Exhibit 1
1,700,000 Shares
ALLEGIANT BANCORP, INC.
Common Stock
UNDERWRITING AGREEMENT
----------------------
________, 2003
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
RBC Xxxx Xxxxxxxx Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
Xxxx Xxxxxx Investments, Inc.
c/x Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Dear Ladies and Gentlemen:
Allegiant Bancorp, Inc., a Missouri corporation (the "Company"),
proposes to sell to you as the underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 1,700,000 shares (the "Firm Stock") of the
Company's common stock, $.01 par value per share (the "Common Stock"). In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional 255,000 shares of Common Stock on the terms and
for the purposes set forth in Section 2 hereof (the "Option Stock"). The
Firm Stock and the Option Stock, if purchased, are hereinafter called the
"Stock." This is to confirm the agreement concerning the purchase of the
Stock from the Company by the Underwriters.
1. Company Representations and Warranties. The Company represents and
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warrants to each Underwriter as of the date of this Agreement and as of each
of the First Delivery Date (as defined below), and the Second Delivery Date
(as defined below, and together with the First Delivery Date, the "Delivery
Dates") and agrees with each Underwriter that:
(a) A Registration Statement (as defined below) on Form S-3 (File
No. - 333-102843), with respect to the Stock (i) has been prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), and the Rules and Regulations (as defined below) of
the Securities and Exchange Commission (the "Commission") thereunder, (ii)
has been filed by the Company with the Commission under the Act and (iii)
has become effective under the Act. If any post-effective amendment to such
Registration Statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent such amendment has
become effective under the Act. Copies of such Registration Statement as
amended to date (including all forms of the Preliminary Prospectus (as
defined below) heretofore delivered to you) have been delivered by the
Company to you. The Commission has not issued any order suspending the
effectiveness of the Registration Statement or preventing or suspending the
use of any Preliminary Prospectus or Prospectus (as defined below), and no
proceedings for that purpose have been instituted or, to the best knowledge
of the Company, threatened. The Company has complied in all material
respects with all requests of
the Commission for additional information to be included in the Registration
Statement or in any Preliminary Prospectus or Prospectus. As used in this
Agreement, "Effective Time" means the date and the time as of which such
Registration Statement, or the most recent post-effective amendment thereto,
if any, became effective under the Act; "Effective Date" means the date of
the Effective Time; "Preliminary Prospectus" means each prospectus included
in such Registration Statement, or amendments thereto, before the Effective
Time and any Prospectus filed with the Commission by the Company with the
consent of the Underwriters pursuant to Rule 424(a) of the Rules and
Regulations; "Registration Statement" means such registration statement,
including all exhibits and financial schedules thereto and any documents
incorporated by reference therein, as amended at the Effective Time,
including all information deemed to be a part thereof as of the Effective
Time pursuant to paragraph (b) of Rule 430A of the Rules and Regulations;
"Rules and Regulations" means the rules and regulations adopted by the
Commission under either the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable; and "Prospectus" means the form
of prospectus relating to the Stock as first filed with the Commission by
the Company with the consent of the Underwriters pursuant to Rule 424(b)
("Rule 424(b)") of the Rules and Regulations. Reference made herein to any
Preliminary Prospectus or to the Prospectus, as amended or supplemented,
shall include all documents and information incorporated by reference
therein. If the Company has filed an abbreviated registration statement to
register additional Common Stock pursuant to Rule 462(b) under the Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462
Registration Statement.
(b) The Registration Statement contains, and any post-effective
amendment to the Registration Statement filed with the Commission after the
Effective Time, the Prospectus and the Prospectus as amended or supplemented
will contain, in all material respects, all statements which are required by
the Act and the Rules and Regulations. On the Effective Date and on each of
the Delivery Dates, the Registration Statement did not, and any
post-effective amendment to the Registration Statement filed with the
Commission after the Effective Time, the Prospectus and the Prospectus as
amended or supplemented will not, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided that the Company makes
no representation or warranty as to information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of any Underwriter specifically for use in the preparation thereof. Each
Preliminary Prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering will, at the time of such delivery, be
substantively identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T. The documents which are incorporated by reference in the
Registration Statement or any Preliminary Prospectus or the Prospectus or
from which information is so incorporated by reference, when they became
effective or were filed with the Commission, as the case may be (or, if an
amendment with respect to any such documents was filed or became effective,
when such amendment was filed or became effective), complied in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the Rules and Regulations and did not contain any 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.
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(c) With respect to the Form 10-K for the fiscal year ended
December 31, 2002 (the "2002 10-K"), filed by the Company under the Exchange
Act that is incorporated by reference into the Registration Statement, (i)
the Company's Chief Executive Officer and Chief Financial Officer have
evaluated the effectiveness of the Company's disclosure controls and
procedures to ensure that material information relating to the Company and
its subsidiaries is made known to the Chief Executive Officer and Chief
Financial Officer by others within the Company and its subsidiaries within
90 days prior to its filing date, (ii) the conclusions of the Chief
Executive Officer and Chief Financial Officer concerning the effectiveness
of such disclosure controls and procedures are presented in the 2002 10-K,
and (iii) the Company's Chief Executive Officer and Chief Financial Officer
have disclosed in the 2002 10-K, as applicable, whether or not there were
significant changes in internal controls or in other factors that could
significantly affect internal controls subsequent to the date of the
Company's Chief Executive Officer and Chief Financial Officer's most recent
evaluation, including any corrective actions, if any, taken by the Company
with regard to significant deficiencies and material weaknesses.
