Exhibit 1
870,000 Preferred Securities
SBI Capital Trust
% Cumulative Trust Preferred Securities
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(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
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, 1997
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XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
Southwest Bancorp, Inc., an Oklahoma corporation (the "Company") and
its financing subsidiary, SBI 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, 870,000 of the Trust's ____% Cumulative Trust Preferred
Securities, with a liquidation amount of $25.00 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 870,000 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 130,500 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 the
Underwriter in connection with the proposed purchase of the Designated Preferred
Securities.
1. Sale, Purchase and Delivery of Designated Preferred Securities;
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Description of Designated Preferred Securities.
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(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to the Underwriter,
and the Underwriter agrees to purchase from the Trust, at a purchase price of
$25.00 per preferred security (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 (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 Underwriter an option to purchase all or
any portion of the 130,500 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, and the Underwriter agrees to
purchase from the Trust, all or any portion of the Option Preferred Securities
at the same Purchase Price per preferred security 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 full
business days after the exercise of such Option, nor in any event prior to the
Closing Date (as hereinafter defined). The Option Closing Date may be the same
as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of certificates for the Firm Preferred Securities shall
be made at the offices of the Underwriter, 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 clearing house or similar next day available 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) and (d) promulgated under the
1934 Act (as defined herein), for a settlement date other than four 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.
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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 obligations of the Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities 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 with the
requirements of the 1934 Act and the 1934 Act Regulations and did not
contain an untrue statement of fact or omit to state any 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-2 (File Numbers 333-
_____ and 333-_____-01) for the registration of the Designated
Preferred Securities, the Guarantee and $25,012,500 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 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
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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. The Offerors will not file any amendment to the
registration statement or any amended Preliminary Prospectus or any
amendment thereto, of which the Underwriter has not been previously
furnished a copy or to which the Underwriter or counsel to the
Underwriter shall reasonably object. 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 exhibits thereto,
(2) all documents (or portions thereof) incorporated by reference
therein filed under the 1934 Act, and (3) any information omitted
therefrom pursuant to Rule 430A and included in the Prospectus (as
hereinafter defined); the term "Preliminary Prospectus" means each
prospectus subject to completion filed with such registration
statement or any amendment thereto including all documents (or
portions thereof) incorporated by reference therein under the 1934
Act (including the prospectus subject to completion, if any, included
in the Registration Statement and each prospectus filed pursuant to
Rule 424(a) under the 1933 Act); and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b)(1)
or (4) or, if no prospectus is required to be filed pursuant to Rule
424(b)(1) or (4), the prospectus included in the Registration
Statement, in each case including the financial schedules 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 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 fact or omit to state any 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
with the requirements of the 1933 Act and the 1933 Act Regulations
and (B) did not contain an untrue statement of fact or omit to state
any 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" (such information
referred to herein as the "Underwriters Information").
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(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 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 fact or omit to state
any 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 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 fact or omit to state any fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
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warranty does not apply to Underwriters Information.
(vi) (A) The Company is duly organized, validly existing and
in good standing under the laws of the State of Oklahoma, 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 an 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 2 subsidiaries, Stillwater National
Bank & Trust Company (the "Bank") and the Trust. The Bank and the
Trust are hereinafter collectively referred to as the "Subsidiaries".
The Company does not own or control, directly or
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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 national banking association or business trust
duly incorporated, 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
Bank is a member of the Federal Reserve System, and no proceedings
for the termination or revocation of such membership are pending, or,
to the knowledge of the Company, threatened. 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, except to the extent the Prospectus discloses
such deposit accounts are insured by the Savings Association
Insurance Fund administered by the FDIC and to such extent the
deposit accounts are so insured 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 an 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, except for preemptive rights under the
National Bank Act.
(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 other
than options issued under the Company's 1994 Stock Option Plan, 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.
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(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
Identure 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 description thereof contained in the
Prospectus.
(D) The Agreement as to Expenses and Liabilities (the
"Expense Agreement") has been duly and validly authorized, and, when duly and
validly executed and delivered by the Company, will constitute a valid and
legally binding obligation of the Company and will conform to the description
thereof contained in the Prospectus.
(xi) The Offerors and the Subsidiaries have complied 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 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. All such Permits are in full force and effect and each of the
Offerors and the Subsidiaries are 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 impairment of the rights of the
holder of any such Permit, subject in each case to
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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 impair the ability of the Company or
the Subsidiaries to conduct their businesses in the manner consistent with their
past practices. Neither the Offerors nor any of the Subsidiaries have received
notice or otherwise has knowledge of any proceeding or action relating to the
revocation or modification of any such Permit.
