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Allegiant Bancorp, Inc.
Allegiant Capital Trust I
_________________________
1,725,000 _____% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Trust Preferred Security)
__________ __, 1999
UNDERWRITING AGREEMENT
EVEREN Securities, Inc.
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Allegiant Bancorp, Inc.
Allegiant Capital Trust I
________________________________
1,725,000 _____% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Trust Preferred Security)
UNDERWRITING AGREEMENT
__________ __, 1999
EVEREN Securities, Inc.
Individually and as Representatives of
the Several Underwriters
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Allegiant Bancorp, Inc., a Missouri corporation (the "Company"),
and its fiduciary subsidiary, Allegiant Capital Trust I (the "Trust"
and, together with the Company, the "Offerors"), a statutory business
trust organized under the Delaware Business Trust Act (the "Delaware
Act"), confirm their agreement with the several underwriters listed in
Schedule I hereto (the "Underwriters"), for whom EVEREN Securities, Inc.
has been duly authorized to act as representative, with respect to the
proposed issuance and sale by the Trust of its _____% Cumulative Trust
Preferred Securities (liquidation amount $10 per security) representing
undivided beneficial interests in the assets of the Trust (the "Trust
Preferred Securities"). The Offerors propose that the Trust issue the
Trust Preferred Securities pursuant to an Amended and Restated Trust
Agreement among Bankers Trust Company, as property trustee (the
"Property Trustee"), Bankers Trust (Delaware), as Delaware trustee (the
"Delaware Trustee"), the administrators named therein (the
"Administrators") and the Company (the "Trust Agreement"). The Trust
Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise
pursuant to a Guarantee Agreement (the "Guarantee Agreement") between
the Company and Bankers Trust Company, as trustee (the "Guarantee
Trustee"). The proceeds of the sale of the Trust Preferred Securities
will be combined with the proceeds from the sale by the Trust to the
Company of the Trust's common securities (the "Common Securities") and
will be used to purchase _____%
junior subordinated debentures (the "Subordinated Debentures") issued by
the Company pursuant to an Indenture ("Indenture") between the Company
and Bankers Trust Company, as trustee (the "Indenture Trustee"). The
Offerors hereby confirm their respective agreements with the
Underwriters as follows:
1. The Trust Preferred Securities. The 1,500,000 Trust
Preferred Securities proposed to be sold by the Trust are hereinafter
referred to as the "Firm Securities." The Trust also proposes to grant
to the Underwriters an option to purchase up to 225,000 additional Trust
Preferred Securities (the "Additional Securities") if requested by the
Underwriters as provided in Section 3 hereof. The Firm Securities and
the Additional Securities are herein collectively called the
"Securities."
2. Registration Statement and Prospectus. The Offerors have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations (the "Rules and
Regulations") of the Commission thereunder (collectively, the "Act"),
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), a registration statement on Form S-2 (File Nos. __________ and
__________) including a prospectus, relating to the Securities, the
Subordinated Debentures and the Guarantee Agreement, that may have been
amended; each such amendment was so prepared and filed. The
registration statement, as amended at the time when it became or becomes
effective, including all financial schedules (if any) and exhibits
thereto, all information incorporated therein by reference and all of
the information (if any) deemed to be part of the registration statement
at the time of its effectiveness pursuant to Rule 430A under the Act
("Rule 430A"), is hereinafter referred to as the "Registration
Statement"; the prospectus in the form first provided to the
Underwriters by the Offerors in connection with the offering and sale of
the Securities (whether or not required to be filed pursuant to
Rule 424(b) under the Act ("Rule 424(b)")) is hereinafter referred to as
the "Prospectus," except that if any revised prospectus shall be
provided to the Underwriters by the Offerors for use in connection with
the offering of the Securities that differs from the Prospectus (whether
or not any such revised prospectus is required to be filed by the
Offerors pursuant to Rule 424(b)), the term "Prospectus" shall refer to
the revised prospectus from and after the time it is first provided to
the Underwriters for such use; and each preliminary prospectus included
in the Registration Statement prior to the time it became or becomes
effective is herein referred to as a "Preliminary Prospectus."
3. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject
to the terms and conditions hereof, (i) the Trust agrees to issue and
sell to the Underwriters, at a price of $10.00 per Security (the
"Purchase Price"), 1,500,000 Firm Securities; and (ii) each Underwriter
agrees, severally and not jointly, to purchase from the Trust, at the
Purchase Price, the aggregate number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto. As
compensation to the Underwriters for their commitments hereunder and in
view of the fact that the proceeds of the sale of the Securities
(together with the proceeds from the sale by the Trust to the Company of
the Common Securities)
will be used to purchase the Subordinated Debentures, the Company hereby
agrees to pay at the Closing Date to the Underwriters a commission per
Security equal to $_____ per Security, or $__________ in the aggregate
($__________ if the over-allotment with respect to the Additional
Securities is exercised in full).
On the basis of the representations and warranties contained in
this Agreement, and subject to the terms and conditions hereof, (i) the
Trust agrees to sell to the Underwriters, at the Purchase Price, up to
225,000 Additional Securities; and (ii) the Underwriters shall have the
right to purchase, severally and not jointly, from time to time, up to
an aggregate of 225,000 Additional Securities at the Purchase Price.
Additional Securities may be purchased as provided in Section 4 hereof
solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Securities. If any Additional Securities
are to be purchased, each Underwriter, severally and not jointly, agrees
to purchase the number of Additional Securities that bears the same
proportion to the total number of Additional Securities to be purchased
as the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Securities.
4. Agreements of the Offerors as to Delivery and Payment. The
Offerors agrees with each Underwriter that:
(a) Delivery to the Underwriters of, and payment to the
Trust for, the Firm Securities shall be made at 10:00 A.M.,
Chicago time, on the third (or if the Firm Securities are priced,
as contemplated by Rule 15c6-1(c) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), after 4:30 p.m.
Eastern time, on the fourth) full business day (such time and date
being referred to as the "Closing Date") following the date of the
initial public offering of the Firm Securities as advised to you
by the Company, at such place as you shall designate.
(b) Delivery to the Underwriters of and payment for any
Additional Securities to be purchased by the Underwriters shall be
made at such place as you shall designate, at 10:00 A.M., Chicago
time, on such date or dates (individually, an "Option Closing
Date" and collectively, the "Option Closing Dates"), which may be
the same as the Closing Date but shall in no event be earlier than
the Closing Date, as shall be specified in a written notice from
you to the Offerors of the Underwriters' determination to purchase
a number, specified in said notice, of Additional Securities. Any
such notice may be given at any time within 30 days after the date
of this Agreement.
(c) The Securities will be delivered by the Trust to the
Underwriters on the Closing Date or the applicable Option Closing
Date against payment of the Purchase Price therefor by certified
or official bank check or wire transfer of next-day funds payable
to the order of the Trust to an account designated by the Trust.
Delivery of the Securities may be made by credit through full fast
transfer to the accounts at The Depository Trust Company
designated by you. Certificates
representing the Securities, in definitive form and in such
denominations and registered in such names as you may request in
writing not less than two business days prior to the Closing Date
or the applicable Option Closing Date notice to the Offerors shall
be prepared and will be made available for inspection not later
than 9:30 A.M., Chicago time, on the business day next preceding
the Closing Date or the applicable Option Closing Date, with any
transfer taxes payable upon initial issuance or the transfer
thereof duly paid by the Company for the respective accounts of
the Underwriters against payment of the Purchase Price therefor.