(d) Neither the Company nor any of its subsidiaries (as defined in
Section 11) is, or with the giving of notice or lapse of time or both, will
be, in violation of its corporate charter or by-laws or in default under any
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party or to which any of them is bound, or in violation of
any law, rule or regulation, the effect of which violation or default would
be material to the Company and its subsidiaries taken as a whole; the
execution, delivery and performance of this Agreement will not conflict
with, result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its subsidiaries
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument, or result in a violation of the corporate charter
or by-laws of the Company or any of its subsidiaries or any order, rule or
regulation of any court or governmental agency having jurisdiction over the
Company, any of its subsidiaries or any of their properties, the effect of
which conflict, lien, default or violation would be material to the Company
and its subsidiaries taken as a whole; and except as required by the Act,
the Exchange Act, applicable state securities laws, the Nasdaq Stock Market,
Inc. and the National Association of Securities Dealers, Inc., no consent,
authorization or order of or filing or registration with, any court or
governmental agency (including the Comptroller of the Currency, the Board of
Governors of the Federal Reserve System, the Federal Deposit Insurance
Corporation and any state regulatory agency having jurisdiction over the
Company or any of its subsidiaries) is required for the execution, delivery
and performance of this Agreement by the Company. To the best knowledge of
the Company, no other party under any agreement, indenture or instrument to
which the Company or any of its subsidiaries 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 on the business,
franchises, assets, properties, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries taken as a
whole.
(e) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and except as
described therein, neither the Company nor its subsidiaries has incurred any
material liability or obligation, direct or contingent, or entered into any
material transaction, whether or not in the ordinary course of business
(other than loans made in the ordinary course of business), and there has
not been any material change on a consolidated basis in the capital stock,
or any increase in the short-term and long-term debt,
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or any issuance of options, warrants, convertible securities or other rights
to purchase capital stock of the Company or its subsidiaries (except for
options granted under the Company's existing stock option plans) or any
material adverse change in, or any adverse development which materially
affects, the business, franchises, assets, properties, condition (financial
or other), results of operations or prospects of the Company and its
subsidiaries taken as a whole.
(f) Each of the Company and its subsidiaries holds good and
marketable title to, or valid and enforceable leasehold interests in, all
items of real and personal property which are material to the business of
the Company and its subsidiaries taken as a whole, free and clear of all
liens, encumbrances and claims which might materially interfere with the
conduct of the business of the Company and its subsidiaries taken as a
whole, and the Company and its subsidiaries own or have the right to use in
accordance with the terms thereof all licenses, permits, consents, approvals
or authorizations of and certificates from any public or governmental
authority that are necessary for the ownership, maintenance and operation of
the properties, assets and business operations of the Company and its
subsidiaries taken as a whole, and that, if not obtained, could have a
material adverse effect on the business, franchises, assets, properties,
condition (financial or other), results of operations or prospects of the
Company and its subsidiaries taken as a whole. Except as described in the
Prospectus, each of the foregoing is valid and in full force and effect and
no event has occurred and is continuing which permits, or after notice or
lapse of time or both would permit, modifications or terminations of the
foregoing which, in the aggregate, would have a material adverse effect on
the business, franchises, assets, properties, condition (financial or
other), results of operations or prospects of the Company and its
subsidiaries taken as a whole. Each of the Company and its subsidiaries
carries insurance in such amounts and covering such risks as is adequate for
the conduct of its business and the value of its properties.
(g) Ernst & Young, LLP, whose reports are incorporated by reference
in the Prospectus, (i) are independent public accountants as required by the
Act and the Rules and Regulations, (ii) have been engaged by the audit
committee of the Company's board of directors (the "Audit Committee") to
audit the financial statements included in the Company's Annual Report on
Form 10-K incorporated in the Registration Statement by reference and the
financial statements of the Company as of December 31, 2002 and for the year
then-ended and to perform services on behalf of the Company in connection
with the filing of the Registration Statement, and (iii) have not performed
any activities for or on behalf of the Company or any of its subsidiaries
that are prohibited under the Exchange Act or the Rules and Regulations or
for which Audit Committee pre-approval is required under the Exchange Act or
the Rules and Regulations but has not been obtained.
(h) At the date or dates indicated in the Prospectus, (i) the
Company had the duly authorized and outstanding capitalization set forth
under the column labeled "Actual" under the caption "Capitalization," (ii)
assuming the accuracy of the assumptions and adjustments set forth in the
footnotes thereto, the column labeled "Pro Forma" under the caption
"Capitalization" accurately reflects the adjustment to the authorized and
outstanding capitalization of the Company upon the consummation of the sale
by the Company of its wholly-owned subsidiary, Bank of Ste. Xxxxxxxxx, and
(iii) assuming the accuracy of the assumptions and adjustments set forth in
the footnotes thereto, the column labeled "Pro Forma As Adjusted" under the
caption "Capitalization" accurately reflects the adjustment to the
authorized and outstanding
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capitalization of the Company as of the issuance of the Firm Stock on the
First Delivery Date and assuming the consummation of the Bank of Ste.
