstances.
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 the
Underwriter and its 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 (without taking further
action to
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verify independently the statements made in the Registration Statement and the
Prospectus, and without assuming responsibility for the accuracy or
completeness of such statements, except to the extent expressly provided
above) 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 the Underwriter's Information, as to which such counsel need express no
opinion), at the time the Registration Statement or any such amendment became
effective, contained any untrue statement of 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 or the documents incorporated therein by reference (except for the
financial statements and related schedules and statistical data included
therein or omitted therefrom or the Underwriter's 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 not misleading in light of the circumstances under which they
were made, or (C) that there is any amendment to the Registration
Statement required to be filed that has not already been filed.
(e) Xxxxxxxx, Xxxxxx and Finger, special Delaware
counsel to the Offerors, shall have furnished to the Underwriter its 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 Agreement is a legal, valid and
binding agreement of the Trust and the Trustees, and is
enforceable against the Company, as depositor, and the Trustees,
in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware
Business Trust Act, the execution and delivery of the Underwriting
Agreement 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 Designated Preferred Securities have been
duly 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 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.
(v) Holders of Designated Preferred Securities,
as beneficial owners of the Trust, will be entitled to the same
limitation on 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.
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(vi) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Preferred
Securities is not subject to preemptive rights.
(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 LLP, counsel to the Underwriter, shall
have furnished to the Underwriter its 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
to the Underwriter may reasonably request and there shall have been
furnished to such counsel such documents and other information as they
may request to enable them to pass on such matters. In giving such
opinion, Xxxxx Xxxx LLP may rely as to matters of fact upon statements
and certifications of officers of the 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, upon the opinions of Xxxxx, Rice &
Xxxxxxxx, X.X., Lemon, Armey, Xxxx & Xxxxxxxxx and Xxxxxxxx, Xxxxxx and
Finger described herein.
(g) On the date of this Agreement and on the Closing
Date (and, if applicable, any Option Closing Date), the Underwriter shall
have received from Xxxxx, Xxxxxx and Company 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
Underwriter, confirming that they are independent public accountants
with respect to the Company and the Subsidiaries (for purposes of this
Section 6(g) the "Company") 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 in the
Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations.
(ii) On the basis of the procedures specified by
the 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 in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933
Act and 1933 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.
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(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, any decreases in consolidated total assets or
shareholders equity of the Company, or any changes,
decreases or increases in other items specified by the
Underwriter, in each case as compared with amounts shown in
the latest unaudited interim consolidated statement of
financial condition of the Company included 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 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 any other items specified by the
Underwriter, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Underwriter, 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 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 Underwriter which are
derived from the general accounting records and consolidated
financial statements of the Company which appear in the
Registration Statement and have compared such amounts, percentages
and financial information with the accounting records and the
material derived from such records and consolidated financial
statements of the Company and have found them to be in agreement.
In the event that the letters to be delivered referred to
above set forth any such changes, decreases or increases as specified in
Clauses (iii)(A) or (iii)(B), above, or any exceptions from such agreement
specified in Clause (iv) above, it shall be a further condition to the
Underwriter's obligations that the Underwriter 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 in the Registration Statement, (y) reflect a material adverse
change in the items specified in Clause (iii)(B) above as compared with
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the corresponding periods of the prior year or other period specified by the
Underwriter, or (z) reflect a material change in items specified in Clause
(iv) above from the amounts shown in the Preliminary Prospectus distributed by
the Underwriter 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, the Underwriter 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 Offerors set forth in
Section 2(a) hereof are accurate as of the Closing Date and, if applicable,
the Option Closing Date, and that the Offerors have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to such 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 Offerors 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 the Underwriter 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, the Underwriter 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 contemplated
by 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, the Underwriter 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 Underwriter's participation in such offering.
(l) Prior to the Closing Date and, if applicable, the
Option Closing Date, the Offerors shall have furnished to the Underwriter and
its counsel 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 the Underwriter.