5. Further Agreements of the Offerors. The Offerors also agree
with each Underwriter that:
(a) they will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to
the Registration Statement or, if necessary pursuant to Rule 430A
under the Act, a post-effective amendment to the Registration
Statement, as soon as practicable after the execution and delivery
of this Agreement, and will use their best efforts to cause the
Registration Statement or such post-effective amendment to become
effective at the earliest possible time; and the Offerors will
comply fully and in a timely manner with the applicable provisions
of Rule 424(b) and Rule 430A under the Act;
(b) they will advise you promptly and, if requested by
you, confirm such advice in writing, (i) when the Registration
Statement has become effective, if and when the Prospectus is sent
for filing pursuant to Rule 424 under the Act and when any post-
effective amendment to the Registration Statement becomes
effective, (ii) of the receipt of any comments from the Commission
that relate to the Registration Statement or requests by the
Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement,
or of the suspension of qualification of the Securities for
offering or sale in any jurisdiction, or the initiation or, to the
best knowledge of the Offerors, threat of any proceedings for such
purpose by the Commission or any state securities commission or
other regulatory authority, and (iv) of the happening of any event
or information becoming known during the period referred to in
paragraph (e) below that makes any statement of a material fact
made in the Registration Statement untrue or that requires the
making of any additions to or changes in the Registration
Statement (as amended or supplemented from time to time) in order
to make the statements therein not misleading or that makes any
statement of a material fact made in the Prospectus (as amended or
supplemented from time to time) untrue or that requires the making
of any additions to or changes in the Prospectus (as amended or
supplemented from time to time) in order to make the statements
therein, not misleading; if at any time the Commission shall issue
or institute proceedings (or threaten to institute any such
proceedings) to issue any stop order suspending the effectiveness
of the Registration Statement, or any state securities commission
or
other regulatory authority shall issue or institute proceedings
(or threaten to institute proceedings) to issue an order
suspending the qualification or exemption of the Securities under
any state securities or blue sky laws, the Offerors shall use best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(c) they will furnish to you without charge one signed
copy of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits
filed therewith, and will furnish to you and each Underwriter
designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request;
(d) they will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or make any amendment or supplement to the
Prospectus of which you shall not previously have been advised and
provided a copy a reasonable period of time prior to the filing
thereof or to which you or your counsel shall reasonably object,
and they will prepare and file with the Commission, promptly upon
your reasonable request, any amendment to the Registration
Statement or supplement to the Prospectus that may be necessary or
advisable in connection with the distribution of the Securities by
you in your or your counsel's opinion, and will use best efforts
to cause the same to become effective as promptly as possible;
(e) promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as a
prospectus is required by the Act to be delivered in connection
with the sales by an underwriter or a dealer (in the opinion of
your counsel), they will furnish to each Underwriter and dealer
without charge as many copies of the Prospectus (and any amendment
or supplement to the Prospectus) as such Underwriter or dealer may
reasonably request for the purposes contemplated by the Act, and
the Offerors consent to the use of the Prospectus and any
amendment or supplement thereto by any Underwriter or any dealer,
both in connection with the offering or sale of the Securities and
for such period of time thereafter as the Prospectus is required
by the Act to be delivered in connection therewith;
(f) if during the period specified in paragraph (e) any
event shall occur or information become known as a result of which
in the opinion of your counsel it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein
as of the date the Prospectus is delivered to a purchaser, in
light of the circumstances under which such statements were made,
not misleading, or it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and,
subject to paragraph 5(d) above, they will file with the
Commission at the sole expense of the Company an appropriate
amendment or supplement to the Prospectus so that the statements
of any
material facts in the Prospectus, as so amended and supplemented,
will not when it is so delivered, in light of the circumstances
under which such statements are made, be misleading, or so that
the Prospectus will comply with law and it will furnish to the
Underwriters and to such dealers as the Underwriters shall
specify, at the sole expense of the Company, such number of copies
thereof as such Underwriters or dealers may reasonably request;
(g) prior to any public offering of the Securities, it
will cooperate with you and counsel for the Underwriters in
connection with the registration or qualification of the
Securities for offer and sale by the several Underwriters and by
dealers under the state securities or blue sky laws of such
jurisdictions as you may request (provided that the Offerors shall
not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to take any
action which would subject them to general consent to service of
process in any jurisdiction in which they are not now so subject),
and the Offerors will continue such qualification in effect so
long as required by law for the distribution of the Securities and
will file such consents to service of process or other documents
as may be necessary in order to effect such registration or
qualification (provided that the Offerors shall not be obligated
to take any action that would subject it to general consent to
service of process in any jurisdiction in which they are not now
so subject);
(h) they will not, prior to the exercise in full or
termination or expiration of the option to purchase the Option
Securities, incur any liability or obligation, direct or
contingent, or enter into any material transaction, other than in
the ordinary course of business, except as contemplated by the
Prospectus;
(i) they will mail and make generally available to their
security holders and furnish to the Underwriters as soon as
reasonably practicable a consolidated earnings statement covering
a period of at least 12 months beginning after the "effective
date" (as defined in Rule 158 under the Act) of the Registration
Statement (but in no event commencing later than 90 days after
such date) that will satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder, and will advise you in writing
when such statement has been made so available;
(j) during the period of five years after the date of this
Agreement, they will furnish to you a copy (i) as soon as
practicable after the filing thereof, of each report filed by
either of the Offerors with the Commission, any securities
exchange or the National Association of Securities Dealers, Inc.
("NASD"); (ii) as soon as practicable after the release thereof,
of each material press release in respect of either of the
Offerors; (iii) as soon as available, of each report of the
Company mailed to shareholders; and (iv) as soon as available,
such other publicly available information concerning the Offerors
as you may reasonably request;
(k) whether or not the transactions contemplated hereby
are consummated or this Agreement becomes effective as to all of
its provisions or is terminated, to pay all costs, fees, expenses
and taxes incident to the performance by the Offerors of their
obligations hereunder, including (i) the preparation, printing,
filing and distribution under the Act of the Registration
Statement (including financial statements and exhibits), each
Preliminary Prospectus and all amendments and supplements to any
of them prior to or during the period specified in paragraph
(e) above of this Section 5, (ii) the word processing,
reproduction and distribution of this Agreement, the Blue Sky
Survey and any other agreements, memoranda, correspondence and
other documents prepared and delivered by the Underwriters or
their counsel in connection with the offering of the Securities
(including in each case any disbursements of counsel for the
Underwriters relating to such preparation and delivery), (iii) the
registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states,
including in each case the fees and disbursements of counsel for
the Underwriters, relating to such registration or qualification
and memoranda relating thereto, (iv) filings and clearance with
the NASD in connection with the offering and sale of the
Securities, (v) the listing of the Securities on the American
Stock Exchange ("AMEX"), (vi) furnishing such copies of the
Registration Statement, each Preliminary Prospectus, the
Prospectus and all amendments and supplements thereto as may be
requested for use in connection with the offering or sale of the
Securities by the Underwriters or by dealers to whom the
Securities may be sold, (vii) obtaining the opinions to be
provided pursuant to Sections 8(f), 8(g) and 8(h) of this
Agreement and (viii) the performance by the Offerors of all of
their other obligations under this Agreement; if the sale of the
Securities provided for herein is not consummated because the
Underwriters exercise their right to terminate this Agreement
pursuant to Section 9 hereof and any of the following have
occurred during the term of this Agreement: (a) there has been any
material adverse change in the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company, or (b)
either Offeror shall refuse or be unable to comply with any
provision hereof (except as the result of a breach of this
Agreement by the Underwriters), the Company will promptly
reimburse the Underwriters upon demand for all reasonable out-of-
pocket expenses (including the fees and disbursements of counsel
for the Underwriters) that shall have been incurred by the
Underwriters in connection with the proposed purchase and sale of
Securities;
(l) they will use the net proceeds received by them from
the sale of the Securities and the Subordinated Debentures in the
manner specified in the Prospectus and will file such reports with
the Commission with respect to the application of the proceeds
therefrom as may be required in accordance with Rule 463 under the
Act and will furnish you copies of any such reports as soon as
practicable after the filing thereof;
(m) if, at the time of effectiveness of the Registration
Statement, any information shall have been omitted therefrom in
reliance upon Rule 430A, then immediately following the execution
and delivery of this Agreement, they will prepare, and file or
transmit for filing with the Commission in accordance with such
Rule 430A and Rule 424(b), copies of an amended prospectus, or, if
required by such Rule 430A, a post-effective amendment to the
Registration Statement (including an amended prospectus),
containing all information so omitted;
(n) they will cause the Securities to be listed, subject
to notice of issuance or sale, on AMEX and will comply with all
registration, filing and reporting requirements of AMEX;
(o) they will not take, directly or indirectly, any action
designed to or which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any
security of either Offeror to facilitate the sale or resale of the
Securities;
(p) they will inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution
of the Securities by the Underwriters if either of them commences
engaging in business with the government of Cuba or with any
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; and
(q) they will use its best efforts to do and perform all
things required to be done and performed under this Agreement by
them prior to or after the Closing Date or any Option Closing
Date, as the case may be, and to satisfy all conditions precedent
to the delivery of the Securities.
