EXHIBIT 1.1
1,800,000 Preferred Securities
PrivateBancorp Capital Trust I
[____]% Cumulative Trust Preferred Securities
(Liquidation Amount of $10 per Preferred Security)
UNDERWRITING AGREEMENT
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[________], 2001
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
as co-Representative of the Several Underwriters
named in Schedule I hereto
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
as co-Representative of the Several Underwriters
named in Schedule I hereto
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
PrivateBancorp, Inc., a Delaware corporation (the "Company") and its
financing subsidiary, PrivateBancorp Capital Trust I, a Delaware business trust
(the "Trust," and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell to the several underwriters listed on
Schedule I hereto (the "Underwriters"), pursuant to the terms of this Agreement,
1,800,000 of the Trust's [___]% Cumulative Trust Preferred Securities, with a
liquidation amount of $10.00 per preferred security (the "Preferred
Securities"), to be issued under the Trust Agreement (as hereinafter defined),
the terms of which are more fully described in the Prospectus (as hereinafter
defined). The aforementioned 1,800,000 Preferred Securities to be sold to the
Underwriters are herein called the "Firm Preferred Securities." Solely for the
purpose of covering over-allotments in the sale of the Firm Preferred
Securities, the Offerors further propose that the Trust issue and sell to the
Underwriters, at their option, up to an additional 200,000 Preferred Securities
(the "Option Preferred Securities") upon exercise of the over-allotment option
granted in Section 1 hereof. The Firm Preferred Securities and any Option
Preferred Securities are herein collectively referred to as the "Designated
Preferred Securities." You are acting as representatives of the Underwriters and
in such capacity are sometimes herein referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. Sale, Purchase and Delivery of Designated Preferred Securities,
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Description of Designated Preferred Securities.
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(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly,
to purchase from the Trust, at a purchase price of $10.00 per Preferred Security
(the "Purchase Price"), the respective number of Firm Preferred Securities set
forth opposite the name of such Underwriter in Schedule I hereto. Because the
proceeds from the sale of the Firm Preferred Securities will be used to purchase
from the Company its Debentures (as hereinafter defined and as described in the
Prospectus), the Company shall pay to each Underwriter a commission of [$______]
per Firm Preferred Security purchased (the "Firm Preferred Securities
Commission"). In accordance with Section 9 hereof, the Representatives may by
notice to the Company amend Schedule I to add, eliminate or substitute names set
forth therein (other than to eliminate the names of the Representatives) and to
amend the number of firm Preferred Securities to be purchased by any firm or
corporation listed thereon, provided that the total number of Firm Preferred
Securities listed on Schedule I shall equal 1,800,000.
In addition, on the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Trust hereby grants to the Underwriters, severally and not jointly, an option to
purchase all or any portion of the 200,000 Option Preferred Securities, and upon
the exercise of such option in accordance with this Section 1, the Offerors
hereby agree that the Trust shall issue and sell to the Underwriters, severally
and not jointly, all or any portion of the Option Preferred Securities at the
same Purchase Price per share paid for the Firm Preferred Securities. If any
Option Preferred Securities are to be purchased, each Underwriter, severally and
not jointly, agrees to purchase from the Trust that proportion (subject to
adjustment as you may determine to avoid fractional shares) of the number of
Option Preferred Securities to be purchased that the number of Firm Preferred
Securities set forth opposite the name of such Underwriter in Schedule I hereto
(or such number increased as set forth in Section 9 hereof) bears to 1,800,000.
Because the proceeds from the sale of the Option Preferred Securities will be
used to purchase from the Company its Debentures, the Company shall pay to the
Underwriters a commission of [$______] per Option Preferred Security for each
Option Preferred Security purchased (the "Option Preferred Securities
Commission"). The option hereby granted (the "Option") shall expire 30 days
after the date upon which the Registration Statement (as hereinafter defined)
becomes effective and may be exercised only for the purpose of covering over-
allotments which may be made in connection with the offering and distribution of
the Firm Preferred Securities. The Option may be exercised in whole or in part
at any time (but not more than once) by you giving notice (confirmed in writing)
to the Trust setting forth the number of Option Preferred Securities as to which
the Underwriters are exercising the Option and the time, date and place for
payment and delivery of the Global Securities (as hereafter defined) for such
Option Preferred Securities. Such time and date of payment and delivery for the
Option Preferred Securities (the "Option Closing Date") shall be determined by
you, but shall not be earlier than two nor later than five full business days
after the exercise of such Option, nor in any event prior to the Closing Date
(as hereinafter defined). The Option Closing Date may be the same as the Closing
Date.
Payment of the Purchase Price and the Firm Preferred Securities Commission
and delivery of the Global Securities for the Firm Preferred Securities shall be
made at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as shall be
agreed to by you and the Offerors, at 10:00 a.m., St. Louis time, on
[__________], 2001, or at such other time not more than five full business days
thereafter as the Offerors and you shall determine (the "Closing Date"). The
Trust shall deliver or cause to be delivered to you for the account of the
Underwriters against payment to or upon the order of the Trust of the Purchase
Price in federal or other immediately available funds, the Firm Preferred
Securities in the form of one or more permanent global securities in definitive
form (the "Global Securities") deposited with the Property Trustee (as
identified below) as custodian for the Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission and delivery of the Global Securities for such Option Preferred
Securities shall be made on the Option Closing Date at the
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Underwriters' offices, or at such other place as the Offerors and you shall
determine. Upon delivery, the Option Preferred Securities shall be in the form
of one or more Global Securities registered in the name of Cede & Co., as
nominee of DTC. Such payments shall be made to an account designated by the
Trust by wire transfer of same day funds, in the amount of the Purchase Price
therefor, against delivery by or on behalf of the Trust to you for the
respective accounts of the several Underwriters of one or more Global Securities
for the Designated Preferred Securities to be purchased by the Underwriters.
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 three business days after
the date of the contract.
Time shall be of the essence, and delivery of the Global Securities for the
Designated Preferred Securities at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated Preferred
Securities pursuant to an Amended and Restated Trust Agreement among Wilmington
Trust Company, as Delaware Trustee and Property Trustee, the Administrative
Trustees named therein (collectively, the "Trustees"), and the Company, in
substantially the form heretofore delivered to the Underwriters, said Agreement
being hereinafter referred to as the "Trust Agreement." In connection with the
issuance of the Designated Preferred Securities, the Company proposes (i) to
issue its [_____]% Junior Subordinated Debentures due 2031 (the "Debentures")
pursuant to an Indenture, to be dated as of [__________], 2001, between the
Company and Wilmington Trust Company, as trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Preferred Securities pursuant to a
Preferred Securities Guarantee Agreement between the Company and Wilmington
Trust Company, as guarantee trustee (the "Guarantee"), to the extent described
therein.
2. Representations and Warranties.
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The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The reports filed with the Securities and Exchange Commission
(the "Commission") by the Company under the Securities Exchange Act of
1934, as amended (the "1934 Act") and the rules and regulations thereunder
(the "1934 Act Regulations") at the time they were filed with the
Commission, complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading.
(ii) The Offerors have prepared and filed with the Commission a
registration statement on Form S-1 (File Numbers 333-[_____] and 333-
[_____]-01) for the registration of the Designated Preferred Securities,
the Guarantee and up to $20,618,860 aggregate principal amount of
Debentures under the Securities Act of 1933, as amended (the "1933 Act"),
including the related prospectus subject to completion, and one or more
amendments to such registration statement may have been so filed, in each
case in conformity in all material respects with the requirements of the
1933 Act, the rules and regulations promulgated thereunder (the "1933 Act
Regulations") and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations thereunder. Copies of such
registration statement, including any amendments thereto and any documents
incorporated by reference therein, each Preliminary
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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 Representatives. After the execution of this Agreement, the Offerors
will file with the Commission (A) if such registration statement, as it may
have been amended, has been declared by the Commission to be effective
under the 1933 Act, a prospectus in the form most recently included in an
amendment to such registration statement (or, if no such amendment shall
have been filed, in such registration statement), with such changes or
insertions as are required by Rule 430A of the 1933 Act Regulations ("Rule
430A") or permitted by Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)") and as have been provided to and not objected to by the
Representatives prior to (or as are agreed to by the Representatives
subsequent to) the execution of this Agreement, or (B) if such registration
statement, as it may have been amended, has not been declared by the
Commission to be effective under the 1933 Act, an amendment to such
registration statement, including a form of final prospectus, necessary to
permit such registration statement to become effective, a copy of which
amendment has been furnished to and not objected to by the Representatives
prior to (or is agreed to by the Representatives subsequent to) the
execution of this Agreement. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended at
the time when it was or is declared effective under the 1933 Act, including
(1) all financial schedules 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 in all material respects with the requirements of
the 1934 Act and the 1934 Act Regulations, and when read together and with
the other information in the Preliminary Prospectus or Prospectus, as the
case may be, at the time the Registration Statement became or becomes
effective and at the Closing Date and any Option Closing Date, did not or
will not, as the case may be, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. As of the date that each
Preliminary Prospectus was filed with the Commission or as of the date that
the Prospectus and any amendment or supplement thereto was filed with the
Commission (or, if not filed, on the date provided by the Offerors to the
Underwriters in connection with the offering and sale of the Preferred
Securities), as the case may be, no event has or will have occurred which
should have been set forth in an amendment or supplement to any of the
documents incorporated by reference in the Preliminary Prospectus or
Prospectus which has not then been set forth in such an amendment or
supplement.