Xxxxxxxxx disposition. The assumptions and adjustments set forth in the
footnotes under the caption "Capitalization" have been made in good faith,
and the Company has no reason to believe that any of the assumptions set
forth in the footnotes under the caption "Capitalization" in the Prospectus
will cause any of the amounts set forth under the caption "Capitalization"
to be false or misleading in any material respect. All the authorized shares
of Common Stock, including the Stock, have been duly authorized, and all the
issued and outstanding shares of Common Stock are, and all the shares of the
Stock, when issued, delivered and paid for in the manner described in the
Prospectus on the First Delivery Date and the Second Delivery Date, if any,
will be, validly issued and outstanding, fully paid and nonassessable with
no personal liability attaching to the ownership thereof. None of the shares
of the Stock to be sold by the Company when issued, sold and delivered in
accordance with this Agreement will be subject to any lien, claim,
encumbrance, preemptive rights or any other claim of any third party; and
the Stock will conform to the description thereof contained in the
Registration Statement under the caption "Description of Capital Stock." On
the Effective Date, the First Delivery Date and Second Delivery Date, if
any, there will be no options or warrants or other outstanding rights
(contractual or otherwise) to purchase, agreements or obligations to issue
or agreements or other rights to convert or exchange any obligation or
security into, capital stock of the Company or securities convertible into
or exchangeable for capital stock of the Company, except as described in the
Prospectus or the grant of options after the date of the Prospectus under
option plans of the Company. The information in the Prospectus insofar as it
relates to all outstanding options and other rights to acquire securities of
the Company as of the Effective Date is, and immediately prior to the First
Delivery Date and the Second Delivery Date, if any, will be complete and
correct in all material respects. All previous offers and sales of the
outstanding shares of capital stock of the Company were made in conformity
with applicable federal, state or foreign securities laws (except where the
failure to so conform would not, in the aggregate, have a material adverse
effect on the business, franchises, assets, properties, condition (financial
or other), results of operations or prospects of the Company and its
subsidiaries taken as a whole). The certificates representing the Stock are
in proper legal form under, and conform in all material respects to the
requirements of, Missouri corporate law.
(i) The Company is legally permitted, pursuant to the terms of the
Act, to offer and sell the Stock pursuant to the Registration Statement. The
Common Stock (including the Stock) is registered pursuant to Section 12(g)
of the Exchange Act. The issued and outstanding shares of Common Stock are
included for quotation on the Nasdaq National Market. Neither the Company
nor, to the best knowledge of the Company, any other person has taken any
action designed to cause, or likely to result in, the termination of the
registration of the Common Stock under the Exchange Act. The Company has not
received any notification from the Commission or the Nasdaq Stock Market,
Inc. that either that agency or entity is contemplating terminating such
registration or inclusion.
(j) Each of the Company and its subsidiaries has been duly
incorporated, and is validly existing and in good standing under the laws of
its respective jurisdiction of incorporation. Each of the Company and its
subsidiaries is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership of property
or the conduct of its business requires such qualification (except where the
failure so to qualify would not have a material adverse effect on the
business, franchises, assets, properties, condition
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(financial or other), results of operations or prospects of the Company and
its subsidiaries taken as a whole) and has all power and authority necessary
to own or hold its properties and to conduct the business in which it is
engaged. All of the outstanding shares of capital stock of the subsidiaries
of the Company have been duly authorized and validly issued, are fully paid
and nonassessable, and are owned by the Company directly, or indirectly
through wholly-owned subsidiaries, and except for the security interest held
by U.S. Bank, as agent, pursuant to the terms of the Company's credit
facility and the interest of First Banks, Inc. to purchase the shares of
stock of Bank of Ste. Xxxxxxxxx pursuant to the terms of that certain
Agreement and Plan of Exchange dated September 17, 2002, free and clear of
any lien, pledge or encumbrance. Allegiant Bank, Allegiant Capital
Corporation, Allegiant Investment Counselors, Allegiant Investment Company,
Allegiant Real Estate Investment Trust, Equality Commodity Corporation,
Equality Mortgage Company, Allegiant Insurance Services Co., Bank of Ste.
Xxxxxxxxx, Xxxxxx Road, Inc., Allegiant Capital Trust I, Allegiant Capital
Trust II and Allegiant Community Development Corporation are the only direct
or indirect subsidiaries of the Company. The Company is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended.
Each of Allegiant Bank and the Bank of Ste. Xxxxxxxxx has been duly
organized and is validly existing as a Missouri state banking association
and continues to do business as such and has full power and authority to
conduct its business as such in each jurisdiction in which its banking
business is conducted and as described in the Prospectus. Each of Allegiant
Bank and the Bank of Ste. Xxxxxxxxx is in good standing with the Division of
Finance of the State of Missouri ("Division of Finance"). The deposit
accounts of each of the Company's bank subsidiaries are insured up to the
applicable limits by the Federal Deposit Insurance Corporation ("FDIC") to
the fullest extent permitted by law and the rules and regulations of the
FDIC, and no proceeding for revocation or termination of such insurance is
pending or, to the best knowledge of the Company, threatened.