6. Representations and Warranties.
(a) The Offerors jointly and severally represent and
warrant to, and agree with, each Underwriter as of the date
hereof, the Closing Date and each Option Closing Date (except for
such representations that are specified as being made as of a
particular date) as follows:
(i) The Commission has not issued any order
preventing or suspending the use of any Preliminary
Prospectus relating to the proposed offering of the
Securities nor instituted or threatened any proceedings for
that purpose. The Registration Statement, on the date it
was or is declared effective by the Commission, each
Preliminary Prospectus, on the date of the filing thereof
with the Commission, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof 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 securities) and
at the Closing Date and each Option Closing Date conformed
or will conform with the requirements of the Act, the Rules
and Regulations and the Trust Indenture Act and the rules
and regulations thereunder. The Registration Statement, on
the date it was or is declared effective by the Commission,
upon the filing or first delivery to the Underwriters of the
Prospectus (or any supplement to the Prospectus) and at the
Closing Date and each Option Closing Date did not or will
not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
each Preliminary Prospectus; and on the date of the filing
thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing
thereof 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 Securities) and at the
Closing Date and each Option Closing Date did not and will
not include an untrue statement of material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided that the foregoing shall not apply to statements in
or omissions from the Registration Statement and the
Prospectus made or omitted in reliance upon, and in
conformity with, information relating to the Underwriters
furnished in writing to the Offerors by or on behalf of the
Underwriters with your consent expressly for use therein.
The Offerors hereby acknowledge for all purposes under this
Agreement that (A) the statements set forth under the
caption "Underwriting" in the Prospectus and (B) the
stabilization legend on page __ of the Prospectus constitute
the only written information furnished to the Offerors by or
on behalf of the Underwriters for use in the preparation of
the Registration Statement or the Prospectus or any
amendment or supplement thereto.
(ii) The Company has been duly organized and is a
validly existing corporation in good standing under the laws
of Missouri and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the
"BHC Act"), supervised by the Board of Governors of the
Federal Reserve System (the "FRB"). Allegiant Bank (the
"Bank"), Allegiant Real Estate Investment Trust (the
"REIT"), Allegiant Investment Company ("AIC"), Allegiant
Insurance Services Co. ("AISC") and Xxxxxx Road, Inc.
(together with the Bank, the REIT, AIC and AISC,
collectively, the "Subsidiaries") and the Trust constitute
the only subsidiaries of the Company. Each Subsidiary has
been duly organized and is validly existing and in good
standing under the laws of its jurisdiction of incorporation
or organization, as the case may be. Each of the Company
and its Subsidiaries has full power and authority, corporate
or otherwise, to own or lease its properties and assets and
to conduct its business as
described in the Registration Statement and the Prospectus
and is duly qualified to do business and in good standing in
each jurisdiction in which it owns or leases real property
or in which the conduct of its business or the ownership or
leasing of property requires such qualification, except
where the failure to be so qualified, either individually or
in the aggregate, would not have a material adverse effect
on the condition (financial or otherwise), business, assets,
prospects, net worth or results of operations of the Trust,
the Company and the Subsidiaries, taken as a whole (a
"Material Adverse Effect"). Other than the Trust and the
Subsidiaries, the Company owns no capital stock or other
equity, ownership or proprietary interest in any company,
partnership, association, trust or other entity. The
accounts of the Bank are insured by the Bank Insurance Fund
of the Federal Deposit Insurance Corporation (the "FDIC") up
to the maximum applicable amount in accordance with the
rules and regulations of the FDIC, and no proceedings for
the termination or revocation of such membership or
insurance are pending, or to the best knowledge of the
Offerors, threatened.
(iii) The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Act with full trust power and authority to own
property and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and
perform its obligations under this Agreement, the
Securities, the Common Securities and the Trust Agreement
and is authorized to do business in each jurisdiction in
which such qualification is required, except where the
failure to so qualify would not have a Material Adverse
Effect. The Trust has conducted and will conduct no
business other than the transactions contemplated by the
Trust Agreement and described in the Prospectus. The Trust
is not a party to or otherwise bound by any agreement other
than those described in the Prospectus. The Trust is and
will be classified for United States federal income tax
purposes as a grantor trust and not as an association
taxable as a corporation. The Trust is and will be treated
as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(iv) Except as contemplated in the Prospectus,
subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus,
(A) none of the Offerors or the Subsidiaries has incurred
any material liabilities or obligations, direct or
contingent, or entered into any material transactions not in
the ordinary course of business, nor purchased any of its
outstanding capital stock or declared, paid or otherwise
made any dividend or distribution of any kind on its capital
stock or otherwise, and (B) there has not been any material
adverse change in either Offeror's or any Subsidiary's
condition (financial or otherwise),
business, affairs, prospects or results of operations or any
material change in their respective capital stock, short-
term debt or long-term debt.
(v) The Subordinated Debentures have been duly
authorized by the Company and at the Closing Date will have
been duly executed by the Company and, when authenticated in
the manner provided in the Indenture and delivered against
payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms, except as enforceability of the same may be limited
by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and
by general equity principles, will be in the form
contemplated by, and entitled to the benefits of, the
Indenture and will conform in all material respects to the
statements relating thereto in the Prospectus.
(vi) The Common Securities have been duly
authorized by the Trust and, when issued and delivered by
the Trust to the Company against payment therefor as
described in the Registration Statement and Prospectus, will
be validly issued and (subject to the terms of the Trust
Agreement) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and will conform to all
statements relating thereto contained in the Prospectus.
The issuance of the Common Securities is not subject to
preemptive or other similar rights. At the Closing Date all
of the issued and outstanding Common Securities of the trust
will be directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(vii) The Securities have been duly authorized by
the Trust Agreement and, when issued and delivered pursuant
to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and non-
assessable undivided beneficial interests in the Trust, will
be entitled to the benefits of the Trust Agreement and will
in all material respects conform to the statements relating
thereto contained in the Prospectus. The issuance of the
Securities is not subject to preemptive or other similar
rights. Holders of Securities will be entitled to the same
limitation of personal liability under Delaware law as
extended to stockholders of a private corporation for
profit.
(viii) Each of this Agreement, the Indenture, the
Trust Agreement and the Guarantee Agreement has been duly
authorized, executed and delivered by the Company and/or the
Trust, as the case may be, and constitutes a legal, valid
and binding obligation of the Company and/or the Trust, as
the case may be, enforceable in accordance with its terms,
except as enforceability of the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights
generally and by general equity principles. Each Offeror
has full power and authority to enter into this Agreement,
the Indenture, the Trust Agreement and the Guarantee
Agreement, as the case may be, and, in the case of the
Trust, to authorize, issue and sell the Securities as
contemplated by this Agreement, and each of the Indenture
and the Trust Agreement has been duly qualified under the
Trust Indenture Act and will conform in all material
respects to the statements relating thereto in the
Registration Statement and the Prospectus.
(ix) Neither the Company nor any Subsidiary is in
violation of its respective charter or by-laws. The Trust
is not in violation of the Trust Agreement or its
certificate of trust filed with the State of Delaware on
__________, 1999 (the "Certificate of Trust"). Neither
Offeror nor any Subsidiary is in violation of or in breach
of or in default in (nor has any event occurred that with
notice or lapse of time, or both, would be a breach of or a
default in) the performance of any obligation, agreement or
condition contained in any agreement, lease, contract,
permit, license, franchise agreement, mortgage, loan
agreement, debenture, note, deed of trust, bond, indenture
or other evidence of indebtedness or any other instrument or
obligation (collectively, "Obligations and Instruments") to
which any of them is a party or by which any of them or any
of their respective properties or assets is bound or
affected (except for such contravention or default as would
not have a Material Adverse Effect). Neither Offeror nor
any Subsidiary is in violation of any statute, judgment,
decree, order, rule or regulation (collectively, "Laws")
applicable to any of them or any of their respective
properties or assets that, alone, or together with other
violations of Laws would result in a Material Adverse
Effect. To the best knowledge of the Offerors, no other
party under any contract or other agreement to which either
Offeror or any Subsidiary is a party is in material default
thereunder except for such defaults as would not
individually or in the aggregate result in a Material
Adverse Effect.