(iv) No order preventing or suspending the use of any Prospectus
(or, if the Prospectus is not in existence, the Preliminary Prospectus) has
been issued by the Commission, nor has the Commission, to the knowledge of
the Offerors, threatened to issue such an order or instituted
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proceedings for that purpose. Each Preliminary Prospectus, at the time of
filing thereof, (A) complied in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and (B) did not contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty does not apply to
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statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Offerors by any of the Underwriters
expressly for inclusion in the Prospectus beneath the heading
"Underwriting" (such information referred to herein as the "Underwriters'
Information"). Each Preliminary Prospectus and the Prospectus will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval ("▇▇▇▇▇") system, except to the extent permitted by Regulation S-
T.
(v) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the Company's knowledge, threatened by the Commission.
At the Effective Date and at all times subsequent thereto, up to and
including the Closing Date and, if applicable, the Option Closing Date, the
Registration Statement and any post-effective amendment thereto (A)
complied and will comply in all material respects with the requirements of
the 1933 Act, the 1933 Act Regulations and the Trust Indenture Act (and the
rules and regulations thereunder) and (B) did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
not misleading; provided, however, that this representation and warranty
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does not apply to Underwriters' Information. At the Effective Date and at
all times when the Prospectus is required to be delivered in connection
with offers and sales of Designated Preferred Securities, including,
without limitation, the Closing Date and, if applicable, the Option Closing
Date, the Prospectus, as amended or supplemented, (A) complied and will
comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the Trust Indenture Act (and the rules and
regulations thereunder) and (B) did not contain and will not contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty does not apply to
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Underwriters' Information. Since the date that the Registration Statement
was filed with the Commission, no event has or will have occurred which
should have been set forth in an amendment or supplement to the
Registration Statement which has not then been set forth in such an
amendment or supplement. The Registration Statement will be identical to
the electronically transmitted copy thereof filed with the Commission
pursuant to its ▇▇▇▇▇ system, except to the extent permitted by Regulation
S-T.
(vi)
(A) The Company is duly organized, validly existing and in good
standing under the laws of the State of Delaware, 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 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
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the Registration Statement and Prospectus, to issue and sell its
common securities (the "Common Securities") to the Company pursuant to
the Trust Agreement, to issue and sell the Designated Preferred
Securities, to enter into and perform its obligations under this
Agreement and to consummate the transactions herein contemplated; the
Trust has no subsidiaries and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Trust; the Trust has conducted and will conduct no
business other than the transactions contemplated by this Agreement
and described in the Prospectus; the Trust is not a party to or bound
by any agreement or instrument other than this Agreement, the Trust
Agreement among the Administrative Trustees, the Company and
Wilmington Trust Company dated __________, 2000 (the "Original Trust
Agreement") and the agreements and instruments contemplated by the
Trust Agreement and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Trust Agreement
and described in the Prospectus; the Trust is not a party to or
subject to any action, suit or proceeding of any nature; the Trust is
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 the direct and indirect subsidiaries
identified on Exhibit A attached hereto and incorporated herein (the
"Subsidiaries"). The Company owns all of the issued and outstanding stock
of The PrivateBank and Trust Company and The PrivateBank (St. Louis) (the
"Banks") and is the general partner of Private Investment Limited
Partnership I. The Company does not own or control, directly or indirectly,
more than 5% of any class of equity security of any corporation,
association or other entity other than the Subsidiaries. Each Subsidiary is
a corporation, business trust, bank or limited partnership duly organized
or incorporated, as the case may be, validly existing and in good standing
under the laws of its respective jurisdiction of organization. Each such
Subsidiary has full power and authority to own, lease and operate its
properties and to conduct its business as described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the Preliminary Prospectus) and as currently being conducted.
The deposit accounts of the Banks are insured by the Bank Insurance Fund
administered by the Federal Deposit Insurance Corporation (the "FDIC") up
to the maximum amount provided by law; and no proceedings for the
modification, termination or revocation of any such insurance are pending
or, to the knowledge of the Offerors, threatened.
(viii) The Company and each of the Subsidiaries is duly qualified to
transact business as a foreign corporation, bank, limited partnership or
business trust, as the case may be, and is in good standing in each other
jurisdiction in which it owns or leases property or conducts its business
so as to require such qualification except where the failure to so qualify
would, individually or in the aggregate, not have a material adverse effect
on the condition (financial or otherwise), earnings, business, prospects,
shareholders equity or results of operations of the Company and the
Subsidiaries on a consolidated basis. All of the issued and outstanding
shares of capital stock or general partnership interests of the
Subsidiaries (A) have been duly authorized and are validly issued, (B) are
fully paid and nonassessable except to the extent such shares or interests
may be deemed assessable under 12 U.S.C. Section 55 or 12 U.S.C. Section
1831o, and (C) are wholly owned, directly or indirectly, by the Company
free and clear of any security
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interest, mortgage, pledge, lien, encumbrance, restriction upon voting or
transfer, preemptive rights, claim or equity. Except as disclosed in the
Prospectus or, if the Prospectus is not in existence, the Preliminary
Prospectus, or issuable pursuant to compensatory plans or other programs
disclosed in the Prospectus or, if the Prospectus is not in existence, the
Preliminary Prospectus, there are no outstanding rights, warrants or
options to acquire or instruments convertible into or exchangeable for any
capital stock, equity securities or other ownership interests of the
Offerors or the Subsidiaries.
(ix) The capital stock of the Company and the equity securities of
the Trust conform to the description thereof contained in the Prospectus
(or, if the Prospectus is not in existence, the 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 from the Offerors any shares of
capital stock of the Company or equity securities of the Trust. Except as
disclosed in the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus), there are no outstanding rights, options or
warrants to acquire any securities of the Offerors or the Subsidiaries, and
there are no outstanding securities convertible into or exchangeable for
any such securities of the Offerors or the Subsidiaries and no restrictions
upon the voting or transfer of any capital stock of the Company or equity
securities of the Trust pursuant to the Company's articles of incorporation
or bylaws, the Trust Agreement or any agreement or other instrument to
which an Offeror is a party or by which an Offeror is bound.
(x)
(A) The Trust has all requisite power and authority to issue,
sell and deliver the Designated Preferred Securities in accordance
with and upon the terms and conditions set forth in this Agreement,
the Trust Agreement, the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the 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 and paid for in accordance with
this Agreement, will be duly and validly issued and outstanding, will
represent valid fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, will be entitled to the benefits
of the Trust Agreement, 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 Preliminary
Prospectus) and the Trust Agreement. None of the Designated Preferred
Securities, immediately prior to delivery, will be subject to any
security interest, lien, mortgage, pledge, encumbrance, restriction
upon voting or transfer, preemptive rights, claim, equity or other
defect.
(B) The Debentures have been duly and validly authorized, and,
when duly and validly executed, authenticated and issued as provided
in the Indenture and delivered to the Trust pursuant to the Trust
Agreement, will constitute valid and legally binding obligations of
the Company, will be in the form contemplated by, and entitled to the
benefits of, the Indenture, will conform to the description thereof
contained in the Prospectus and will be owned by the Trust free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
restriction upon transfer, preemptive rights, claim or equity.
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(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, enforceable against the Company in
accordance with its terms, and will conform to the description thereof
contained in the Prospectus.
(D) The Agreement as to Expenses and Liabilities between the
Company and the Trust (the "Expense Agreement") has been duly and
validly authorized, and, when duly and validly executed and delivered
by the Company, will constitute a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its
terms, and will conform to the description thereof contained in the
Prospectus.