(k) Except as described in the Registration Statement and the
Prospectus, there is no material litigation or governmental proceeding
action or order pending or, to the best knowledge of the Company, threatened
against the Company or any of its subsidiaries which might reasonably be
expected to result in any material adverse change in the business,
franchises, assets, properties, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries taken as a
whole, which might reasonably be expected to require the Company or any of
its subsidiaries to make any material change in its method of conducting its
business or which is required to be disclosed in the Registration Statement
and the Prospectus.
(l) The consolidated financial statements and accompanying notes of
the Company and its subsidiaries incorporated by reference in the
Registration Statement, any Preliminary Prospectus or the Prospectus present
fairly, in all material respects, the financial condition, results of
operations and cash flows of the Company and its consolidated subsidiaries,
at the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied, except as
set forth in the Registration Statement and the Prospectus, on a consistent
basis throughout the periods involved except as specified therein. The
financial information included in the Prospectus under the caption
"Financial Summary" presents fairly the information shown therein and has
been compiled on a basis consistent with that of the audited consolidated
financial statements incorporated by reference in the Prospectus.
(m) There is no contract or other document which is required by the
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the Act or by the Rules and Regulations to be described in the Registration
Statement, any Preliminary Prospectus or the Prospectus, to be filed as an
exhibit to the Registration Statement, or to be incorporated by reference
into the Prospectus which has not been described, filed or incorporated by
reference as required.
(n) There are no holders of securities of the Company who, by
reason of the filing of the Registration Statement under the Act or the
execution by the Company of this Agreement, have the right (other than a
right which has been waived or satisfied) to request or demand that the
Company register under the Act securities held by them except as set forth
in the Registration Statement and the Prospectus.
(o) Neither the Company nor any of its affiliates has taken, within
the 90-day period preceding the date of this Agreement, and the Company
agrees that during the 90-day period following the date of this Agreement it
will not take (and it will not permit its affiliates to take), directly or
indirectly, any action which has constituted or might reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Common Stock of the Company.
(p) The Company has all corporate power and authority necessary to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement has been duly authorized, executed and delivered by the
Company and constitutes the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors'
rights generally or by equitable principles (whether considered in an action
at law or in equity) and except as the rights to indemnification or
contribution hereunder may be limited by federal or state securities laws.
(q) The conditions for use of Form S-3 with respect to the offering
of the Stock, set forth in the General Instructions thereto, have been
satisfied as of the date of the filing of the Registration Statement and
each post-effective amendment to such Registration Statement.
(r) The Company and its subsidiaries have timely and properly
prepared and filed all necessary federal, state, local and foreign tax
returns which are required to be filed and have paid all taxes shown as due
thereon and have paid all other taxes and assessments to the extent that the
same shall have become due, except such as are being contested in good
faith. The Company has no knowledge of any tax deficiency which has been or
might be assessed against the Company or any of its subsidiaries which, if
the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the business, franchises, assets, properties,
condition (financial or other), results of operations or prospects of the
Company and its subsidiaries taken as a whole.
(s) Other than as contemplated by this Agreement and as disclosed
in the Prospectus, the Company has not incurred any liability for any
finder's or broker's fee or agent's commission in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated herein.
(t) Neither the Company nor any of its subsidiaries, or any other
person
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associated with or acting on behalf of the Company or any of its
subsidiaries, including, without limitation, any director, officer, agent,
or employee of the Company or any of its subsidiaries has, directly or
indirectly, while acting on behalf of such Company or subsidiary, (i)
violated any statute, judgment, decree, order, rule or regulation applicable
to any of them or any of their respective properties or assets that alone or
together with other such violations would result in a material adverse
effect on the business, franchises, assets, properties, condition (financial
or other), results of operations or prospects of the Company and its
subsidiaries taken as a whole; (ii) used any corporate funds for unlawful
contributions, gifts, entertainment, or other unlawful expenses relating to
political activity; (iii) made any unlawful contribution to any candidate
for foreign or domestic office, or to any foreign or domestic government
officials or employees or other persons charged with similar public or
quasi-public duties, other than payments required or permitted by the laws
of the United States or any jurisdiction thereof or to foreign or domestic
political parties or campaigns from corporate funds, or failed to disclose
fully any contribution in violation of law; (iv) violated any provision of
the Foreign Corrupt Practices Act of 1977, as amended; (v) violated any
provision of the Xxxxxxxx-Xxxxx Act of 2002; or (vi) made any other payment
of funds of the Company or any of its subsidiaries or retained any funds
which constitute a material violation of any law, rule or regulation or
which was or is required to be disclosed in the Prospectus pursuant to the
requirements of the Act or the applicable Rules and Regulations. The Company
and its 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.
(u) The Company and its subsidiaries maintain insurance in such
amounts to insure against such losses and risks as are adequate to protect
in all material respects the Company and its subsidiaries and their
businesses. Neither the Company nor any of its subsidiaries has received
notice from any insurer or agent of such insurer that substantial capital
improvements or other expenditures shall have to be made in order to
continue such insurance. All such insurance is outstanding and duly in force
and with such exceptions as would not have a material adverse effect on the
business, franchises, assets, properties, condition (financial or other),
results of operations or prospects of the Company and its subsidiaries taken
as a whole.