(x) The execution, delivery and performance of
this Agreement, the Indenture, the Trust Agreement and the
Guarantee Agreement and the consummation of the transactions
contemplated hereby or thereby will not, alone or upon
notice or the passage of time or both, (A) require any
consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other
governmental body or third party (except such as may be
required under the Act and the securities or blue sky laws
of the various states or by the NASD), (B) result in the
creation or imposition of any lien, charge or encumbrance
upon any of the properties or assets of either Offeror
pursuant to the terms and provisions of any Obligation or
Instrument, (C) conflict with or constitute a breach or
default under any Obligation or Instrument to which either
Offeror is a party or by which either of them or any of
their respective properties or assets is bound
(except for such creation, conflict, breach or default as
would not have a Material Adverse Effect), or conflict with
or result in a breach or violation of any of the terms and
provisions of the Company's charter or by-laws, the Trust's
Trust Agreement or its Certificate of Trust, or (D) assuming
compliance with the Act and all applicable state securities
or Blue Sky laws, violate or conflict with any Laws
applicable to the Company or any of its properties or assets
(except for such violation or conflict as could not have a
Material Adverse Effect). No action, suit or proceeding
before any court or arbitrator or any governmental body,
agency or official (domestic or foreign) is pending against
or, to the best knowledge of the Offerors, threatened
against either Offeror, that, if adversely determined, could
reasonably be expected to in any manner invalidate this
Agreement, the Indenture, the Trust Agreement or the
Guarantee Agreement.
(xi) Except as set forth in the Prospectus, there
is no action, suit, proceeding, inquiry or investigation,
governmental or otherwise, before any court, arbitrator or
governmental agency or body (collectively, "Proceedings")
pending to which either Offeror or any Subsidiary is a party
or to which any of their respective properties or assets are
subject, that, if determined adversely to them, might result
in a Material Adverse Effect, or that seeks to restrain,
enjoin, prevent the consummation of or otherwise challenge
the issuance or sale of any of the Securities to be sold
hereunder, and, to the best knowledge of the Offerors, no
such Proceedings are threatened or contemplated.
(xii) There is no contract, document, agreement or
transaction to which either Offeror or any Subsidiary is a
party, or that involved or involves any of them or any of
their respective properties or assets that is required to be
described in or filed as exhibits to the Registration
Statement or the Prospectus by the Act or the Rules and
Regulations that have not been so described or filed.
(xiii) No action has been taken with respect to
either Offeror, and, to the best knowledge of the Offerors,
no statute, rule, regulation or order has been enacted,
adopted or issued by any governmental agency that suspends
the effectiveness of the Registration Statement, prevents or
suspends the use of any Preliminary Prospectus or the
Prospectus or suspends the sale of the Securities in any
jurisdiction referred to in Section 5(g) hereof. No
injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been
issued with respect to either Offeror that might prevent the
issuance of the Securities, suspend the effectiveness of the
Registration Statement, prevent or suspend the use of any
Preliminary Prospectus or the Prospectus or suspend the sale
of the Securities in any jurisdiction referred to in
Section 5(g) hereof; and every request of the Commission, or
any securities
authority or agency of any jurisdiction, for additional
information (to be included in the Registration Statement or
the Prospectus or otherwise) has been complied with in all
material respects.
(xiv) All of the issued and outstanding shares of
capital stock of the Company are duly authorized and are
validly issued, fully paid and non-assessable, have been
issued in compliance with all federal and state securities
laws, were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or
purchase securities, and the holders thereof are not subject
to personal liability by reason of being such holders. The
capital stock of the Company conforms to the description
thereof in the Registration Statement and Prospectus under
the caption "Capitalization." Except as otherwise stated in
the Registration Statement and Prospectus, there are no
preemptive rights or other rights to subscribe for or to
purchase, or any restriction upon the voting or transfer of,
any shares of the Company's capital stock pursuant to the
Company's charter, by-laws or any agreement or other
instrument to which the Company is a party to by which the
Company is bound. Neither the filing of the Registration
Statement nor the offering or sale of the Subordinated
Debentures or Securities as contemplated by this Agreement
gives, rise to any rights for or relating to the
registration of any shares of capital stock of the Company.
All of the issued and outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and the Company
owns of record and beneficially, free and clear of any
securities interests, claims, liens, proxies, equities or
other encumbrances, all of the issued and outstanding shares
of such stock. Except as described in the Registration
Statement and the Prospectus, there are no options,
warrants, agreements, contracts or other rights in existence
to purchase or acquire from the Company or any Subsidiary
any shares of the capital stock of the Company or such
Subsidiary.
(xv) The Indenture, the Trust Agreement and the
Guarantee Agreement are in substantially the respective
forms filed as exhibits to the Registration Statement.
(xvi) The Company's obligations under the Guarantee
Agreement are subordinated and junior in right of payment to
all [SENIOR INDEBTEDNESS] (as defined in the Indenture) of
the Company.
(xvii) The Subordinated Debentures are subordinate
and junior in right of payment to all [SENIOR INDEBTEDNESS]
of the Company.
(xviii) Each of the Administrators is an employee of
the Company and has been duly authorized by the Company to
execute and deliver the Trust Agreement.
(xix) Neither Offeror nor any Subsidiary has
violated any foreign, federal, state or local law or
regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws")
that, in each case or in the aggregate, might result in a
Material Adverse Effect. None of the property owned or
leased by either Offeror or any Subsidiary is contaminated
with any waste or hazardous substances, nor may either
Offeror or any Subsidiary be deemed an "owner or operator"
of a "facility" or "vessel" that owns, possesses,
transports, generates, discharges or disposes of a
"hazardous substance" as those terms are defined in Section
9601 of the Comprehensive Response Compensation and
Liability Act of 1980, U.S.C. Section 9601 et seq.
(xx) Each of the Company and the Subsidiaries is
in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). No "reportable
event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) which could have a
material adverse effect on the general affairs, management,
financial position stockholders' equity or results of
operations of the Company and its Subsidiaries for which the
Company or any Subsidiary would have any liability. Neither
the Company nor any Subsidiary has incurred or expects to
incur liability under (A) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan," or
(B) Sections 412 or 4971 of the Internal Revenue Code or
1986, as amended , including the regulations and published
interpretations thereunder (the "Code"), in each case which
could have a Material Adverse Effect. Each "pension plan"
for which the Company or any Subsidiary would have any
liability that is intended to be qualified under Section
501(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification,
except for such losses as would not have a Material Adverse
Effect.
(xxi) The Offerors and the Subsidiaries hold such
permits, licenses, franchises and authorizations of
governmental or regulatory authorities or third parties
("Permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own,
lease and operate their respective properties and assets and
to conduct their respective businesses, except where the
failure to have any such Permit would not have a Material
Adverse Effect. The Offerors and the Subsidiaries have
fulfilled and performed all of their respective material
obligations with respect to such Permits, and no event has
occurred that allows, or after notice or lapse of time or
both, would allow revocation or termination thereof or
result in any other material impairment of the rights of the
holder of any such Permit.
(xxii) Neither of the Offerors nor any Subsidiary is
an "investment company", a company "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").
(xxiii) The Offerors and the Subsidiaries have good
and marketable title, free and clear of all liens, claims,
encumbrances and restrictions (except liens for taxes not
yet due and payable) to all property and assets described in
the Registration Statement as being owned by them, except as
described or referred to in the Prospectus. All leases to
which either Offeror or any Subsidiary is a party are
subsisting, valid and binding and no default of such Offeror
or Subsidiary or, to the best knowledge of the Offerors, any
other person has occurred or is continuing thereunder that
might result in a Material Adverse Effect. Such Offeror or
Subsidiary enjoys peaceful and undisturbed possession under
all such leases to which they are a party as lessee with
such exceptions as do not materially interfere with the use
made thereof by such Offeror or Subsidiary.
(xxiv) The Offerors and the Subsidiaries maintain
reasonably adequate insurance for the conduct of their
respective businesses in accordance with prudent business
practices with reputable third-party insurers.