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The Offerors shall furnish the Underwriter with conformed copies of such
opinions, certificates, letters and other documents as the Underwriter 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 Underwriter's obligations hereunder may be
terminated by the Underwriter 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 Underwriter to the
Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) The Offerors agree to jointly and severally indemnify
and hold harmless the Underwriter, each of its directors, officers and agents,
and each person, if any, who controls the Underwriter within the meaning
of the 1933 Act, against any and all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation and reasonable
attorney fees and expenses), joint or several, arising out of or based (i)
upon any untrue statement or alleged untrue statement of a material fact
made by the Company or the Trust contained in Section 2(a) of this
Agreement (or any certificate delivered by the Company or the Trust
pursuant to Sections 6(h), 6(i) or 6(l) hereof) or the registration
statement as originally filed or the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, (ii) upon any blue sky application or other document
executed by the Company or the Trust specifically for that purpose or
based upon written information furnished by the Company or the Trust
filed in any state or other jurisdiction in order to qualify any of the
Designated Preferred Securities under the securities laws thereof (any
such application, document or information being hereinafter referred to as
a "Blue Sky Application"), (iii) any omission or alleged omission to state a
material fact in the registration statement as originally filed or the
Registration Statement, the Preliminary Prospectus or the Prospectus, or
in any amendment or supplement thereto, or in any Blue Sky Application
required to be stated therein or necessary to make the statements therein
not misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorney 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 (iv) 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 Underwriter's Information;
provided, that the indemnification contained in this paragraph with
--------
respect to any Preliminary Prospectus shall not inure to the benefit of the
Underwriter (or of any person controlling the Underwriter) to the extent
any such losses, claims, damages, liabilities or expenses directly results
from the fact that the 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 the Underwriter in sufficient time to distribute same with or
prior to the written confirmation of the sale involved), if required by law,
and if such loss, claim, damage, liability or expense would not have arisen
but for the failure to give or send such person such document. The
foregoing indemnity agreement is in addition to any liability
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the Company or the Trust may otherwise have to any such indemnified party.
(b) The Underwriter agrees to indemnify and hold harmless
each Offeror, each of its directors, each of its officers who signed the
Registration Statement 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 the Underwriter, but only with
respect to the Underwriter's Information or information related to the
Underwriter furnished in writing to an Offeror through the Underwriter by
or on its behalf expressly for use in a Blue Sky Application. The foregoing
indemnity agreement is in addition to any liability which the 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
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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 parties and
controlling persons, which firm shall be designated in writing by the
indemnified party and shall be reasonably satisfactory to the indemnifying
party. Each indemnified party and each controlling person, as a condition
of such indemnity, shall use reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. The
indemnifying party shall not be liable for any settlement of any such
action effected without its written consent, but if there be a final
judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written
consent of each indemnified party, settle, compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnity may be sought hereunder
(whether or not such indemnified party or any person who controls such
indemnified party within the meaning of the 1933 Act is a party to such
claim, action, suit or proceeding), unless such settlement, compromise or
consent includes a release of each such indemnified party reasonably
satisfactory to each such indemnified party and each such controlling
person from all liability arising out of such claim, action, suit or
proceeding or unless the indemnifying party shall confirm in a written
agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement,
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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 Underwriter 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
Underwriter 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 benefits received
by the Underwriter on the one hand and the Offerors on the other shall be
deemed to be allocated pro rata on the basis of the total underwriting
discounts, commissions and compensation received by the Underwriter
relative to the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors,
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 Underwriter
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 Underwriter and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. Each Offeror and
the Underwriter 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), the
Underwriter shall not be required to contribute any amount in excess of
the amount by which the total price at which the Designated Preferred
Securities underwritten by the Underwriter and distributed to the public
were offered to the public exceeds the amount of any damages that the
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls
the Underwriter within the meaning of the 1933 Act shall have the same
rights to contribution as the 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 paragraph. 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
Underwriter under this paragraph (d) shall be in addition to any liability
that the Underwriter may otherwise have.