(xi) The Offerors and the Subsidiaries have complied in all
material respects with all federal, state and local statutes, regulations,
ordinances and rules as now in effect and applicable to the ownership and
operation of their properties or the conduct of their businesses as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) and as currently being conducted, except in each case for any
such noncompliance which would not have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects,
shareholders equity or results of operations of the Company and the
Subsidiaries on a consolidated basis. Neither the Company nor any non-
banking Subsidiary engages directly or indirectly in any activity
prohibited by the Board of Governors of the Federal Reserve System (the
"FRB") or the BHC Act or the regulations promulgated thereunder.
(xii) The Offerors and the Subsidiaries have all material permits,
easements, consents, licenses, franchises and other governmental and
regulatory authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own and lease
their properties and conduct their businesses in the manner described in
and contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the Preliminary Prospectus) and as
currently being conducted in all material respects, except where the
failure to obtain or possess any Permit would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, shareholders equity or results
of operations of the Company and the Subsidiaries on a consolidated basis.
All such Permits are in full force and effect and each of the Offerors and
the Subsidiaries are in all material respects complying therewith, and no
event has occurred that allows, or after notice or lapse of time would
allow, revocation or termination thereof or will result in any other
material impairment of the rights of the holder of any such Permit, subject
in each case to such qualification as may be adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) except where such revocation, termination or impairment would
not, individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), earnings, business, prospects,
shareholders equity or results of operations of the Company and the
Subsidiaries on a consolidated basis. Such Permits contain no restrictions
that would materially impair the ability of the Company or the Subsidiaries
to conduct their businesses in the manner consistent with their past
practices. Neither the Offerors nor any of the Subsidiaries have received
notice or otherwise has knowledge of any proceeding or action relating to
the revocation or modification of any such Permit except where such
revocation, termination or impairment would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, shareholders equity or results
of operations of the Company and the Subsidiaries on a consolidated basis.
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(xiii) Neither of the Offerors nor any of the Subsidiaries are in
breach or violation of their corporate charter, by-laws or other governing
documents (including without limitation, the Original Trust Agreement) in
any material respect. Neither of the Offerors nor any of the Subsidiaries
is, and to the knowledge of the Offerors no other party is, in violation,
breach or default (with or without notice or lapse of time or both) in the
performance or observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license, Permit or any other agreement or instrument to which it
is a party or by which it or any of its properties may be bound, which such
breach, violation or default could have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects,
shareholders equity or results of operations of the Company and the
Subsidiaries on a consolidated basis, and to the knowledge of the Offerors,
no other party has asserted that the Offerors or any of the Subsidiaries is
in such violation, breach or default (provided that the foregoing shall not
apply to defaults by borrowers from the Bank), or (B) except as disclosed
in the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus), any order, decree, judgment, rule or regulation of
any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Offerors
or the Subsidiaries or any of their respective properties the breach,
violation or default of which could have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects,
shareholders equity or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xiv) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated by this Agreement, the
Trust Agreement, the Guarantee, the Indenture, the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus) do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the Offerors or the Subsidiaries
or the Designated Preferred Securities pursuant to, constitute a breach or
violation of, or constitute a default under, with or without notice or
lapse of time or both, any of the terms, provisions or conditions of the
charter or by-laws of the Company or the Subsidiaries, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license, Permit or any other agreement or instrument to which
the Offerors or the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound or any order, decree, judgment,
rule or regulation of any court, arbitrator, government, or governmental
agency or instrumentality, domestic or foreign, having jurisdiction over
the Offerors or the Subsidiaries or any of their respective properties
which conflict, creation, imposition, breach, violation or default would
have either singly or in the aggregate a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects,
shareholders equity or results of operations of the Company 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 Expense
Agreement, the Registration Statement and the Prospectus (or such
Preliminary Prospectus), except such as have been obtained under the 1933
Act and the Trust Indenture Act and from The Nasdaq Stock Market relating
to the listing of the Designated Preferred Securities, and such as may be
required under state securities laws or Interpretations or Rules of the
National Association of Securities Dealers, Inc. ("NASD") in connection
with the purchase and distribution of the Designated Preferred Securities
by the Underwriters.
9
(xv) The Offerors have all requisite 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 and/or subject to bankruptcy, insolvency, reorganization
or similar laws affecting the rights of creditors generally and subject to
general principles of equity and except as any indemnification or
contribution provisions thereof may be limited under applicable securities
laws. Each of the Indenture, the Trust Agreement, the Guarantee and the
Expense Agreement has been duly authorized by the Company, and, when
executed and delivered by the Company on the Closing Date, each of said
agreements will constitute a valid and legally binding obligation of the
Company and will be enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by and/or subject
to bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity
and except as any indemnification or contribution provisions thereof may be
limited under applicable securities laws. Each of the Indenture, the Trust
Agreement and the Guarantee has been duly qualified under the Trust
Indenture Act and will conform to the description thereof contained in the
Prospectus.
(xvi) The Company and the Subsidiaries have good and marketable
title in fee simple to all real property and good title to all personal
property owned by them and material to their business, in each case free
and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except such
as are referred to in the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus) or such as do not materially affect
the value of such property in the aggregate and do not materially interfere
with the use made or proposed to be made of such property; and all of the
leases under which the Company or the Subsidiaries hold real or personal
property are valid, existing and enforceable leases and in full force and
effect with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real or personal
property, and neither the Company nor any of the Subsidiaries is in default
in any material respect of any of the terms or provisions of any material
leases.
(xvii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the Preliminary Prospectus) with
respect to the Company and the Subsidiaries comply in all material respects
with the 1933 Act and the 1933 Act Regulations and present fairly the
consolidated financial position of the Company and the Subsidiaries as of
the dates indicated and the consolidated results of operations, cash flows
and shareholders' equity of the Company and the Subsidiaries for the
periods specified and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis. The selected
consolidated financial data concerning the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or such
Preliminary Prospectus) comply in all material respects with the 1933 Act
and the 1933 Act Regulations, present fairly the information set forth
therein, and have been compiled on a basis consistent with that of the
consolidated financial statements of the Company and the Subsidiaries in
the Registration Statement and the Prospectus (or such Preliminary
Prospectus). The other financial, statistical and numerical information
included in the Registration Statement and the Prospectus (or such
Preliminary Prospectus) are accurate in all
10
material respects, comply in all material respects 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 Preliminary Prospectus), except as otherwise stated
therein:
(A) neither of the Offerors nor any of the Subsidiaries has
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree which is material to the condition (financial or
otherwise), earnings, business, prospects, shareholders equity or
results of operations of the Company and the Subsidiaries on a
consolidated basis;
(B) there has not been any material adverse change in, or any
development which is reasonably likely to have a material adverse
effect on, the condition (financial or otherwise), earnings, business,
prospects, shareholders equity or results of operations of the Company
and the Subsidiaries on a consolidated basis, whether or not arising
in the ordinary course of business;
(C) neither of the Offerors nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions, other than in the ordinary
course of business, prospects which is material to the condition
(financial or otherwise), earnings, business, prospects, shareholders
equity or results of operations of the Company and the Subsidiaries on
a consolidated basis;
(D) neither of the Offerors has declared or paid any dividend,
and neither of the Offerors nor any of the Subsidiaries has become
delinquent in the payment of principal or interest on any outstanding
borrowings;
(E) there has not been any change in the capital stock, equity
securities, long-term debt, obligations under capital leases or, other
than in the ordinary course of business, short-term borrowings of the
Offerors or the Subsidiaries; and
(F) there has not occurred any other event and there has arisen
no set of circumstances required to be disclosed by the 1933 Act or
the 1933 Act Regulations to be disclosed in the Registration Statement
or Prospectus which has not been so set forth in the Registration
Statement or such Prospectus as fairly and accurately summarized
therein.
(xx) Except as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus), no charge, investigation, action, suit or proceeding is
pending or, to the knowledge of the Offerors, threatened, against or
affecting the Offerors or the Subsidiaries or any of their respective
properties before or by any court or any regulatory, administrative or
governmental official, commission, board, agency or other authority or
body, or any arbitrator, wherein an unfavorable decision, ruling or finding
could reasonably be expected to have a material adverse effect on the
consummation of this Agreement or the transactions contemplated herein or
the condition (financial or otherwise), earnings, business,
11
prospects, shareholders equity or results of operations of the Company 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 Preliminary Prospectus) that are not so summarized.