(xxv) Ernst & Young LLP and BDO Xxxxxxx, LLP, the
accounting firms that have certified or reviewed, or shall
certify or review, the financial statements and supporting
schedules filed or to be filed with the Commission as part
of the Registration Statement and the Prospectus, are
independent public accounting firms with respect to the
Trust, the Company and the Subsidiaries as required by the
Act.
(xxvi) The consolidated financial statements of the
Company, together with related notes and schedules of the
Company included in the Registration Statement and the
Prospectus, comply in all material respects with the
requirements of the Act and the Exchange Act, are accurate
and present fairly the financial position, results of
operations and cash flows of the Company at the indicated
dates and for the indicated periods. Such financial
statements of have been prepared in accordance with
generally accepted accounting principles ("GAAP")
consistently applied throughout the periods involved, and
all adjustments necessary for a fair presentation of results
for such periods have been made. The summary and selected
financial and operating data included in the Registration
Statement and the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent
with the audited financial statements included therein.
(xxvii) No holder of any security of either Offeror
has any right to require inclusion of any such security in
the Registration Statement. There are no preemptive rights
with respect to the offering being made by the Prospectus.
(xxviii) No labor dispute with the employees of either
Offeror or any Subsidiary exists, or to the best knowledge
of the Offerors, is imminent, that could result in a
Material Adverse Effect.
(xxix) Each of the Offerors and each Subsidiary has
filed or caused to be filed, or has properly filed
extensions for, all foreign, federal, state and local
income, value added and franchise tax returns and has paid
all taxes and assessments shown thereon as due, except for
such taxes and assessments as are disclosed or adequately
reserved against and that are being contested in good faith
by appropriate proceedings, promptly instituted and
diligently conducted. All material tax liabilities are
adequately provided for on the books of such Offeror or
Subsidiary, and there is no material tax deficiency that has
been or might be asserted against any of them that is not so
provided for.
(xxx) The Offerors and the Subsidiaries own or
possess, or can acquire on reasonable terms, the patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and or
unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade
names (collectively, "Patents and Proprietary Rights")
currently employed by they in connection with the businesses
they now operate except where the failure to so own, possess
or acquire such Patents and Proprietary Rights would not
have a Material Adverse Effect. Neither of the Offerors nor
any Subsidiary has received any notice or is otherwise aware
of any infringement of or conflict with asserted rights of
others with respect to any Patent or Proprietary Rights
that, if the subject of any unfavorable decision, ruling or
finding, singly or in the aggregate, could result in a
Material Adverse Effect.
(xxxi) Each Offeror and each Subsidiary is
conducting and intends to conduct its business so as to
comply in all material respects with applicable federal,
state, local and foreign government Laws, except where the
failure to comply would not have a Material Adverse Effect.
Except as set forth in the Registration Statement and the
Prospectus, neither of the Offerors nor any Subsidiary is
charged with or, to the best knowledge of the Offerors,
under investigation with respect to, any material violation
of any such Laws.
(xxxii) Neither Offeror has taken or will take,
directly or indirectly, any action designed to or which has
constituted or that might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security
of either Offeror to facilitate the sale or resale of the
Securities.
(xxxiii) None of the Offerors, any Subsidiary nor, to
the best knowledge of the Offerors, any employee or agent of
any of them has made any payment of funds of such Offeror or
Subsidiary or received has retained any funds in violation
of any Law, rule or regulation (including, without
limitation, the Foreign Corrupt Practices Act) or of a
character required to be disclosed in the Prospectus.
Neither of the Offerors nor any Subsidiary has, at any time
during the past five years, (A) made any unlawful
contributions to any candidate for any political office, or
failed fully to disclose any contribution in violation of
law, or (B) made any unlawful payment to state, federal or
foreign government officer or officers, or other person
charged with similar public or quasi-public duty.
(xxxiv) Each of the Company and the Subsidiaries
maintains a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP
and to maintain asset accountability, and (iii) access to
assets is permitted only in accordance with management's
general or specific authorization.
(xxxv) The Offerors have not distributed and will
not distribute any prospectus or other offering material in
connection with the offering and sale of the Securities
other than any Preliminary Prospectus or the Prospectus or
other materials permitted by the Act to be distributed by
the Company.
(xxxvi) Other than as contemplated by this Agreement
or described in the Registration Statement, neither Offeror
has 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 hereby.
(xxxvii) The Bank is in good standing with the
Division of Finance of the State of Missouri (the "Division
of Finance"); each of the other Subsidiaries is in good
standing with the Secretary of State of its state of
incorporation; and the activities of the Company and the
Subsidiaries are permitted under applicable federal and
state banking laws and regulations. The Company has all
necessary approvals, including the approvals of the
Office of the Comptroller of the Currency (the "OCC"), the
Division of Finance 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 order issued
by, the FRB, the Division of Finance, the OCC, the FDIC or
other regulatory authority having jurisdiction over it (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.
(xxxviii) The Offerors expect that the Securities
will qualify as "tier 1" capital (as defined in 12 C.F.R.
Part 325 and subject to the limitations set forth therein).
(xxxix) The Bank has properly administered, in all
material respects, 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. Neither the Bank nor any of its directors, officers or
employees has committed any material breach of trust with
respect to any such fiduciary account, and the accountings
for each such fiduciary account are true and correct in all
material respects and accurately reflect the assets of such
fiduciary account in all material respects.
(xl) The conditions for use of Form S-2, as set
forth in the General Instructions thereto, have been
satisfied.
(xli) The Offerors and the Subsidiaries are in
compliance with all provisions of Section 1 of Florida
Statutes, Section 517.075, An Act Relating to Disclosure of
Doing Business with Cuba.
(b) Any certificate signed by any officer of the Company
or a trustee of the Trust and delivered to you or to counsel for
the Underwriters shall be deemed a representation and warranty
jointly and severally made by the Offerors to each Underwriter as
to the matters covered thereby and shall be deemed incorporated
herein in its entirety and shall be effective as if such
representation and warranty were made herein.
7. Indemnification.
(a) The Offerors jointly and severally agree to indemnify
and hold harmless each of the Underwriters and each person, if
any, who controls each of the Underwriters within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (the
"indemnified parties") from and against any and all losses,
claims, damages, liabilities and judgments caused by, arising out
of, related to or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (as amended or supplemented if the Offerors shall have
furnished any amendments or supplements thereto), including the
information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A, if applicable, or the
Prospectus or any Preliminary Prospectus or caused by any omission
or alleged omission to state therein 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; provided, however, that the Offerors shall not be
liable in any such case to the extent that such losses, claims,
damages, liabilities or judgments are caused by an untrue
statement or omission made or omitted in reliance upon, and in
conformity with, information relating to the Underwriters
furnished in writing to the Offerors by or on behalf of the
Underwriters with your consent expressly for use therein.
(b) In case any action shall be brought against any of the
indemnified parties, based upon any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be
sought against the Offerors, such indemnified parties shall
promptly notify the Offerors in writing (but the failure so to
notify shall not relieve the Offerors of any liability that they
may otherwise have to such indemnified parties under this
Section 7 (although the Offerors' liability to an indemnified
party may be reduced on a monetary basis to the extent, but only
to the extent, they have been prejudiced by such failure on the
part of such indemnified party)) and the Offerors shall promptly
assume the defense thereof, including the employment of counsel
satisfactory to such indemnified party and payment of all fees and
expenses. The indemnified parties shall each have the right to
employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall
be at the expense of such indemnified parties unless (i) the
employment of such counsel shall have been specifically authorized
by the Offerors, (ii) the Offerors shall have failed to assume
promptly the defense or to employ counsel reasonably satisfactory
to such indemnified party or (iii) the named parties to any such
action (including any impleaded parties) include both the
indemnified parties and the Offerors, and an indemnified party
shall have been advised by counsel that there may be one or more
legal defenses available to one or more of the indemnified parties
that are different from or additional to those available to the
Offerors (in which case the Offerors shall not have the right to
assume the defense of such action on behalf of such indemnified
party, it being understood, however, that the Offerors 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 fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel)
for the indemnified parties, which firm shall be designated in
writing by you, and that all such fees and expenses shall be
reimbursed promptly as they are incurred). The Offerors shall not
be liable for any settlement of any such action effected without
their written consent, which consent shall not be unreasonably
withheld, but if settled with the written consent of the Offerors,
the Offerors agree to indemnify and hold harmless the indemnified
parties from and against any and all loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph,
the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 10 business days
after delivery by registered or certified mail to the proper
address for notice to such indemnifying party of the aforesaid
request (whether or not such delivery is accepted) and (ii) such
indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional and complete release in
writing of such indemnified party from any and all liability on
claims that are the subject matter of such proceeding, which such
settlement shall be in form and substance satisfactory to the
indemnified party. The indemnification provided in this Section 7
will be in addition to any liability which the Offerors may
otherwise have.