(v) Neither the Company nor any of its subsidiaries has any funding
liability, within the meaning of Section 412 of the Code, under any "pension
plan," as defined in the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). Neither the Company nor any of its subsidiaries has any
pension plan with minimum funding requirements pursuant to Section 412 of
the Code. The employee benefit plans, including employee welfare benefit
plans, of the Company and each of its subsidiaries, if any (the "Employee
Plans"), have been operated in material compliance with the applicable
provisions of ERISA, the Internal Revenue Code of 1986, as amended (the
"Code"), all regulations, rulings and announcements promulgated or issued
thereunder and all other applicable governmental laws and regulations. No
reportable event under Section 4043(c) of ERISA has occurred with respect to
any Employee Plan for which the reporting requirements have not been waived
by the Pension Benefit Guaranty Corporation. No prohibited transaction under
Section 406 of ERISA, for which an exemption does not apply, has occurred
with respect to any Employee. There are no pending or, to the best knowledge
of the Company, threatened, claims by or on behalf of any Employee Plan, by
any employee or beneficiary covered under any such Employee Plan or by any
governmental authority or otherwise involving such Employee Plans or any of
their respective fiduciaries
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(other than for routine claims for benefits). All Employee Plans that are
group health plans have been operated in material compliance with the group
health plan continuation coverage requirements of Section 4980B of the Code.
(w) No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the best knowledge of the Company, is
imminent or has been threatened, which may reasonably be expected to result
in a material adverse effect on the business, franchises, assets,
properties, condition (financial or other), results of operations or
prospects of the Company and its subsidiaries taken as a whole, or which is
required to be disclosed in the Prospectus. None of the Company's or any of
its subsidiaries' employees is covered by a collective bargaining agreement
and, to the Company's best knowledge, no union organizing activity exists
with respect to such employees.
(x) Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment company"
within the meaning of such terms under the Investment Company Act of 1940
and the rules and regulations thereunder.
(y) The Company and each of its subsidiaries maintains a system of
internal controls sufficient to provide reasonable assurances that in all
material respects (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of consolidated financial
statements that fairly present the financial condition, results of
operations and cash flows of the Company and its subsidiaries, are in
conformity with generally accepted accounting principles and maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. There are no significant deficiencies in the design or
operation of internal controls which could adversely affect the Company's
ability to record, process, summarize and report financial data and no
fraud, whether or not material, exists that involves management or other
employees who have a significant role in the Company's internal controls.
(z) To the Company's best knowledge, the Company and each of its
subsidiaries each own or possess the right to use all patents, patent
rights, trademarks, trade names, service marks, service names, copyrights,
license rights, know-how (including trade secrets and other unpatented and
unpatentable proprietary or confidential information, systems or procedures)
and other intellectual property rights ("Intellectual Property") necessary
to carry on each of their businesses as currently conducted. Neither the
Company nor any of its subsidiaries has received notice of violation of any
Intellectual Property of any other person or entity, and, to the Company's
best knowledge, neither the Company nor any of its subsidiaries has
infringed any Intellectual Property of any other person or entity. The
Company and its subsidiaries have taken all reasonable steps necessary to
protect the Company's and its subsidiaries' interest in their trade secrets
and confidential information, except for the failure to take all reasonable
steps that would not have a material adverse effect on the business,
franchises, assets, properties, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries taken as a
whole. There are no outstanding options, licenses or agreements of any kind
relating to the Intellectual Property of the Company and its subsidiaries
that are required to be described in the Prospectus and are not so
described. The Company and its subsidiaries are
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not a party to or bound by any options, licenses or agreements with respect
to the Intellectual Property of any other person or entity that are required
to be set forth in the Prospectus and are not so set forth. No technology
employed by the Company or any of its subsidiaries has been obtained or is
being used by the Company or any of its subsidiaries in material violation
of any contractual obligation binding the Company or any of its subsidiaries
or, to the Company's best knowledge, binding any of the Company's or its
subsidiaries' officers, directors or employees nor, to the Company's best
knowledge, does such use violate in any material respects the rights of any
third parties. None of the Company or any of its subsidiaries have received
any written or oral communications alleging that the Company or any
subsidiary has violated, infringed or conflicted with, or, by conducting its
business as currently conducted, would violate, infringe or conflict with,
any of the Intellectual Property of any other person or entity. The Company
knows of no infringement by others of the Intellectual Property owned by the
Company or any of its subsidiaries.
2. Purchase of the Stock by the Underwriters. On the basis of the
-----------------------------------------
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell the Firm Stock to
the Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase the number of shares of the Firm Stock set forth opposite
that Underwriter's name in Schedule I hereto.
In addition, the Company grants to the Underwriters, solely for the
purpose of covering over-allotments in the sale of the Firm Stock, an option
to purchase all or any portion of the Option Stock exercisable as provided
in Section 4 hereof. Shares of Option Stock shall be purchased severally for
the account of each Underwriter in the proportion that the number of shares
of Firm Stock set forth opposite the name of such Underwriter in Schedule I
hereto bears to the total number of shares of the Firm Stock to be purchased
by the Underwriters pursuant to this Agreement, except that the respective
purchase obligations of each Underwriter shall be adjusted so that no
Underwriter shall be obligated to purchase Option Stock other than in full
share amounts. The price of both the Firm Stock and the Option Stock to be
paid by the Underwriters to the Company shall be $______ per share.