(xxii) Neither of the Offerors has taken, directly or indirectly,
any action designed to result in or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Offerors to facilitate the sale or
resale of the Designated Preferred Securities in violation of the
Commission's rules and regulations, including, but not limited to,
Regulation M, and neither of the Offerors is aware of any such action taken
or to be taken by any affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own, or possess adequate
rights to use, all patents, copyrights, trademarks, service marks, trade
names and other rights necessary to conduct the businesses now conducted by
them in all material respects or as described in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus) and neither the
Company nor the Subsidiaries have received any notice of infringement or
conflict with asserted rights of others with respect to any patents,
copyrights, trademarks, service marks, trade names or other rights which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects,
shareholders equity or results of operations of the Company and the
Subsidiaries on a consolidated basis, and the Offerors do not know of any
basis for any such infringement or conflict.
(xxiv) Except as disclosed in the Prospectus (or, if the Prospectus
is not in existence, the Preliminary Prospectus), no labor dispute
involving the Company or the Subsidiaries exists or, to the knowledge of
the Offerors, is imminent which might be expected to have a material
adverse effect on the condition (financial or otherwise), earnings,
business, prospects, shareholders equity or results of operations of the
Company and the Subsidiaries on a consolidated basis or which is required
to be disclosed in the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus). Neither the Company nor any of the
Subsidiaries have received notice of any existing or threatened labor
dispute by the employees of any of its principal suppliers, customers or
contractors which might be expected to have a material adverse effect on
the condition (financial or otherwise), earnings, business, prospects,
shareholders equity or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxv) The Offerors and the Subsidiaries have timely and properly
prepared and filed all necessary federal, state, local and foreign tax
returns which are required to be filed and have paid all taxes shown as due
thereon and have paid all other taxes and assessments to the extent that
the same shall have become due, except such as are being contested in good
faith or where the failure to so timely and properly prepare and file would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, shareholders equity or results
of operations of the Company and the Subsidiaries on a consolidated basis.
The Offerors have no knowledge of any tax deficiency which has been or
might be assessed against the Offerors or the Subsidiaries which, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
earnings, business, prospects,
12
shareholders equity or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxvi) Each of the material contracts, agreements and instruments
listed, described, or attached as an exhibit to the Company's Annual Report
on Form 10-K for the year ended December 31, 1999, or its Quarterly Reports
on Form 10-Q for the quarters ended March 31, June 30 and September 30,
2000, as filed with the Commission, is in full force and effect and is the
legal, valid and binding agreement of the Offerors or the Subsidiaries,
enforceable against the Offerors or the Subsidiaries, as the case may be,
in accordance with its terms, except as enforcement thereof, may be limited
by and/or subject to bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity, except where the cancellation, termination or
unenforceability does not constitute a material change in the affairs of
the Company and the Subsidiaries on a consolidated basis. Except as
disclosed in the Prospectus (or such Preliminary Prospectus), to the
knowledge of the Offerors, no other party to any such agreement is (with or
without notice or lapse of time or both) in breach or default in any
material respect thereunder.
(xxvii) No relationship, direct or indirect, exists between or among
the Company or the Subsidiaries, on the one hand, and the directors,
officers, trustees, shareholders, customers or suppliers of the Company or
the Subsidiaries, on the other hand, which is required to be described in
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the 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 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 Preliminary Prospectus), there are no contractual
encumbrances or restrictions or material legal restrictions required to be
described therein, on the ability of the Subsidiaries (A) to pay dividends
or make any other distributions on its capital stock or to pay any
indebtedness owed to the Company, (B) to make any loans or advances to, or
investments in, the Company or (C) to transfer any of its property or
assets to the Company.
(xxxi) Neither of the Offerors is an "investment company," an
entity "controlled" by an "investment company" or an "investment adviser"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxxii) The Offerors have not distributed and will not distribute
prior to the Closing Date any prospectus in connection with the offering of
the Designated Preferred Securities, 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 or
on behalf of the Representatives.
(xxxiii) The activities of the Offerors and the Subsidiaries are
permitted under applicable federal and state banking laws and regulations.
The Company has all necessary approvals,
13
including the approval of the Commissioner of the Illinois Office of Banks
and Real Estate (the "IOBRE") and the FRB, as applicable, to own the
capital stock of the Subsidiaries. Neither the Company nor any of the
Subsidiaries is a party or subject to any agreement or memorandum with, or
directive or other order issued by, the FRB, the IOBRE or other regulatory
authority having jurisdiction over it (each, a "Regulator," and
collectively, the "Regulators"), which imposes any restrictions or
requirements not generally applicable to entities of the same type as the
Company and the Subsidiaries. Neither the Company nor any Subsidiary is
subject to any directive from any Regulator to make any material change in
the method of conducting their respective businesses, and no such directive
is pending or threatened by such Regulators.
(xxxiv) The Banks have properly administered all accounts for which
it acts as a fiduciary, including but not limited to accounts for which it
serves as a trustee, agent, custodian, personal representative, guardian,
conservator or investment advisor, in accordance with the terms of the
governing documents and applicable state and federal law and regulation and
common law, except where the failure to be in compliance would not have a
material adverse effect upon the condition (financial or otherwise),
earnings, business, prospects, shareholders equity or results of operations
of the Company and the Subsidiaries on a consolidated basis. Neither of
the Banks nor any of their directors, officers or employees, has committed
any material breach of trust with respect to any such fiduciary account,
and the accountings for each such fiduciary account are true and correct in
all material respects and accurately reflect the assets of such fiduciary
account in all material respects.
(xxxv) The Offerors and the Subsidiaries are in compliance with all
provisions of Section 517.075, Florida Statutes, relating to doing business
with the Government of Cuba or with any person or affiliate located in
Cuba.
(xxxvi) Neither the Company nor any Subsidiary has any liability
under any "pension plan," as defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). The employee benefit plans,
including employee welfare benefit plans, of the Company and each of the
Subsidiaries (the "Employee Plans") have been operated in material
compliance with the applicable provisions of ERISA, the Internal Revenue
Code of 1986, as amended (the "Code"), all regulations, rulings and
announcements promulgated or issued thereunder and all other applicable
governmental laws and regulations (except to the extent such noncompliance
would not, in the aggregate, have a material adverse effect upon the
condition (financial or otherwise), earnings, business, prospects,
shareholders equity or results of operations of the Company and the
Subsidiaries on a consolidated basis). No reportable event under Section
4043(c) of ERISA has occurred with respect to any Employee Plan of the
Company or any of the Subsidiaries for which the reporting requirements
have not been waived by the Pension Benefit Guaranty Corporation. No
prohibited transaction under Section 406 of ERISA, for which an exemption
does not apply, has occurred with respect to any Employee Plan of the
Company or any of the Subsidiaries. There are no pending or, to the
knowledge of the Offerors, threatened, claims by or on behalf of any
Employee Plan, by any employee or beneficiary covered under any such
Employee Plan or by any governmental authority or otherwise involving such
Employee Plans or any of their respective fiduciaries (other than for
routine claims for benefits). All Employee Plans that are group health
plans have been operated in material compliance with the group health plan
continuation coverage requirements of Section 4980B of the Code.
(xxxvii) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred any
liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated thereby.
14
(xxxviii) No report or application filed by the Company or any of its
Subsidiaries with the FRB, the IOBRE or any other state or federal
regulatory authority, as of the date it was filed or amended, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading when made or failed to comply in all material respects with
the applicable requirements of the FRB, the Commission or any other state
or federal regulatory authority, as the case may be.
(xxxix) None of the Offerors, the Subsidiaries or, to the best
knowledge of the Offerors, any other person associated with or acting on
behalf of the Offerors or any of the Subsidiaries, including, without
limitation, any director, officer, agent, or employee of any of the
Subsidiaries or the Company has, directly or indirectly, while acting on
behalf of such Offeror or Subsidiary (i) used any corporate funds for
unlawful contributions, gifts, entertainment, or other unlawful expenses
relating to political activity; (ii) made any unlawful contribution to any
candidate for foreign or domestic office, or to any foreign or domestic
government officials or employees or other person charged with similar
public or quasi-public duties, other than payments required or permitted by
the laws of the United States or any jurisdiction thereof or to foreign or
domestic political parties or campaigns from corporate funds, or failed to
disclose fully any contribution in violation of law; (iii) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv)
made any other payment of funds or either or both of the Offerors or a
Subsidiary or retained any funds which constitute a violation of any law,
rule or regulation or which was or is required to be disclosed in the
Registration Statement or the Prospectus pursuant to the requirements of
the 1933 Act or the 1933 Act Regulations.
(xl) The Company and each of the Subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with management's general
or specific authorizations, (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets,
(C) access to assets is permitted only in accordance with management's
general or specific authorization, and (D) the recorded accounts for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto.