(c) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless the Offerors and their directors,
officers and trustees who sign the Registration Statement and any
person controlling the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Offerors to the Underwriters but
only with reference to information stated in or omitted from the
Registration Statement, the Prospectus or any Preliminary
Prospectus in reliance upon, and in conformity with, information
relating to the Underwriters furnished in writing to the Offerors
by or on behalf of the Underwriters with your consent expressly
for use therein. In case any action shall be brought against the
Offerors or any other such person based on the Registration
Statement, the Prospectus or any Preliminary Prospectus and in
respect of which indemnity may be sought against the Underwriters,
the Underwriters shall have the rights and duties given to the
Offerors by Section 7(b) hereof (except that if the Offerors shall
have assumed the defense thereof, such Underwriter shall not be
required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such
Underwriter), and the Offerors and such other persons shall have
the rights and duties given to the "indemnified parties" by
Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7
is for any reason unavailable to an indemnified party or
insufficient to hold such indemnified party harmless in respect of
any losses, claims, damages, liabilities or judgments 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 and judgments (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 Securities or (ii) if the allocation provided
in clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the
other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims,
damages, liabilities or judgments, 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 and sale of the Securities (before deducting
expenses) received by the Offerors on the one hand, and the total
underwriting discounts and commissions received by the
Underwriters on the other, bears to the total price to the public
of the Securities, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Offerors
and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or the alleged omission to state a
material fact relates to information supplied by the Offerors or
the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(d)
were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to
in the immediately preceding paragraph 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 Section 7, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise
paid or been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligation in this
Section 7(d) to contribute are several in proportion to the
respective amount of Securities purchased hereunder by each
Underwriter and not joint.
8. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the Closing Date and the Option Securities on any Option
Closing Date are subject to the fulfillment of each of the following
conditions on or prior to the Closing Date and each Option Closing Date:
(a) All the representations and warranties of the Offerors
contained in this Agreement and in any certificate delivered
hereunder shall be true and correct on the Closing Date and each
Option Closing Date with the same force and effect as if made on
and as of the Closing Date or Option Closing Date, as applicable,
except for any such representations and warranties made as of a
specified date, which shall be true and correct as of such date.
The Offerors shall not have failed at or prior to the Closing Date
or Option Closing Date, as applicable, to perform or comply in all
respects with any of the agreements herein contained and required
to be performed or complied with by them at or prior to the
Closing Date or Option Closing Date, as applicable.
(b) If the Registration Statement is not effective at the
time of the execution and delivery of this Agreement, the
Registration Statement shall have become effective (or, if a post-
effective amendment is required to be filed pursuant to Rule 430A
under the Act, such post-effective amendment shall have become
effective) not later than 4:30 P.M., Chicago time, on the date
immediately following the date of this Agreement or such later
time as you may approve in writing or, if the Registration
Statement has been declared effective prior to the execution and
delivery hereof in reliance on Rule 430A, the Prospectus shall
have been filed as required hereby, if necessary; and at the
Closing Date and each applicable Option Closing Date, no stop
order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall
have been commenced or shall be pending before or, to the best
knowledge of the Underwriters and the Offerors, threatened by the
Commission. Every request for additional information on the part
of the Commission shall have been complied with to the
Underwriters' satisfaction. No stop order suspending the sale of
the Securities in any jurisdiction referred to in Section 5(g)
shall have been issued, and no proceeding for that purpose shall
have been commenced or shall be pending or threatened.
(c) The Securities shall have been qualified for sale
under the blue sky laws of such states as shall have been
specified by you.
(d) The legality and sufficiency of the authorization,
issuance and sale or transfer and sale of the Securities
hereunder, the execution and delivery of this Agreement and all
corporate proceedings and other legal matters incident thereto,
and the form of the Registration Statement and the Prospectus
(except financial statements) shall have been approved by counsel
for the Underwriters exercising reasonable judgment, and no
Underwriter shall have advised the Company that the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of material fact, or omits
to state a fact that in your opinion is material and is required
to be stated therein or is necessary to make the statements
therein not misleading.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any material change, or
any material development involving a prospective change, in or
affecting particularly the business or properties of the Offerors
or the Subsidiaries, whether or not arising in the ordinary course
of business, that, in your judgment, makes it impractical or
inadvisable to proceed with the public offering or purchase of the
Securities as contemplated hereby.
(f) You shall have received an opinion (satisfactory to
you and your counsel) dated the Closing Date or the Option Closing
Date, as the case may be, of Xxxxxxxx Xxxxxx LLP, counsel for the
Offerors, to the effect that:
(i) The Company has been duly organized and is a
validly existing corporation in good standing under the laws
of Missouri. Each of the Subsidiaries been duly organized
and is facility existing as a bank or other entity in good
standing under the laws under which it was organized. Each
of the Company and the Subsidiaries has all necessary power
and authority, corporate or otherwise, to own, lease and
operate their respective properties and assets and to
conduct their respective businesses as described in the
Registration Statement and the Prospectus, and each is duly
qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which its ownership or
lease or real property or the conduct of its business makes
such qualification necessary and in which the failure to so
qualify could have a Material Adverse Effect.
(ii) Each Offeror has all necessary power and
authority, corporate, trust or otherwise, to enter into and
perform this Agreement, the Indenture, the Trust Agreement
and the Guarantee Agreement, as applicable, and to effect
the transactions contemplated hereby or thereby. The
performance of the Offerors' respective obligations
hereunder and under the Indenture, the Trust Agreement and
the Guarantee Agreement, as applicable, have been duly
authorized by all necessary action. This Agreement, the
Indenture, the Trust Agreement and the Guarantee
Agreement have been duly executed and delivered by and on
behalf of the Trust and/or the Company, as applicable, and,
assuming due authorization, execution and delivery of such
agreements by the other parties thereto, constitute legal,
valid and binding agreements of the Trust and/or the
Company, as applicable, enforceable in accordance with their
respective terms, except as enforceability of the same may
be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws of general
applicability relating to or affecting creditors' rights
generally and by general equity principles. No approval,
consent, order, authorization, designation, declaration or
filing by or with any regulatory, administrative or other
governmental body or, to the best of such counsel's
knowledge, after due inquiry, third party, is necessary in
connection with the execution and delivery of this
Agreement, the Indenture, the Trust Agreement or the
Guarantee Agreement and the consummation of the transactions
contemplated herein or therein or as contemplated by the
Prospectus (other than as may be required by the Trust
Indenture Act, the NASD or as required by state securities
or blue sky laws, as to which such counsel need express no
opinion) except such as have been obtained or made, with
counsel specifying the same.
(iii) The authorized, issued and outstanding
capital stock of the Company is as set forth in the
Prospectus under "Capitalization." All of the shares of
outstanding capital stock of the Company have been duly
authorized and validly issued, are fully paid and non-
assessable and were not issued in violation of any
preemptive rights or, to the best of such counsel's
knowledge, other rights to subscribe for or purchase
securities. Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's
knowledge, no options, warrants or other rights to convert
any obligation into, or exchange any securities for, shares
of capital stock or ownership interests in the Company are
outstanding.
(iv) To the best of such counsel's knowledge,
after due inquiry, neither the filing of the Registration
Statement or any amendment thereto nor the offer and sale of
the Securities to the Underwriters as contemplated by this
Agreement gives rise to any rights, nor do any rights exist,
for or relating to the registration under the Act of any
securities of either Offeror.
(v) The Registration Statement has become
effective under the Act, the Prospectus has been filed as
required by this Agreement, if necessary, and to the best of
such counsel's knowledge: (a) after telephonic inquiry of
the Commission, no stop order suspending the effectiveness
of the Registration Statement has been issued, and (b) no
proceedings for that purpose are pending or have been
initiated or threatened by the Commission. The Registration
Statement (including the information deemed to be part of
the Registration Statement at the time of
effectiveness pursuant to Rule 430A, if applicable), the
Prospectus and each amendment or supplement thereto (except
for the financial statements and other statistical or
financial data included therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations.