The Underwriters are to make a public offering of the Firm Stock
and such of the Option Stock as the Underwriters may determine on or as soon
after the Effective Date as the Underwriters deem it advisable for the
Underwriters so to do. The Stock is to be initially offered to the public at
the public offering price set forth on the cover page of the Prospectus
(such price being hereinafter called the "public offering price"). The
Underwriters may from time to time increase or decrease the public offering
price after the initial public offering to such extent as the Underwriters,
in their sole discretion, deem advisable. The Underwriters may enter into
one or more agreements as the Underwriters, in their sole discretion deem
advisable, with one or more broker-dealers who shall act as dealers in
connection with such public offering.
3. Default by the Underwriters. If, on the First Delivery Date or the Second
---------------------------
Delivery Date, as the case may be, any Underwriter defaults in the
performance of its obligations under this Agreement and the total number of
shares of the Firm Stock or Option Stock, as the case may be, which the
defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 15% of the total number of shares of Firm Stock or Option Stock,
as the case may be, which the Underwriters are obligated to purchase at such
date, the remaining non-
10
defaulting Underwriters shall be obligated, severally, to purchase the Firm
Stock or the Option Stock, as the case may be, which the defaulting
Underwriter agreed but failed to purchase on such date in the respective
proportions which the number of shares of the Firm Stock set forth opposite
the name of each remaining non-defaulting Underwriter in Schedule I hereto
bears to the total number of shares of the Firm Stock set forth opposite the
names of all the remaining non-defaulting Underwriters in Schedule I hereto.
If the aggregate number of shares of Firm Stock or Option Stock, as
the case may be, with respect to which such default shall occur exceeds 15%
of the total number of shares of Firm Stock or Option Stock, as the case may
be, which the Underwriters are obligated to purchase at such date, the
remaining non-defaulting Underwriters, or those other underwriters
(notwithstanding anything contained herein to the contrary, any underwriter
that is not a party hereto that purchases any of the Firm Stock or Option
Stock shall be deemed to be an "Underwriter" pursuant to the terms of this
Agreement) satisfactory to the non-defaulting Underwriters who so agree,
shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Firm Stock or all the
Option Stock, as the case may be, to be purchased under this Agreement on
such date. If the remaining Underwriters or other underwriters satisfactory
to the remaining Underwriters do not elect to purchase the Stock which the
defaulting Underwriter or Underwriters agreed but failed to purchase, then
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company (except that the Company will
continue to be liable for the payment of expenses as set forth in Section
5(m) and the indemnity and contribution provisions contained in Section 6),
unless the Company and the remaining non-defaulting Underwriters make an
------
election in writing within 24 hours after the First Delivery Date or the
Second Delivery Date, as the case may be, to proceed with the offering
contemplated by this Agreement notwithstanding such default. In the event
that the Company and the remaining non-defaulting Underwriters so elect,
each such remaining non-defaulting Underwriter shall continue to be
obligated, upon the conditions set forth in this Agreement and subject to
the provisions of the next paragraph, to purchase (severally and not
jointly) the number of shares of Firm Stock and Option Stock, as the case
may be, provided for by Section 2 hereof.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Stock of a
defaulting or withdrawing Underwriter, or the Company and the remaining
non-defaulting Underwriters elect to proceed with the offering contemplated
hereby notwithstanding such default, either the remaining Underwriters or
the Company may postpone the First Delivery Date or the Second Delivery
Date, as the case may be, for up to seven full business days in order to
effect any changes that, in the opinion of counsel for the Company or
counsel for the Underwriters, may be necessary in the Registration
Statement, the Prospectus or in any other document or agreement, and to file
promptly any necessary amendments or supplements to the Registration
Statement or the Prospectus.
4. Delivery of Stock. Delivery of and payment for the Firm Stock shall be
-----------------
made at the offices of Xxxxxxxx Xxxxxx LLP, One XX Xxxx Xxxxx, Xx. Xxxxx,
Xxxxxxxx 00000 at 10:00 a.m., St. Louis, Missouri time, on the third
business day following the date of this Agreement (or, if the Registration
Statement becomes effective after 4:30 p.m. (Eastern Time) on the date of
this Agreement, the fourth business day) or at such later date as shall be
determined by
11
agreement between the Underwriters and the Company. This date and time are
sometimes referred to as the "First Delivery Date." On the First Delivery
Date, the Company shall deliver the certificates representing the Firm Stock
to the Underwriters against payment to the Company by wire transfer of
immediately available funds to a bank designated by the Company. Time shall
be of the essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Firm Stock shall be registered in such names
and in such denominations as the Underwriters shall request in writing not
less than two full business days prior to the First Delivery Date. For the
purpose of expediting the checking and packaging of the Firm Stock, the
Company shall make the certificates representing the Firm Stock available
for inspection by the Underwriters in New York, New York, not later than
2:00 P.M., New York City time, on the business day prior to the First
Delivery Date. Notwithstanding any other provisions contained in this
Agreement to the contrary, the First Delivery Date and the place of delivery
of and payment for the Firm Stock may be varied by agreement between the
Company and the Underwriters.