(xli) Except as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus), there is no factual basis for any action, suit or other
proceeding involving the Company or the Subsidiaries or any of their
material assets for any failure of the Company or any of the Subsidiaries,
or any predecessor thereof, to comply with any requirements of federal,
state or local regulation relating to air, water, solid waste management,
hazardous or toxic substances, or the protection of health or the
environment; except where such action, suit or other proceeding would not
have a material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, shareholders equity or results of operations
of the Company and the Subsidiaries on a consolidated basis. Except as
described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus) or as would not
have a material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, shareholders equity or results of operations
of the Company and the Subsidiaries on a consolidated basis, none of the
property owned or leased by the Company or any of the Subsidiaries is
contaminated with any waste or hazardous substances, and neither the
Company nor any of the Subsidiaries may be deemed an "owner or operator" of
a "facility" or "vessel" which owns, possesses, transports, generates or
disposes of a "hazardous substance" as those terms are defined in (S)9601
of the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. (S)9601 et seq.
------
15
(xlii) The Company and the Subsidiaries maintain insurance covering
in all material respects their properties, personnel and business. Such
insurance insures against such losses and risks as, in the judgment of the
executive officers of the Company, are adequate to protect in all material
respects the Company and the Subsidiaries and their businesses. Neither
the Company nor any of the Subsidiaries has received notice from any
insurer or agent of such insurer that substantial capital improvements or
other expenditures shall have to be made in order to continue such
insurance. All such insurance is outstanding and duly in force on the date
hereof and shall be outstanding and duly in force on the Closing Date and,
if applicable, the Option Closing Date, with such exceptions as would not
have a material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, shareholders equity or results of operations
of the Company and the Subsidiaries on a consolidated basis.
(xliii) Neither the Company nor any Subsidiary has any agreement or
understanding with any person (A) concerning the future acquisition by the
Company or the Banks of a controlling interest in any entity or (B)
concerning the future acquisition by any person of a controlling interest
in the Company or any Subsidiary, in either case that is required by the
1933 Act or the 1933 Act Regulations to be disclosed by the Company that is
not disclosed in the Prospectus (or if the Prospectus is not in existence,
the Preliminary Prospectus).
3. Offering by the Underwriters.
----------------------------
After the Registration Statement becomes effective or, if the Registration
Statement is already effective, after this Agreement becomes effective, the
Underwriters propose to offer the Firm Preferred Securities for sale to the
public upon the terms and conditions set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering price
and change the other selling terms, provided the proceeds to the Trust shall not
be reduced as a result of such reduction or change. Because the NASD is
expected to view the Preferred Securities as interests in a direct participation
program, the offering of the Preferred Securities is being made in compliance
with the applicable provisions of Rule 2810 of the NASD's conduct rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by them (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow,
a concession set forth in the Prospectus to certain other brokers and dealers.
4. Certain Covenants of the Offerors.
---------------------------------
The Offerors jointly and severally covenant with the Underwriters as
follows:
(a) The Offerors shall 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
Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such
notice in writing:
16
(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
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities for offering or
sale in any jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offerors shall use their best
efforts to prevent the issuance of any such stop order or of any other such
order and if any such order is issued, to cause such order to be withdrawn
or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to
time without charge, as soon as available, as many copies as the Underwriters
may reasonably request of (i) 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) the Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply to the best of their ability with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Designated
Preferred Securities as contemplated herein and in the Trust Agreement and the
Prospectus. The Offerors shall not file any amendment to the registration
statement as originally filed or to the Registration Statement and shall not
file any amendment thereto or make any amendment or supplement to the
Preliminary Prospectus or to the Prospectus of which you shall not previously
have been advised in writing and provided a copy a reasonable time prior to the
proposed filings thereof or to which you or counsel for the Underwriters shall
reasonably object. If it is necessary, in the Company's reasonable opinion or in
the reasonable opinion of the Company's counsel to amend or supplement the
Registration Statement or the Prospectus in connection with the distribution of
the Designated Preferred Securities, the Offerors shall forthwith amend or
supplement the Registration Statement or the Prospectus, as the case may be, by
preparing and filing with the Commission (provided the Underwriters or counsel
for the Underwriters does not reasonably object), and furnishing to you such
number of copies as you may reasonably request of an amendment or amendments of,
or a supplement or supplements to, the Registration Statement or the Prospectus,
as the case may be (in form and substance reasonably satisfactory to you and
counsel for the Underwriters). If any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus to correct an untrue
statement of a material fact or to include a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or if for any reason it is necessary at any time to amend or
supplement the Prospectus to comply with the 1933 Act and the 1933 Act
Regulations, the Offerors shall, subject to the second sentence of this
subsection (d), forthwith at their cost and expense amend or supplement the
Prospectus by preparing and filing with the Commission, and furnishing to you,
such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory to you and counsel for the Underwriters) so that, as so
17
amended or supplemented, the Prospectus shall not contain an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) The Offerors shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
you may reasonably request and shall continue such qualifications in effect so
long as may be advisable for distribution of the Designated Preferred
Securities; provided, however, that the Offerors shall not be required to
-------- -------
qualify to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the foregoing. The
Offerors shall file such statements and reports as may be required by the laws
of each jurisdiction in which the Designated Preferred Securities have been
qualified as above. The Offerors will notify you promptly of, and confirm in
writing, the suspension of qualification of the Designated Preferred Securities
or threat thereof in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred
Securities to be eligible for clearance and settlement through the facilities of
DTC.
(g) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall
furnish to the Representatives copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the Commission) or with any
national securities exchange or The Nasdaq Stock Market or other self-regulatory
organization and such other documents, reports and information concerning the
business and financial conditions of the Offerors as the Representatives may
reasonably request, other than such documents, reports and information for which
the Offerors has the legal obligation not to reveal to the Representatives.
(j) For a period of 30 days from the Effective Date, the Offerors
shall not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities (other than pursuant to
this Agreement), any other beneficial interests in the assets of the Trust or
any securities of the Trust or the Company that are substantially similar to the
Designated Preferred Securities, 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 your prior written
consent.
(k) The Offerors shall use their best efforts to cause the Designated
Preferred Securities to become quoted on The Nasdaq National Market, or in lieu
thereof a national securities exchange, and to remain so quoted for at least
five years from the Effective Date or for such shorter period as may be
specified in a written consent of the Representatives, provided this shall not
prevent the
18
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 shall use its best efforts to have the Debentures
promptly listed on The Nasdaq National Market or other organization on which the
Designated Preferred Securities are then listed, and to have the Debentures
promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, or take or refrain from taking any
action which will cause or result in any material adverse change in the
financial position, capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the Offerors and
the Subsidiaries on a consolidated basis.
(m) The Offerors shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Representatives, purchase,
redeem or call for redemption, or prepay or give notice of prepayment (or
announce any redemption or call for redemption, or any repayment or notice of
prepayment) of the Offerors' securities.
(n) The Offerors shall not take, directly or indirectly, any action
designed to result in or which constitutes or which might reasonably be expected
to (i) cause or result in stabilization or manipulation of the price of any
security of the Offerors to facilitate the sale or resale of the Designated
Preferred Securities or (ii) otherwise violate the Commission's Regulation M,
and the Offerors are not aware of any such action taken or to be taken by any
affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Offerors will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the
Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities which you shall not previously have been provided a copy a reasonable
time prior to the release thereof or provided reasonable notice thereof and you
shall not have reasonably objected thereto.
(p) The Offerors shall use their best efforts to comply with all
applicable registration, filing and reporting requirements of the 1934 Act for
so long as the Preferred Securities or the Debentures shall remain outstanding.
(q) The Offerors shall inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution of the
Designated Preferred Securities by the Underwriters if either of the Offerors or
any of the Subsidiaries commences engaging in business with the government of
Cuba or with a person or affiliate located in Cuba, with such information to be
provided within 90 days after the commencement thereof or after a change occurs
with respect to previously reported information.