(xiii) Neither of the Offerors nor any of the Subsidiaries is in
breach or violation of their corporate charter, by-laws or other governing
documents (including without limitation, the Trust Agreement). Neither of the
Offerors nor any of the Subsidiaries are, and to the knowledge of the Offerors
no other party is, in violation, breach or default (with or without notice or
lapse of time or both) in the performance or observance of any term, covenant,
agreement, obligation, representation, warranty or condition contained in (A)
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license, Permit or any other agreement or instrument to
which it is a party or by which it or any of its properties may be bound, which
such breach, violation or default could have 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 (provided that the
foregoing shall not apply to defaults by borrowers from the Bank), or (B) except
as disclosed in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Offerors or
the Subsidiaries or any of their respective properties the breach, violation or
default of which could have an 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.
(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
is not in existence, the most recent Preliminary Prospectus) do not and will not
conflict with, result in the creation or imposition of any lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or 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 an 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
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as may be required by, and have been obtained under, the 1933 Act, the Trust
Indenture Act, state securities laws, 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, and
from the Nasdaq Stock Market's National Market relating to the listing of the
Designated Preferred Securities.
(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, 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
affect the value of such property in the aggregate and do not interfere with the
use made or proposed to be made of such property; and all of the leases under
which the Company or the Subsidiaries hold real or personal property are valid,
existing and enforceable leases and in full force and effect and do not
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 of
any of the terms or provisions of any leases.
(xvii) Deloitte & Touche LLP, who have certified certain of the
consolidated financial statements of the Company and the Subsidiaries including
the notes thereto, included 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 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
9
consolidated financial data concerning the Offerors and the Subsidiaries
included in the Registration Statement and the Prospectus (or such Preliminary
Prospectus) comply 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) comply with the 1933 Act and the 1933 Act Regulations,
present fairly the information shown therein, and to the extent applicable have
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
have 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 adverse change in, or any
development which is likely to have an 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 have
incurred any liabilities or obligations, direct or contingent, or entered into
any transactions, other than in the ordinary course of business which are
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 have declared or paid any
dividend other than dividends with respect to the Company's Series A, 9.20%
Redeemable, Cumulative Preferred Stock, $1 par value, and neither of the
Offerors nor any of the Subsidiaries have 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
(except for the exercise of employee stock options issued under the Company's
1994 Stock Option Plan, and disclosed as outstanding), 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
10
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 an 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 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 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 an 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 involving the Company or the Subsidiaries exists or, to the
knowledge of the Offerors, is imminent which might be expected to have an
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 an 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
11
and file would not have an 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 an 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 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 thereunder; provided however, that the foregoing shall not apply to
----------------
defaults by borrowers from the Bank.
(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 National Market subject to official notice of issuance.
(xxx) Except as described in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), there are no
contractual encumbrances or restrictions or legal restrictions 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) Without limiting the generality of any of the foregoing
representations and warranties, the Trust Department Service Agreement (the
"Service Agreement") dated August 24, 1992 between the Bank and The Trust
Company of Oklahoma is in full force and effect and neither the Bank nor, to the
best knowledge of the Company, The Trust Company of Oklahoma, 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 the Service Agreement, and
the
12
Service Agreement complies in all material respects with all applicable
federal, state and local statutes, regulations, ordinances and rules.]
(xxxii) Neither of the Offerors is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(xxxiii) 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.
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;
(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
13
(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 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 counsel to the Underwriter shall
reasonably object. If it is necessary, in the Underwriter's reasonable opinion
or in the reasonable opinion of counsel to the Underwriter 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 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 counsel to the
Underwriter). 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 fact or to
include any 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 counsel to the
Underwriter) so that, as so amended or supplemented, the Prospectus shall not
contain an untrue statement of fact or omit to state any fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(e) The Offerors shall cooperate with the Underwriter and counsel
to the Underwriter 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
14
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 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 180 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, 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 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 National Market or other organization
on which the Designated Preferred Securities are then listed, and to have the
Debentures promptly registered under the Exchange 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 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
15
any action (or refrain from taking any action) which will result in the Offerors
or the Subsidiaries incurring any liability or obligation, direct or contingent,
or enter into any transaction, except in the ordinary course of business, and
there will not be any change in the financial position, capital stock, or any
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, for a period of 180 days after the
date hereof, without the Underwriter's prior written consent, purchase, redeem
or call for redemption, or prepay or give notice of prepayment (or announce any
redemption or call for redemption, or any repayment or notice of prepayment) of
the Offerors' securities; provided however, that the foregoing shall not prevent
----------------
an employee from delivering the Company's securities in payment of the exercise
price of options issued under the Company's 1994 Stock Option Plan.
(m) The Offerors shall not take, directly or indirectly, any action
designed to result in or which has constituted or which might 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 the
Offerors are not aware of any such action taken or to be taken by any affiliate
of the Offerors.