At any time on or before the 30th day after the date on which this
Agreement becomes effective, the option granted in Section 2 may be
exercised in whole or in part by written notice being given by the
Underwriters to the Company. Such notice shall set forth the aggregate
number of shares of Option Stock as to which the option is being exercised,
the names in which the shares of Option Stock are to be registered, the
denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Underwriters, when the shares of Option
Stock are to be delivered (the "Second Delivery Date"); provided, however,
that the Second Delivery Date shall not be earlier than the First Delivery
Date nor earlier than the second business day after the date on which the
option shall have been exercised nor later than the third business day (or,
if the option is exercised on the same date the Registration Statement
becomes effective, and the Registration Statement becomes effective after
4:30 p.m. (Eastern Time) on such day, the fourth business day) after the
date on which the option shall have been exercised.
Delivery of and payment for the Option Stock shall be made at the
offices of Xxxxxxxx Xxxxxx LLP, One XX Xxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000
at 10:00 a.m., St. Louis, Missouri time, on the Second Delivery Date. On the
Second Delivery Date, the Company shall deliver the certificates
representing the Option Stock to the Underwriters against payment to the
Company by wire transfer of immediately available funds to a bank designated
by the Company. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the Option Stock
shall be registered in such names and in such denominations as the
Underwriters shall request in the aforesaid written notice. For the purpose
of expediting the checking and packaging of the Option Stock, the Company
shall make the certificates representing the Option Stock available for
inspection by the Underwriters in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Second Delivery
Date. Notwithstanding any other provision contained in this Agreement to the
contrary, the Second Delivery Date and the place of delivery of and payment
for the Option Stock may be varied by agreement between the Company and the
Underwriters.
5. Covenants. The Company covenants and agrees with the Underwriters:
---------
(a) To furnish promptly to each of the Underwriters and to counsel
for the
12
Underwriters a signed copy of the Registration Statement as originally
filed, and each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith and any document filed under the
Exchange Act and deemed to be incorporated by reference into any Preliminary
Prospectus or the Prospectus.
(b) To deliver promptly to each of the Underwriters such number of
conformed copies of the Registration Statement as originally filed and each
amendment thereto (in each case excluding exhibits other than this
Agreement), and of each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus as the Underwriters may reasonably
request.
(c) To file promptly with the Commission the Prospectus pursuant to
Rule 424(b)(l) of the Rules and Regulations (or, if consented to by the
Underwriters, pursuant to Rule 424(b)(4)) any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus and file any
document under the Exchange Act before the termination of the offering of
the Stock by the Underwriters if such document would be deemed to be
incorporated by reference into any Preliminary Prospectus or the Prospectus
that may, in the reasonable judgment of the Company and the Underwriters, be
required by the Act or requested by the Commission and approved by the
Underwriters.
(d) To cause the Stock to be listed for quotation on the Nasdaq
National Market beginning on the date the Registration Statement becomes
effective, and to file with the Nasdaq National Market all documents and
notices required by the Nasdaq National Market of companies that have
securities that are traded in the over-the-counter market and quotations for
which are reported by the Nasdaq National Market.
(e) Prior to filing with the Commission any Preliminary Prospectus,
any amendment to the Registration Statement, any supplement to the
Prospectus, any Prospectus pursuant to Rule 424 of the Rules and
Regulations, or any other document under the Exchange Act if such document
would be deemed to be incorporated by reference into any Preliminary
Prospectus or the Prospectus, to (i) furnish a copy thereof to the
Underwriters and counsel for the Underwriters, (ii) obtain the consent of
the Underwriters to the filing, which consent shall not be unreasonably
withheld, and (iii) promptly advise the Underwriters when any such amendment
to the Registration Statement becomes effective.
(f) To advise the Underwriters promptly (i) when any post-effective
amendment to the Registration Statement becomes effective, (ii) of any
request or proposed request by the Commission for an amendment to the
Registration Statement, a supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threat of any stop order proceeding, (iv) of receipt by the
Company of any notification with respect to the suspension of the
qualification of the Stock for sale in any jurisdiction or the initiation or
threat of any proceeding for that purpose, and (v) of the happening of any
event which, in the reasonable opinion of the Company, its counsel or the
Underwriters or counsel to the Underwriters, makes untrue any statement of a
material fact made in the Registration Statement or the Prospectus, or
which, in the reasonable opinion of the Company, its counsel or the
Underwriters or counsel to
13
the Underwriters, requires the making of a change in the Registration
Statement or the Prospectus in order to make any material statement therein
not misleading.
(g) The Company will use its best efforts to prevent the issuance
of any stop order suspending the effectiveness of the Registration Statement
by the Commission. If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, the Company shall use its best
efforts to obtain the lifting of that order at the earliest possible time.
(h) As soon as practicable after the Effective Date, but not later
than the applicable required date of filing under the Exchange Act following
the end of the fiscal quarter first occurring after the first anniversary of
the Effective Date, to make generally available to its security holders and
to deliver to the Underwriters an earning statement, conforming with the
requirements of Section 11(a) of the Act, covering a period of at least 12
months beginning after the effective date of the Registration Statement.
(i) For a period of five years from the Effective Date, to furnish
to the Underwriters copies of all reports and financial statements furnished
by the Company to the principal national securities exchange, automated
quotation system or over-the-counter market upon which its Common Stock may
be listed or traded pursuant to requirements of or agreements with such
exchange or market or filed with the Commission pursuant to the Exchange Act
or any rule or regulation of the Commission thereunder.
(j) To apply the net proceeds of the sale of the Stock as set forth
in the Prospectus.