5. Payment of Expenses.
-------------------
Whether or not this Agreement is terminated or the sale of the Designated
Preferred Securities to the Underwriters is consummated, the Company covenants
and agrees that it will pay or cause to be paid (directly or by reimbursement)
all costs and expenses incident to the performance of the obligations of the
Offerors under this Agreement, including:
19
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements);
(b) all fees, expenses and disbursements of the Offerors' counsel and
accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith, not to exceed $3,000;
(d) all fees and expenses incurred in connection with filings made
with the NASD and DTC;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on The Nasdaq Stock Market;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture, the Guarantee and the Expense Agreement;
and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, reasonable fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
offering of the Designated Preferred Securities or the contents of the
Registration Statement, any investigation of the Offerors and the Subsidiaries,
or any preparation for the marketing, purchase, sale or delivery of the
Designated Preferred Securities, in each case following presentation of
reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
20
6. Conditions of the Underwriters' Obligations.
-------------------------------------------
The obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise of the option granted by the
Offerors in Section 1 of this Agreement, the Option Preferred Securities, are
subject, in your sole discretion, to the accuracy of and compliance with the
representations and warranties and agreements of the Offerors herein as of the
date hereof and as of the Closing Date (or in the case of the Option Preferred
Securities, if any, as of the Option Closing Date), to the accuracy of the
written statements of the Offerors made pursuant to the provisions hereof, to
the performance by the Offerors of their covenants and obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Representatives, shall be contemplated
by the Commission or any state authority. Any request on the part of the
Commission or any state authority for additional information (to be included in
the Registration Statement or Prospectus or otherwise) shall have been disclosed
to you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of a fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Trust Agreement, and the
Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and the
Offerors and the Subsidiaries shall have furnished to such counsel all documents
and information relating thereto that they may reasonably request to enable them
to pass upon such matters.
(d) ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Offerors,
shall have furnished to you their signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware, and is duly
registered as a bank holding company under the BHC Act. Each of the
Subsidiaries is duly incorporated or organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization. Each of the Company and the Subsidiaries has full power
(corporate or otherwise) and authority
21
to own or lease its properties and to conduct its business as such business
is described in the Prospectus and is currently conducted in all material
respects. All outstanding shares of capital stock or other ownership
interests of the Subsidiaries have been duly authorized and validly issued
and are fully paid and nonassessable except to the extent such shares or
other ownership interests may be deemed assessable under 12 U.S.C. Section
1831 and, to the best of such counsel's knowledge, except as disclosed in
the Prospectus, there are no outstanding rights, options or warrants to
purchase any such shares or other ownership interests or securities
convertible into or exchangeable for any such shares or other ownership
interests.
(ii) The capital stock of the Company, the Debentures and Guarantee
of the Company and the equity securities of the Trust conform to the
description thereof contained in the Prospectus in all material respects.
To the best of such counsel's knowledge, the capital stock of the Company
authorized and issued as of September 30, 2000 is as set forth under the
caption "Capitalization" in the Prospectus, has been duly authorized and
validly issued, and is fully paid and nonassesable. The form of
certificates to evidence the Designated Preferred Securities has been
approved by the Trust and is in due and proper form and complies with all
applicable requirements. To the best of such counsel's knowledge, there are
no outstanding rights, options or warrants to purchase, no other
outstanding securities convertible into or exchangeable for, and no
commitments, plans or arrangements to issue, any shares of capital stock of
the Company or equity securities of the Trust, except as described in the
Prospectus.
(iii) The issuance, sale and delivery of the Designated Preferred
Securities, and Debentures in accordance with the terms and conditions of
this Agreement and the Indenture have been duly authorized by all necessary
actions of the Offerors. All of the Designated Preferred Securities have
been duly and validly authorized and, when delivered and paid for in
accordance with this Agreement will be duly and validly issued, fully paid
and nonassessable, and will conform to the description thereof in the
Registration Statement, the Prospectus and the Trust Agreement. The
Designated Preferred Securities have been approved for quotation on The
Nasdaq Stock Market subject to official notice of issuance. There are no
preemptive or other rights to subscribe for or to purchase, and other than
as disclosed in the Prospectus no restrictions upon the voting or transfer
of, any equity securities of the Offerors or the Subsidiaries pursuant to
the corporate charter, by-laws or other governing documents (including
without limitation, the Trust Agreement) of the Offerors or the
Subsidiaries, or, to 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 against the Offerors in accordance with its terms,
except as the enforcement hereof or thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or
affecting creditors rights generally and except as the indemnification and
contribution provisions hereof may be limited under applicable laws and
certain remedies may not be available in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act, has been duly
authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable against the Company
in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
22
(vi) The Debentures have been duly authorized, executed, and
delivered by the Company, and, when authenticated by the Indenture Trustee,
will be legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to the effect
of bankruptcy, insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors generally and of
general principles of equity. The holders of the Debentures are entitled to
the benefits of the Indenture.
(vii) The Expense Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding obligation of
the Company enforceable against the Company in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity.
(viii) To 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), except for such violation, breach or
default which will not have a material adverse effect on the Company and
the Subsidiaries taken as a whole. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated by
this Agreement, and the Trust Agreement do not and will not conflict with,
result in the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or
the Subsidiaries or the Designated Preferred Securities pursuant to, or
constitute a material breach or violation of, or constitute a material
default under, with or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws or governing
document (including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or, to the best of such counsel's knowledge,
any material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license or any other agreement or
instrument to which either Offeror or the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or any
order, decree, judgment, franchise, license, Permit, rule or regulation of
any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties which, in each case, is material to the Offerors and
the Subsidiaries on a consolidated basis. No authorization, approval,
consent or order of, or filing, registration or qualification with, any
person (including, without limitation, any court, governmental body or
authority) is required under Delaware or Illinois law in connection with
the transactions contemplated by this Agreement with respect to the
purchase and distribution of the Designated Preferred Securities by the
Underwriters.
(ix) To the best of such counsel's knowledge, holders of securities
of the Offerors do not have any right that, if exercised, would require the
Offerors to cause such securities to be included in the Registration
Statement or have waived such right. To the best of such counsel's
knowledge, neither the Company nor any of the Subsidiaries is a party to
any agreement or other instrument which grants rights for or relating to
the registration of any securities of the Offerors.
(x) Except as set forth in the Registration Statement and the
Prospectus, to the best of such counsel's knowledge, (i) no action, suit or
proceeding at law or in equity is pending or threatened in writing to which
the Offerors or the Subsidiaries is or is threatened to be made a party,
and (ii) no action, suit or proceeding is pending or threatened in writing
against or affecting the Offerors or the Subsidiaries or any of their
properties, before or by any court or governmental official, commission,
board or other administrative agency, authority or body, or any arbitrator,
wherein an unfavorable decision, ruling or finding could reasonably be
expected to have a
23
material adverse effect on the consummation of this Agreement or the
issuance and sale of the Designated Preferred Securities as contemplated
herein or the condition (financial or otherwise), earnings, business,
prospects, shareholders equity or results of operations of the Company and
the Subsidiaries on a consolidated basis or which is required to be
disclosed in the Registration Statement or the Prospectus and is not so
disclosed.
(xi) No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act and the Trust Indenture Act, and
except such as may be required under state securities laws or
Interpretations or Rules of the NASD in connection with the purchase and
distribution of the Designated Preferred Securities by the Underwriters.
(xii) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial statements or
other financial data included therein or omitted therefrom and
Underwriters' Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations as of their respective dates
of effectiveness or issuance.
(xiii) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required to
be described in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed.
(xiv) The statements under the captions "Business," "Regulation and
Supervision," "Description of the Preferred Securities," "Description of
the Debentures," "Description of the Guarantee," "Relationship Among the
Preferred Securities, the Debentures and the Guarantee," "Federal Income
Tax Consequences," and "ERISA Considerations" in the Prospectus, insofar as
such statements constitute a description of legal and regulatory matters,
documents or instruments referred to therein, are accurate descriptions of
the matters purported to be summarized therein in all material respects and
fairly present the information called for with respect to such legal
matters, documents and instruments, other than financial and statistical
data as to which said counsel 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 disclosed in the Prospectus, to the best of such
counsel's knowledge, there are no contractual encumbrances or restrictions,
or material legal restrictions required to be disclosed on the ability of
the Subsidiaries (A) to pay dividends or make any other distributions on
its capital stock or to pay indebtedness owed to the Offerors, (B) to make
any loans or advances to, or investments in, the Offerors or (C) to
transfer any of its property or assets to the Offerors.
(xvii) To the best of such counsel's knowledge, (A) the business and
operations of the Offerors and the Subsidiaries comply in all material
respects with all statutes, ordinances, laws,
24
rules and regulations applicable thereto and which are material to the
Offerors and the Subsidiaries on a consolidated basis, except in those
instances where non-compliance would not materially impair the ability of
the Offerors and the Subsidiaries to conduct their business and would not
have a material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, shareholders equity or results of operations
of the Company and the Subsidiaries on a consolidated basis; and (B) the
Offerors and the Subsidiaries possess and are operating in all material
respects in compliance with the terms, provisions and conditions of all
Permits, consents, licenses, franchises and governmental and regulatory
authorizations ("Authorizations") required to conduct their businesses as
described in the Prospectus and which are material to the Offerors and the
Subsidiaries on a consolidated basis, except in those instances where the
loss thereof or non-compliance therewith would not have a material adverse
effect on the condition (financial or otherwise), earnings, business,
prospects, shareholders equity or results of operations of the Company and
the Subsidiaries on a consolidated basis; to the best of such counsel's
knowledge, all such Authorizations 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 Authorization, 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.