(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 the
Underwriter or any person controlling the 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
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Securities and payment therefor hereunder and (iii) any termination of
this Agreement. A successor of the Underwriter or of an Offeror, such
directors, trustees or officers (or of any person controlling the
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. The Underwriter shall have the right to
-----------
terminate this Agreement at any time at or prior to the Closing Date or,
with respect to the Underwriter's 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 Underwriter 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 Underwriter 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 the
Underwriter's 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 Stock Market's National Market
shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall
have been required, by any of said exchanges or market system or by the
Commission or any other governmental authority;
(f) A banking moratorium shall have been declared by
either federal or Indiana authorities; or
(g) Any action shall have been taken by any government in
respect of its monetary affairs which, in the Underwriter's reasonable
judgment, has a material adverse effect on the United States securities
markets.
The Offerors shall have the right to terminate this Agreement
at any time at or prior to the Closing Date or, with respect to the sale of
the Option Preferred Securities, at any time at or prior to the Option
Closing Date, if a Tax Event or a Capital Treatment Event, as such terms
are defined in the Registration Statement, shall have occurred.
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If this Agreement shall be terminated pursuant to this
Section 8, the Offerors shall not then be under any liability to the
Underwriter except as provided in Sections 5 and 7 hereof.
9. 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 Underwriter 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 Underwriter shall release the Designated Preferred Securities
for initial public offering. The Underwriter shall notify the Offerors
immediately after it has taken any action which causes this Agreement to
become effective.
Until such time as this Agreement shall have become
effective, it may be terminated by the Offerors, by notifying the
Underwriter, or by the Underwriter, by notifying either Offeror, except
that the provisions of Sections 5 and 7 shall at all times be effective.
10. 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 Underwriter 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 Underwriter or controlling persons of the
Underwriter or any termination or cancellation of this Agreement and
shall survive delivery of and payment for the Designated Preferred
Securities.
11. NOTICES. Except as otherwise provided in this Agreement, all
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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 either
Offeror shall be sent to 000 Xxxx Xxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxx,
Xxxxxxx 00000-0000, Attention: R. Xxxxxxx Xxxxx (with a copy to Xxxxx,
Rice & Xxxxxxxx, X.X., 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx
00000, Attention: Xxxxxx X. Xxx, Esq.; and to Lemon, Armey, Xxxxx &
Xxxxxxxxx, 000 Xxxxx Xxxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxx, Xxxxxxx
00000-0000, Attention: Xxxxxxx X. Xxxxx, Esq.); and notices to the
Underwriter shall be sent to Xxxxxx, Xxxxxxxx & Company, Incorporated,
000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Xxxx X. Xxxxxx (with a copy to Xxxxx Xxxx LLP, One Metropolitan Square,
000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Xxxxx X. XxXxxxxx, Esq.).
12. PARTIES. The Agreement herein set forth is made solely for
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the benefit of the Underwriter and the Offerors and, to the extent
expressed, directors, trustees and officers of the Offerors, any person
controlling the Offerors or the Underwriter, and their respective
successors and assigns. No other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns"
shall not include any purchaser, in its status as such purchaser, from the
Underwriter of the Designated Preferred Securities.
13. 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.
14. COUNTERPARTS. This Agreement may be executed in one or
------------
more counterparts, and when a counterpart has been executed by each
party hereto all such counterparts taken together shall
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constitute one and the same Agreement.
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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,
LAKELAND FINANCIAL CORPORATION
By:--------------------------------------------
R. Xxxxxxx Xxxxx President and Chairman
of the Board
LAKELAND CAPITAL TRUST
By:--------------------------------------------
R. Xxxxxxx Xxxxx Administrative Trustee
CONFIRMED AND ACCEPTED, as of -------- ---, 1997.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:-----------------------------------------
Xxxx X. Xxxxxx Senior Vice President
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