(n) 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,
which will not be unreasonably withheld.
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;
16
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the Nasdaq National Market;
(f) the cost of furnishing to 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;
(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, including without
limitation if this Agreement is terminated by the Company or by the Underwriter
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, including without limitation any advertising expenses related to
any offers made by 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
17
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 Underwriter's satisfaction and to the
satisfaction of counsel to the Underwriter.
(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 fact which, in the Underwriter's opinion, is material or omits to state any
fact which, in 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) Xxxxxxx & Xxxxx, L.L.P., counsel to the Offerors, shall have
furnished to the Underwriter their 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 Oklahoma, 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. 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 55 or 12 U.S.C.
Section 1831o and, 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. The Bank
is a member of the Federal Reserve System, and no proceedings for
termination or revocation of such membership are pending or, to the best
knowledge of such counsel, threatened. The deposit accounts of the Bank are
insured by the FDIC up to the maximum amount provided by law, and no
proceedings for the termination or revocation of such insurance are pending
or, to the best knowledge of such counsel, threatened.
18
(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. The capital stock of the Company
authorized and issued as of ______________, 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. The form of
certificates to evidence the Designated Preferred Securities has been
approved by or on behalf of the Trust and is in due and proper form and
complies with all applicable requirements. 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 Offerors have all requisite corporate power and
authority to issue, sell and deliver the Designated Preferred Securities
and Debentures in accordance with and upon the terms and conditions set
forth in this Agreement, the Indenture, the Trust Agreement, the
Registration Statement and the Prospectus. All corporate action required to
be taken by the Offerors for the authorization, issuance, sale and delivery
of the Designated Preferred Securities and Debentures in accordance with
such terms and conditions has been validly and sufficiently taken. 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 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 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
19
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 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 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, 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 contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease, franchise, license or
any other agreement or instrument to which either Offeror or the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or any order, decree, judgment, franchise, license,
Permit, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, known to such
counsel having jurisdiction over the Offerors or the Subsidiaries or any of
their respective properties. No authorization, approval, consent or order
of, or filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is required
under Oklahoma 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, (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 have an 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
20
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
may be required by, and have been obtained under, the 1933 Act, the Trust
Indenture Act, 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, and from the Nasdaq Stock Market's
National Market relating to the listing of the Designated Preferred
Securities.
(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 with the
requirements of the 1933 Act and the 1933 Act Regulations as of their
respective dates of effectiveness.
(xiii) 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 "Capitalization",
"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",
"Regulation of Branch and Interstate Banking", and "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 and fairly present the
information called for with respect to such legal and regulatory matters,
documents, instruments and proceedings, other than financial and
statistical data as to which said counsel expresses no 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 set forth in the Prospectus, to the best of
counsel's knowledge, there are no contractual encumbrances or restrictions,
or legal restrictions (excluding any encumbrances or restrictions of
general application to national banks contained in laws, rules and
regulations of applicable regulatory authorities) on the ability of the
Subsidiaries (A) to pay dividends or make any other distributions on its
capital stock or to pay indebtedness owed to the 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.
21
(xvii) To the best of such counsel's knowledge, (A) the
business and operations of the Offerors and the Subsidiaries comply with
all statutes, ordinances, laws, rules and regulations applicable thereto,
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
compliance with the terms, provisions and conditions of all Permits and
required to conduct their businesses as described in the Prospectus, except
in those instances where the loss thereof or non-compliance therewith would
not have an 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 contracts, indentures, mortgages, deeds of trust, loans or credit
agreements, notes, leases, franchises, licenses or other agreements or
instruments, and all permits, easements, consents, licenses, franchises and
government regulatory authorizations, for purposes of paragraphs (viii), (xiii)
and (xvii) hereof and certificates of public officials. In giving such opinion,
such counsel may rely as to matters of Delaware law upon the opinion of
Xxxxxxxx, Xxxxxx and Xxxxxx described herein.
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 counsel to the
Underwriter, at which conferences such counsel made inquiries of such officers,
representatives and accountants and discussed in detail the contents of the
Registration Statement and Prospectus and the documents incorporated therein by
reference and such counsel has no reason to believe (A) that the Registration
Statement or any amendment thereto (except for the financial statements and
related schedules and statistical data included therein or omitted therefrom or
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 fact or omitted to state any 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 contained
therein by reference (except for the financial statements and related schedules
and statistical data included therein or omitted therefrom or 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 fact or
omitted or omits to state any 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.
22
(e) Xxxxxxxx, Xxxxxx and Finger, special Delaware counsel to the
Offerors, shall have furnished to the Underwriter their signed opinion, dated as
of Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act and,
under the Trust Agreement and the Delaware Business Trust Act, has the
trust power and authority to conduct its business as described in the
Prospectus.