(xviii) Neither the Company nor the Trust is and, after giving effect
to the offering and sale of the Designated Preferred Securities and the
application of the proceeds thereof as described in the Prospectus, neither
the Company nor the Trust will be, an "investment company," an entity
"controlled" by an "investment company" or an "investment adviser" as
defined in the Investment Company Act.
In giving the above opinion, such counsel may state that, insofar as such
opinion involves factual matters, they have relied upon certificates of officers
of the Offerors including, without limitation, certificates as to the identity
of any and all material contracts, indentures, mortgages, deeds of trust, loans
or credit agreements, notes, leases, franchises, licenses or other agreements or
instruments, and all material permits, easements, consents, licenses, franchises
and government regulatory authorizations, for purposes of paragraphs (viii),
(x), (xii), (xiii), (xvi) and (xvii) hereof, and certificates of public
officials. In giving such opinion, such counsel may rely upon the opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Delaware counsel to the Offerors as to
certain matters relating to the Trust and the Designated Preferred Securities
which are governed by Delaware law.
Such counsel shall also confirm that, in connection with the preparation of
the Registration Statement and Prospectus, such counsel has participated in
conferences with officers and representatives of the Offerors and with their
independent public accountants and with you and your counsel, at which
conferences such counsel made inquiries of such officers, representatives and
accountants and discussed in detail the contents of the Registration Statement
and Prospectus and the documents incorporated therein by reference and such
counsel has no reason to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements and related schedules and
statistical data included therein or omitted therefrom or Underwriters'
Information, as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or (B) that the Prospectus or any amendment or supplement thereto and
the documents incorporated therein by reference (except for the financial
statements and related schedules and statistical data included therein or
omitted therefrom or Underwriters' Information, as to which such counsel need
express no opinion), at the time the Registration Statement became effective
(or, if the term "Prospectus" refers to the prospectus first filed pursuant to
Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus was issued),
at the time
25
any such amended or supplemented Prospectus was issued, at the Closing Date and,
if applicable, the Option Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or (C)
that there is any amendment to the Registration Statement required to be filed
that has not already been filed.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act and,
under the Trust Agreement and the Delaware Business Trust Act, has the
trust power and authority to conduct its business as described in the
Prospectus.
(ii) The Trust Agreement is a legal, valid and binding agreement of
the Company, as sponsor, and the Trustees, and is enforceable against the
Company, as sponsor, and the Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business Trust Act,
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 certificate to evidence
the Designated Preferred Securities has been approved by the Trust and is
in due and proper form and complies with all applicable requirements of the
Delaware Business Trust Act.
(v) Holders of Designated Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to shareholders of private, for-profit corporations
organized under the General Corporation Law of the State of Delaware. Such
opinion may note that the holders of Designated Preferred Securities may be
obligated to make payments as set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust Agreement,
the issuance of the Designated Preferred Securities is not subject to
preemptive rights.
(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
26
proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
(f) ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇., counsel for the Underwriters,
shall have furnished you their signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, with respect to the sufficiency of all
corporate procedures and other legal matters relating to this Agreement, the
validity of the Designated Preferred Securities, the Registration Statement, the
Prospectus and such other related matters as you may reasonably request and
there shall have been furnished to such counsel such documents and other
information as they may request to enable them to pass on such matters. In
giving such opinion, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇. 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 ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated the date of this Agreement and the
Closing Date (and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Representatives, confirming that they are
independent public accountants with respect to the Company and the Subsidiaries,
within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in
effect that:
(i) In their opinion, the consolidated financial statements of the
Company audited by them and included or incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1934 Act, the 1933
Act Regulations and the 1934 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to their attention that caused them to believe
that, if applicable, the unaudited interim consolidated financial
statements of the Company included or incorporated by reference in the
Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act, the 1934 Act,
the 1933 Act Regulations and the 1934 Act Regulations or are not in
conformity with U.S. generally accepted accounting principles applied on a
basis substantially consistent, except as noted in the Registration
Statement, with the basis for the audited consolidated financial statements
of the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an audit
in accordance with U.S. generally accepted auditing standards, consisting
of a reading of the unaudited interim financial statements and other
information referred to below, a reading of the latest available unaudited
condensed consolidated financial statements of the Company, inspection of
the minute books of the Company since the date of the latest audited
financial statements of the Company included or incorporated by reference
in the Registration Statement, inquiries of officials of the Company
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
27
(A) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock of the Company, any increase in the consolidated debt of
the Company or any decrease in the consolidated shareholders equity of
the Company or any changes, decreases or increases in other items
specified by the Underwriters, in each case as compared with amounts
shown in the latest unaudited interim consolidated statement of
financial condition of the Company included or incorporated by
reference in the Registration Statement except in each case for
changes, increases or decreases which the Registration Statement
specifically discloses have occurred or may occur or which are
described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements included or incorporated by
reference in the Registration Statement to the specified date referred
to in Clause (iii)(A), there were any decreases in the consolidated
net income of the Company or in the per share amount of net income of
the Company or changes, decreases or increases in other items
specified by the Underwriters as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Underwriters, except in each case for
increases or decreases which the Registration Statement discloses have
occurred or may occur or which are described in such letter.
(iv) In addition to the audit referred to in their report included
or incorporated by reference in the Registration Statement and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (ii) and (iii) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
U.S. generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Underwriters which are derived from the general accounting records and
consolidated financial statements of the Company which appear in the
Registration Statement specified by the Underwriters in the Registration
Statement, and have compared such amounts, percentages and financial
information with the accounting records and the material derived from such
records and consolidated financial statements of the Company and have found
them to be in agreement.
In the event that the letter to be delivered on the date hereof, on the
Closing Date (and, if applicable, any Option Closing Date) referred to above
sets forth any such changes, decreases or increases as specified in Clauses
(iii)(A) or (iii)(B) above, or any exceptions from such agreement specified in
Clause (iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts shown in the latest unaudited
consolidated statement of financial condition of the Company included or
incorporated by reference in the Registration Statement, (y) reflect a material
adverse change in the items specified in Clause (iii)(B) above as compared with
the corresponding periods of the prior year or other period specified by the
Representatives, or (z) reflect a material adverse change in items specified in
Clause (iv) above from the amounts shown in the Preliminary Prospectus
distributed by the Underwriters in connection with the offering contemplated
hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing
Date, you shall have received certificates of the chief executive officer and
the chief financial and accounting officer of the Company, which certificates
shall be deemed to be made on behalf of the Company dated as of the Closing Date
and, if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of
28
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 and, if applicable, the Option
Closing Date; (ii) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition (financial or otherwise), earnings,
business, prospects, shareholders equity or results of operations of the Company
and the Subsidiaries on a consolidated basis; (iii) since such dates there has
not been any material transaction entered into by the Offerors or the
Subsidiaries other than transactions in the ordinary course of business; and
(iv) they have carefully examined the Registration Statement and the Prospectus
as amended or supplemented and nothing has come to their attention that would
lead them to believe that either the Registration Statement or the Prospectus,
or any amendment or supplement thereto as of their respective effective or issue
dates, contained, and the Prospectus as amended or supplemented at such Closing
Date (and, if applicable, the Option Closing Date), contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and (v)
covering such other matters as you may reasonably request. The officers'
certificate of the Company shall further state that no stop order affecting the
Registration Statement is in effect or, to their knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option Closing
Date, you shall have received a certificate of an authorized representative of
the Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date, and since
the most recent date as of which information is given in the Prospectus, except
as contemplated by the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise) of the Trust.
(j) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(k) The NASD, upon review of the terms of the public offering of
the Designated Preferred Securities, shall not have objected to the
Underwriters' participation in such offering.