(vi) The descriptions in the Registration
Statement and Prospectus of contracts, instruments and other
documents filed as exhibits to the Registration Statement,
and the description of legal and governmental proceedings,
are accurate in all material respects, and such counsel does
not know of any Proceedings required to be described in the
Prospectus that are not described, or of any contracts or
documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that were not
described and filed as required.
(vii) Neither the filing of the Registration
Statement or any amendment nor the execution and performance
of this Agreement, the Indenture, the Trust Agreement or the
Guarantee Agreement, nor the consummation of the
transactions contemplated herein or therein, will contravene
any of the provisions of, or result in a default under (nor,
to the best of such counsel's knowledge, has any event
occurred which with notice or lapse of time, or both, would
constitute a breach or default under), any Obligations and
Instruments to which the Trust or the Company is a party or
by which their property is bound (except for such
contravention or default which would not have a Material
Adverse Effect), or violate any of the provisions of the
charter or by-laws of the Company or the Certificate of
Trust of the Trust, or violate any Laws known to such
counsel.
(viii) Neither the Trust, the Company nor any
Subsidiary is an "investment company" or a company
controlled by an "investment company" within the meaning of
the Investment Company Act.
(ix) The statements in the Prospectus under the
caption "Description of Preferred Securities," "Description
of Junior Subordinated Debentures," "Description of
Guarantee" and "Relationship among the Preferred Securities,
the Junior Subordinated Debentures and the Guarantee,"
insofar as such statements constitute matters of law
applicable to the Offerors or summaries of documents, fairly
present the information required to be included therein in
all material respects.
(x) All of the issued and outstanding Common
Securities of the Trust are owned by the Company, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right.
(xi) Each of the Indenture and the Trust Agreement
has been duly qualified under the Trust Indenture Act.
(xii) The Subordinated Debentures are subordinate
and junior in right of payment to all [SENIOR INDEBTEDNESS]
(as defined in the Indenture) of the Company.
(xiii) No Tax Event, Capital Treatment Event or
Investment Company Event (each as defined in the Indenture)
has occurred.
(xiv) The statements set forth in the Prospectus
under the caption "Certain Federal Income Tax Consequences"
constitute a fair and accurate summary of the matters
addressed therein, based upon current law and the
assumptions stated or referred to therein.
(xv) To the best of such counsel's knowledge and
information after due inquiry, the Trust is not required to
be authorized to do business in any other jurisdiction, and
the Trust is not a party to or otherwise bound by any
agreement other than those described in the Prospectus.
In addition, such counsel shall state that they have
participated in conferences with officers and other
representatives of the Offerors, representatives of the
independent public accountants of the Company and representatives
of the Underwriters and their counsel, at which the contents of
the Registration Statement and the Prospectus and related matters
were discussed and, although such counsel is not passing upon, and
does not assume any responsibility for, the accuracy, completeness
or fairness of the statements contained in the Registration
Statement and the Prospectus (except as set forth above) and has
not made any independent check or verification thereof, on the
basis of the foregoing (relying as to materiality upon the
statements of officers and other representatives of the Company),
no facts have come to such counsel's attention that lead such
counsel to believe that either the Registration Statement or any
amendment (including any post-effective amendment) thereto at the
time such Registration Statement or amendment became effective,
and as of the Closing Date and any applicable Option Closing Date,
contained or contains an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that
the Prospectus or any amendment or supplement thereto as of their
respective dates and as of the Closing Date and any applicable
Option Closing Date contained or contains an untrue statement of a
material fact or omitted or omits 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, except that such counsel need express no opinion
with respect to the financial statements, schedules and other
financial data included in the Registration Statement or the
Prospectus.
(g) You shall have received an opinion (satisfactory to
you and your counsel) dated the Closing Date or the Option Closing
Date, as the case may be, of __________, counsel for the Property
Trustee under the Trust Agreement, the Indenture Trustee under the
Indenture and the Guarantee Trustee under the Guarantee Agreement,
to the effect that:
(i) Bankers Trust Company is duly incorporated
and is validly existing in good standing as a banking
corporation under the laws of the State of New York. Bankers
Trust (Delaware) is duly incorporated and is validly
existing in good standing as a banking corporation under the
laws of the State of Delaware.
(ii) Each of Bankers Trust Company and Bankers
Trust (Delaware) has the power and authority to execute,
deliver and perform their respective obligations under the
Indenture, the Trust Agreement and the Guarantee Agreement,
as the case may be.
(iii) Each of the Indenture, the Trust Agreement
and the Guarantee Agreement has been duly authorized,
executed and delivered by Bankers Trust Company and/or
Bankers Trust (Delaware), as the case may be, and
constitutes a legal, valid and binding obligation of Bankers
Trust Company and/or Bankers Trust (Delaware), as the case
may be, enforceable against them in accordance with their
respective terms.
(iv) The execution, delivery and performance by
Bankers Trust Company and/or Bankers Trust (Delaware) of the
Indenture, Trust Agreement and the Guarantee Agreement, as
the case may be, do not conflict with or constitute a breach
of the charter or by-laws of Bankers Trust Company or
Bankers Trust (Delaware), as the case may be.
(v) No consent, approval or authorization of, or
registration with or notice to, any governmental authority
or agency of the States of New York or Delaware or the
United States governing the banking or trust powers of
Bankers Trust Company or Bankers Trust (Delaware) is
required for the execution, delivery or performance by
Bankers Trust Company and/or Bankers Trust (Delaware) of the
Indenture, the Trust Agreement or the Guarantee Agreement,
as the case may be.
(h) You shall have received an opinion (satisfactory to
you and your counsel) dated the Closing Date or the Option Closing
Date, as the case may be, of _________, special Delaware counsel
for the Offerors, 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 Act, and all filings
required as of the date hereof under the Delaware Act with
respect to the creation and valid existence of the Trust as
a business trust have been made.
(ii) Under the Trust Agreement and the Delaware
Act, the Trust has the trust power and authority to own
property and to conduct its business, all as described in
the Prospectus.
(iii) The Trust Agreement constitutes a valid and
binding obligation of the Company and each of the Property
Trustee and the Administrators, and is enforceable against
the Company and each of the Property Trustee and the
Administrators in accordance with its terms.
(iv) Under the Trust Agreement and the Delaware
Act, the Trust has the trust power and authority (i) to
execute and deliver, and to perform its obligations under,
this Agreement, and (ii) to issue, and to perform its
obligations under, the Securities and the Common Securities.
(v) Under the Trust Agreement and the Delaware
Act, the execution and delivery by the trust of this
Agreement, and the performance by it of its obligations
hereunder, have been duly authorized by all necessary trust
action on the part of the Trust.
(vi) The Securities and the Common Securities have
been duly authorized by the Trust Agreement and are duly and
validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of the Trust. The
respective holders of the Securities and the Common
Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware.
(vii) Under the Trust Agreement and the Delaware
Act, the issuance of the Securities and the Common
Securities is not subject to preemptive or similar rights.
(viii) The issuance and sale by the Trust of the
Securities and the Common Securities, the purchase by the
Trust of the Subordinated Debentures, the execution,
delivery and performance by the Trust of this Agreement, the
consummation by the Trust of the transactions contemplated
by this Agreement and compliance by the Trust with its
obligations under this Agreement do not violate (A) any of
the provisions of the Certificate of Trust or the Trust
Agreement, or (B) any applicable Delaware law or
administrative regulation.
(i) You shall have received an opinion of Xxxxxx
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx, counsel for the
Underwriters, dated the Closing Date or the Option Closing Date,
as the case may be, in form and substance reasonably satisfactory
to you.
(j) You shall have received, in connection with the
execution of this Agreement and on the Closing Date and each
Option Closing Date, a "cold comfort" letter from Xxxxx & Young
LLP and BDO Xxxxxxx, LLP, dated as of each such date, in form and
substance satisfactory to you, with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus.