(ii) The Trust Agreement is a legal, valid and binding agreement
of the Trust and the Trustees, and is enforceable against the Company, as
sponsor, and the Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business Trust Act,
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 of personal
liability extended to shareholders of private, for-profit corporations
organized under the General Corporation Law of the State of Delaware. Such
opinion may note that the holders of Designated Preferred Securities may be
obligated to make payments as set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust Agreement,
the issuance of the Designated Preferred Securities is not subject to
preemptive rights.
(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.
23
(f) Xxxxx Xxxx LLP, counsel to the Underwriter, shall have
furnished to the Underwriter their signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, with respect to the sufficiency of all
corporate procedures and other legal matters relating to this Agreement, the
validity of the Designated Preferred Securities, the Registration Statement, the
Prospectus and such other related matters as 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, and upon the opinions of Xxxxxxx &
Xxxxx, L.L.P and Xxxxxxxx, Xxxxxx and Xxxxxx 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
Deloitte & Touche 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 Bank, 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 and the Bank audited by them and included in the
Registration Statement comply as to form 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
and the Bank 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 and its subsidiary included in the
Registration Statement do not comply as to form 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 and its subsidiary included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company and
its subsidiary, inspection of the minute books of the Company and the Bank
since the date of the latest audited financial statements of the Company
and its subsidiary included in the Registration Statement, inquiries of
officials of the Company and the Bank 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, allowance for loan losses, or net loans
receivable of the Company and its
24
subsidiary, any increase in the consolidated long-term debt, short-
term borrowings, obligations under capital leases or real estate
owned of the Company and its subsidiary, any decreases in
consolidated total assets or shareholders equity of the Company and
its subsidiary, 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 and its subsidiary 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 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, other operating income or net income of
the Company and its subsidiary or in the per share amount of net
income of the Company and its subsidiary, any increase in
consolidated other operating expense of the Company and its
subsidiary, 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 and its subsidiary which appear in the Registration
Statement specified by the Underwriter 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 its subsidiary 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 obligations of the Underwriter
that the Underwriter shall have determined, after discussions with officers of
the Company and the Bank responsible for financial and accounting matters, that
such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect an 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 and its subsidiary
included in the Registration Statement, (y) reflect an adverse change in the
items specified in Clause (iii)(B) above as compared with the corresponding
periods of the prior year or other period specified by the 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.
25
(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 Company 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 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 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 fact, or omits to state any 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 an 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 liabilities or obligations, direct or contingent, or entered into
any transactions not in the ordinary course of business and there has not been
any adverse change in the condition (financial or otherwise) of the Trust.
(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 counsel
to the Underwriter 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. Any certificate signed by an officer
of an Offeror and delivered to the Underwriter pursuant hereto shall also be
deemed to be a representation and warranty of such Offeror to the
26
Underwriter as to the statements made therein. The Offerors shall furnish to the
Underwriter conformed copies of such opinions, certificates, letters and other
documents as the Underwriter may 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 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 fact in the registration statement as originally filed or the
Registration Statement, any Preliminary Prospectus or the Prospectus, or in any
amendment or supplement thereto, 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 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 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 the
Underwriter's Information; provided further, 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
27
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 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 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 shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified party and controlling persons, which firm shall be designated
in writing by the indemnified party. 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
28
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, 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 relative benefits received by the Offerors on the
one hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriter, 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 fact or the omission
or alleged omission to state a 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. The Offerors 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls 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
29
Offeror shall have the same rights to contribution as the Offerors subject in
each case to the preceding sentence. The obligations of the Offerors under this
paragraph (d) shall be in addition to any liability which the Offerors may
otherwise have and the obligations of the 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 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 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 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
adverse change in, or any development which is likely to have an 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 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 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;
30
(f) A banking moratorium shall have been declared by either
federal or Oklahoma 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 an
adverse effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the 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 notices
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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
Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. XxXxxxxxx,
Xx. (with a copy to Xxxxxxx & Xxxxx, L.L.P., 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, III, 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 00000-0000, Attention: Xxxxxxxxx X.
Xxxxxxxx, Esq.).
12. Parties. The Agreement herein set forth is made solely for 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
31
Agreement. The term "successors and assigns" shall not include any purchaser,
in his 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 constitute one and the same Agreement.
32
If the foregoing is in accordance with the Underwriter's 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 the
Underwriter in accordance with its terms.
Very truly yours,
SOUTHWEST BANCORP, INC.
By:
-------------------------------
Name:
Title:
SBI CAPITAL TRUST
By:
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of ____________,1997.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:
----------------------------
Name:
Title:
33