(l) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Offerors shall have furnished to you and counsel for the
Underwriters all such other documents, certificates and opinions as they have
reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have been
fulfilled when and as required by this Agreement, this Agreement and all of the
Underwriters' obligations hereunder may be terminated by you on notice to the
Company at, or at any time before, the Closing Date or the Option Closing Date,
as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
29
7. Indemnification and Contribution.
--------------------------------
(a) The Offerors agree to jointly and severally indemnify and hold
harmless each Underwriter, each of its directors, officers and agents, and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 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 upon (i) any untrue statement or alleged untrue statement of a material
fact made by the Company or the Trust contained in Section 2 of this Agreement
(or any certificate delivered by the Company or the Trust pursuant to Sections
6(h), 6(i) and 6(l) hereto) or the registration statement as originally filed or
the Registration Statement, any Preliminary Prospectus or the Prospectus, or in
any amendment or supplement thereto, (ii) any omission or alleged omission to
state a material fact in the registration statement as originally filed or the
Registration Statement, the Preliminary Prospectus or the Prospectus, or in any
amendment or supplement thereto, required to be stated therein or necessary to
make the statements therein not misleading, and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation and attorney fees), joint or several, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading or (iv) the enforcement of this indemnification provision
or the contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable legal or other expenses as incurred, but in
no event less frequently than 30 days after each invoice is submitted, incurred
by them in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Offerors shall not be liable in any such
case to the extent, but only to the extent, that any such losses, claims,
damages, liabilities and expenses arise out of or are based upon any untrue
statement or omission or allegation thereof that has been made therein or
omitted therefrom in reliance upon and in conformity with the "Underwriters
Information"; and provided further, that the indemnification contained in this
paragraph with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or of any person controlling any Underwriter) to the
extent any such losses, claims, damages, liabilities or expenses directly
results from the fact that such Underwriter sold Designated Preferred Securities
to a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as amended or supplemented
if any amendments or supplements thereto shall have been furnished to you in
sufficient time to distribute same with or prior to the written confirmation of
the sale involved), if required by law, and if such loss, claim, damage,
liability or expense would not have arisen but for the failure to give or send
such person such document. The foregoing indemnity agreement is in addition to
any liability the Company or the Trust may otherwise have to any such
indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless each Offeror, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls an Offeror within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, to the same extent as required by the foregoing indemnity
from the Company to each Underwriter, but only with respect to the Underwriters
Information. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to any such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the
30
indemnifying party, such indemnified party or controlling person shall promptly
notify the indemnifying party in writing, and the indemnifying party shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of all expenses; provided,
however, that the failure so to notify the indemnifying party shall not relieve
it from any liability which it may have to an indemnified party otherwise than
under such paragraph, and further, shall only relieve it from liability under
such paragraph to the extent prejudiced thereby. Any indemnified party or any
such controlling person shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified party or such
controlling person unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) the indemnifying party has
failed to assume the defense or to employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party or such controlling
person and the indemnifying party and such indemnified party or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to it that are different from or in addition to those
available to the indemnifying party (in which case, if such indemnified party or
controlling person notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party or such controlling person) it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys at any time and for all such indemnified party and
controlling persons, which firm shall be designated in writing by the
indemnified party (and, if such indemnified parties are Underwriters, by you, as
Representatives). Each indemnified party and each controlling person, as a
condition of such indemnity, shall use reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. The indemnifying
party shall not be liable for any settlement of any such action effected without
its written consent, but if there shall be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of each
indemnified party, settle, compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnity may be sought hereunder (whether or not such indemnified party or any
person who controls such indemnified party within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 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
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only
31
the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriters has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Underwriter, and each person
who controls an Offeror within the meaning of the 1933 Act, each officer and
trustee of an Offeror who shall have signed the Registration Statement and each
director of an Offeror shall have the same rights to contribution as the
Offerors subject in each case to the preceding sentence. The obligations of the
Offerors under this paragraph (d) shall be in addition to any liability which
the Offerors may otherwise have and the obligations of the Underwriters under
this paragraph (d) shall be in addition to any liability that the Underwriters
may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Offerors set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter or any person
controlling an Underwriter or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror), (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
32
8. Termination.
-----------
You shall have the right to terminate this Agreement at any time at or
prior to the Closing Date or, with respect to the Underwriters' obligation to
purchase the Option Preferred Securities, at any time at or prior to the Option
Closing Date, without liability on the part of the Underwriters to the Offerors,
if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have sustained
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which in the judgment
of the Representatives materially impairs the investment quality of the
Designated Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which, in the reasonable
judgment of the Representatives, is reasonably likely to have a material adverse
effect on, the condition (financial or otherwise), earnings, business,
prospects, shareholders equity or results of operations of the Company and the
Subsidiaries on a consolidated basis, whether or not arising in the ordinary
course of business;
(d) There has occurred any outbreak or escalation of hostilities or
other calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Representatives, impracticable to market the Designated
Preferred Securities or enforce contracts for the sale of the Designated
Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or The Nasdaq Stock Market shall have been suspended, or minimum
or maximum prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority; or
(f) A banking moratorium shall have been declared by either
federal, Illinois or Missouri authorities; or
(g) Any action shall have been taken by any government in respect
of its monetary affairs which, in the reasonable judgment of the
Representatives, has a material adverse effect on the United States securities
markets so as to make it, in the reasonable judgment of the Representatives,
impracticable to market the Designated Preferred Securities or enforce contracts
for the sale of the Designated Preferred Securities.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. Default of Underwriters.
-----------------------
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting
33
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that the non-defaulting Underwriters shall be under no obligation to purchase
such Designated Preferred Securities if the aggregate number of Designated
Preferred Securities to be purchased by such non-defaulting Underwriters shall
exceed 110% of the aggregate underwriting commitments applicable to such non-
defaulting Underwriters set forth in Schedule I hereto, and provided further,
that no non-defaulting Underwriter shall be obligated to purchase Designated
Preferred Securities to the extent that the number of such Designated Preferred
Securities is more than 110% of such Underwriter's underwriting commitment set
forth in Schedule I hereto.
In the event that the non-defaulting Underwriters are not obligated under
the above paragraph to purchase the Designated Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company do not arrange for the
purchase of any Designated Preferred Securities to which a default relates as
provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
10. Effective Date of Agreement.
---------------------------
If the Registration Statement is not effective at the time of execution of
this Agreement, this Agreement shall become effective on the Effective Date at
the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of this
Agreement, this Agreement shall become effective at the earlier of 11:00 a.m.
St. Louis time, on the first full business day following the day on which this
Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after it has taken any
action which causes this Agreement to become effective.
34
Until such time as this Agreement shall have become effective, it may be
terminated by the Offerors, by notifying you or by you, as Representatives of
the several Underwriters, by notifying either Offeror, except that the
provisions of Sections 5 and 7 shall at all times be effective.
11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters or any termination or cancellation of this Agreement and
shall survive delivery of and payment for the Designated Preferred Securities.
12. Notices.
-------
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of telecommunication and
confirmed. Notices to Offerors shall be sent to Ten North Dearborn Street,
Chicago, Illinois 60602, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇ (with a copy to Vedder, Price,
▇▇▇▇▇▇▇ & Kammholz, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.) and notices to the Underwriters shall be
sent to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇, ▇▇▇▇
& ▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇, Esq.). In all dealings with the Company under this
Agreement, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
Incorporated shall act as representatives of and on behalf of the several
Underwriters, and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made or
given by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
Incorporated on behalf of the Underwriters, as if the same shall have been made
or given in writing by the Underwriters.
13. Parties.
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The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person controlling the Offerors or the
Underwriters, and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, in his status as such
purchaser, from the Underwriters of the Designated Preferred Securities.
14. Governing Law.
-------------
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. Authority.
---------
Any certificate signed by an authorized officer of the Company and
delivered to the Representatives or to counsel for the Underwriters pursuant to
this Agreement shall be deemed a representation and warranty by the Company to
the Underwriters as to the matters covered thereby.
35
16. Counterparts.
------------
This Agreement may be executed by facsimile and in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
PRIVATEBANCORP, INC.
By:___________________________
Name:_________________________
Title:________________________
PRIVATEBANCORP CAPITAL TRUST I
By:___________________________
Name:_________________________
Title:________________________
CONFIRMED AND ACCEPTED,
as of [__________], 2001.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
INCORPORATED INCORPORATED
By:________________________________ By:____________________________
Name:______________________________ Name:__________________________
Title:_____________________________ Title:_________________________
For itself and as co-Representative For itself and as co-Representative
of the several Underwriters named of the several Underwriters named
in Schedule I hereto. in Schedule I hereto.
36
SCHEDULE I
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Underwriter Number of Shares
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
EXHIBIT A
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LIST OF SUBSIDIARIES
The PrivateBank
The PrivateBank and Trust Company
PrivateBancorp Capital Trust I
Private Investment Limited Partnership I