(k) You shall have received from the Company a
certificate, signed by the Chief Executive Officer and Chief
Financial Officer of the Company, addressed to the Underwriters
and dated the Closing Date or Option Closing Date, as applicable,
to the effect that:
(i) such officers do not know of any Proceedings
instituted, threatened or contemplated against the Company
of a character required to be disclosed in the Prospectus
that are not so disclosed, and such officers do not know of
any material contract required to be filed as an exhibit to
the Registration Statement which is not so filed;
(ii) such officers have carefully examined the
Registration Statement and the Prospectus and all amendments
or supplements thereto and, in the opinion of such officers,
such Registration Statement or such amendment as of its
effective date and as of the Closing Date, and the
Prospectus or such supplement as of its date and as of the
Closing Date, did not contain an untrue statement of
material fact or omit to state a material fact required to
be stated therein or necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading and, in the opinion of
such officers, since the effective date of the Registration
Statement, no event has occurred or information become known
that should have been set forth in an amendment to the
Registration Statement or a supplement to the Prospectus
which has not been so set forth in such amendment or
supplement;
(iii) the representations and warranties of the
Company set forth in Section 6(a) of this Agreement are true
and correct as of the date of this Agreement and as of the
Closing Date or the Option Closing Date, as the case may be
(except for any such representations and warranties made as
of a specified date, which shall be true and correct as of
such date), and the Company has complied with all the
agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to such Closing Date;
and
(iv) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the Registration
Statement or any amendment thereto; no stop order suspending
the effectiveness of the Registration Statement has been
issued, and, to the best knowledge of such officers, no
proceedings for that purpose have been instituted or are
pending or contemplated under the Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty
of the Company as to the facts required in the immediately
foregoing clauses (iii) and (iv) of this subparagraph to be set
forth in said certificate.
(l) You shall have received from the Trust a certificate,
signed by the Administrators, addressed to the Underwriters and
dated the Closing Date or Option Closing Date, as applicable, to
the effect that:
(i) such persons have carefully examined the
Registration Statement and the Prospectus and all amendments
or supplements thereto and, in the opinion of such persons,
such Registration Statement or such amendment as of its
effective date and as of the Closing Date, and the
Prospectus or such supplement as of its date and as of the
Closing Date, did not contain an untrue statement of
material fact or omit to state a material fact required to
be stated therein or necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading and, in the opinion of
such persons, since the effective date of the Registration
Statement, no event has occurred or information become known
that should have been set forth in an amendment to the
Registration Statement or a supplement to the Prospectus
which has not been so set forth in such amendment or
supplement;
(ii) the representations and warranties of the
Trust set forth in Section 6(a) of this Agreement are true
and correct as of the date of this Agreement and as of the
Closing Date or the Option Closing Date, as the case may be
(except for any such representations and warranties made as
of a specified date, which shall be true and correct as of
such date), and the Trust has complied with all the
agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to such Closing Date;
and
(iii) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the Registration
Statement or any amendment thereto; no stop order suspending
the effectiveness of the Registration Statement has been
issued, and, to the best knowledge of the respective
signers, no
proceedings for that purpose have been instituted or are
pending or contemplated under the Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty
of the Trust as to the facts required in the immediately foregoing
clauses (ii) and (iii) of this subparagraph to be set forth in
said certificate.
(m) You and your counsel shall have received on or before
the Closing Date or the Option Closing Date, as the case may be,
such further documents, opinions, certificates and schedules or
instruments relating to the business, corporate, legal and
financial affairs of the Offerors as you and they shall have
reasonably requested from the Offerors.
9. Termination and Defaults. This Agreement may be terminated
at any time prior to the Closing Date and any exercise of the option to
purchase Additional Securities may be cancelled at any time prior to any
Option Closing Date by the Underwriters by written notice to the
Offerors if any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, any material adverse change or development involving a
prospective material adverse change in the condition, financial or
otherwise, of the Company, the Subsidiaries and the Trust, taken as a
whole, or the earnings, affairs, management, or business of the Company,
the Subsidiaries and the Trust, taken as a whole, whether or not arising
in the ordinary course of business, that would, in your sole judgment,
make it impracticable to market the Securities on the terms and in the
manner contemplated in the Prospectus, (ii) any outbreak or escalation
of hostilities or other national or international calamity or crisis or
change in economic conditions or in the financial markets of the United
States that, in your sole judgment, is material and adverse and would,
in your sole judgment, make it impracticable to market the Securities on
the terms and in the manner contemplated in the Prospectus, (iii) the
suspension or material limitation of trading in securities on AMEX,
(iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or
other governmental authority that in your opinion materially and
adversely affects, or will materially and adversely affect, the business
or operations of the Company, the Subsidiaries and the Trust, taken as a
whole, (v) the declaration of a banking moratorium by either federal or
Missouri state authorities, (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary
or fiscal affairs that in your opinion has a material adverse effect on
the financial markets in the United States or (vii) any change in
financial markets or in political, economic or financial conditions
which, in your sole opinion, either renders it impracticable or
inadvisable to proceed with the offering and sale of the Securities on
the terms set forth in the Prospectus or materially adversely affects
the market for the Securities.
If on the Closing Date or on any Option Closing Date, as the case
may be, any of the Underwriters shall fail or refuse to purchase the
Firm Securities or Additional
Securities, as the case may be, which it has agreed to purchase
hereunder on such date, and the aggregate number of Firm Securities or
Additional Securities, as the case may be, that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase
does not exceed, in the aggregate, 10% of the total number of Securities
that all Underwriters are obligated to purchase on such date, each non-
defaulting Underwriter shall be obligated, in the proportion which the
number of Firm Securities set forth opposite its name in Schedule I
hereto bears to the total number of Firm Securities or Additional
Securities, as the case may be, that all the non-defaulting Underwriters
have agreed to purchase, or in such other proportion as you may specify,
to purchase the Firm Securities or Additional Securities, as the case
may be, that such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date. If, on the Closing Date or
on the Option Closing Date, as the case may be, any of the Underwriters
shall fail or refuse to purchase the Firm Securities or Additional
Securities, as the case may be, in an amount that exceeds, in the
aggregate, 10% of the total number of the Securities, and arrangements
satisfactory to you and the Offerors for the purchase of such Securities
are not made within 48 hours after such default, this Agreement shall
terminate without liability on the part of the non-defaulting
Underwriters and the Offerors, except as otherwise provided in this
Section 9. In any such case that does not result in termination of this
Agreement, either you or the Offerors may postpone the Closing Date or
the Option Closing Date, as the case may be, for not longer than
seven (7) days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph
shall not relieve a defaulting Underwriter from liability in respect of
any default of any such Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Offerors set forth in or made
pursuant to this Agreement shall remain operative and in full force and
effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any of the Underwriters or by or on
behalf of the Offerors, (ii) acceptance of the Securities and payment
therefor hereunder or (iii) termination of this Agreement.
Notwithstanding any termination of this Agreement, the Company shall be
liable for and shall pay all expenses it has agreed to pay pursuant to
Section 5(k).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of, and shall be binding upon, the Offerors, the
Underwriters, any indemnified person referred to herein and their
respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The terms "successors and
assigns" shall not include a purchaser of any of the Securities from any
of the several Underwriters merely because of such purchase.
10. Effectiveness of Registration Statement. You and the
Offerors will use your and their best efforts to cause the Registration
Statement to become effective, if it has not yet become effective, and
to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be
issued, to obtain as soon as possible the lifting thereof.
11. Miscellaneous. All communications hereunder will be in
writing and, if sent to the Underwriters will be mailed, delivered or
telegraphed and confirmed to you c/o EVEREN Securities, Inc., 00 Xxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Syndicate
Department, with a copy to Xxxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx &
Xxxxxxxxx, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. xxx Xxxxxx; and if sent to the Company or the Trust
will be mailed, delivered or telegraphed and confirmed to the Company or
the Trust at the Company's corporate headquarters with a copy to
Xxxxxxxx Xxxxxx LLP, Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxx.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Trust and the several Underwriters,
including you.
Very truly yours,
ALLEGIANT BANCORP, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
ALLEGIANT CAPITAL TRUST I
By:______________________________________
Name:____________________________________
Title:___________________________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
EVEREN Securities, Inc.
Acting as representative of the
several Underwriters named in Schedule I.
By: EVEREN Securities, Inc.
By:_____________________________
Name:___________________________
Title:__________________________