(k) To cause each officer and each director of the Company and
Allegiant Bank to furnish to the Company, on or prior to the date of this
Agreement, a letter or letters, substantially in the form attached hereto as
Exhibit A hereto (the "Lock-up Letters"), and to impose stop transfer
instructions with the transfer agent for the Company in accordance with the
Lock-up Letters.
(l) Without the prior written consent of the Underwriters (which
consent shall not be unreasonably withheld), not to sell or otherwise
dispose of, or offer or contract to sell any shares of Common Stock or sell
or grant any rights, options, warrants or securities convertible with
respect to Common Stock within 180 days after the Effective Date except for
(i) the sale of the Stock to the Underwriters pursuant to this Agreement,
(ii) the grant or exercise of options pursuant to the Company's stock option
plans as described in the Registration Statement and Prospectus, and (iii)
the issuance by the Company of its securities in connection with a merger,
acquisition or similar transaction.
(m) To pay (i) the costs incident to the authorization, issuance,
sale and delivery of the Stock and any taxes payable in that connection;
(ii) the costs incident to the preparation, printing and filing under the
Act, and mailing and delivery, of the Registration Statement and any
amendments and exhibits thereto, including fees payable to the Commission;
(iii) the costs of printing and distributing the Registration Statement as
originally filed and each amendment and post-effective amendment thereof
(including exhibits), any Preliminary
14
Prospectus, the Prospectus and any amendment or supplement to the Prospectus
as provided in this Agreement and the costs of printing and distributing
this Agreement and other underwriting documents, including Underwriters'
Questionnaires, Underwriters' Powers of Attorney, Agreements Among
Underwriters and Selected Dealer Agreements; (iv) the costs of the listing
or qualification of the Stock on the Nasdaq National Market and related
filing fees with the National Association of Securities Dealers, Inc.
(including fees and disbursements of counsel to the Underwriters); (v) the
expenses associated with the issuance, transfer and delivery of the Stock
including issue and transfer taxes, if any; (vi) the travel expenses of the
Company in connection with informational meetings and presentations for the
brokerage community and institutional investors; (vii) the costs associated
with settlement in same day funds, if desired by the Company; (viii)
registrar and transfer agent costs and fees; (ix) the fees and expenses, if
any, of qualifying the Stock under the securities laws of the states or
other jurisdictions where the Stock is to be offered or sold (including the
costs of preparing, printing and mailing the "Blue Sky" surveys and the
reasonable fees and disbursements of counsel to the Underwriters in
connection therewith, not to exceed $5,000); (x) the fees and expenses, if
any, in connection with the review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Stock (including the
reasonable fees and disbursements of counsel to the Underwriters in
connection therewith); (xi) the costs of printing certificates for the
Stock; (xii) the reasonable costs of advertising the offering, including the
placement of "tombstone" advertisements; and (xiii) all other costs and
expenses incident to the performance of the Company's obligations under this
Agreement. It is understood, however, that, except as provided in this
Section and in Section 6 hereof, the Underwriters shall pay their own costs
and expenses, including the fees and expenses of their counsel. If the sale
of the Stock provided for herein is not consummated (x) by reason of acts of
the Company, or the Underwriters with cause, pursuant to Section 7(a) hereof
which prevent this Agreement from becoming effective, (y) by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed pursuant to this Agreement or (z) for
any other reason, including the nonfulfillment of any condition of the
Underwriters' obligations set forth in Section 7(b) or Section 8 of this
Agreement (unless such failure to perform such agreement or fulfill such
condition is due to the default without cause of any Underwriter or its
counsel), then the Company shall reimburse the several Underwriters for all
reasonable, accountable out-of-pocket expenses (including reasonable fees
and expenses of their counsel) incurred by them in connection with this
Agreement and the proposed purchase of the Stock.
(n) During the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, the Company will use its best
efforts to qualify the Stock for sale under the securities laws of such
jurisdictions as the Underwriters may reasonably have designated in writing
and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose; provided,
however, the Company will not be required to submit to general service of
process in any such jurisdiction. During the period when the Prospectus is
required to be delivered under the Act or the Exchange Act, the Company
will, from time to time, prepare and file such statements, reports and other
documents, as are or may be required to continue any such qualifications in
effect for so long as the Underwriters may reasonably request for
distribution of the Stock.
(o) To use its best efforts to do and perform all things required
to be done and performed under this Agreement by it prior to, at or after
the First Delivery Date, and to satisfy
15
all conditions precedent to the delivery of the Stock.
6. Indemnification and Contribution.
--------------------------------
(a) The Company shall indemnify and hold harmless each Underwriter,
each person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) any Underwriter (each such person, a
"Control Person"), and the respective partners, directors, officers,
employees and agents of any Underwriter or Control Person from and against
any loss, claim, damage or liability, joint or several, and any action in
respect thereof, to which that Underwriter or Control Person may become
subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any breach of the
Company's representations and warranties made in this Agreement or any
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus or
the Registration Statement or Prospectus as amended or supplemented, or in
any blue sky application or other document filed in any state or other
jurisdiction in order to qualify any or all of the Stock under the
securities laws thereof (any such application, document or information being
hereinafter referred to as a "Blue Sky Application"), or arises out of, or
is based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each Underwriter and each such
Control Person and their respective partners, directors, officers, employees
and agents, as applicable, for any legal and other expenses of one firm of
legal counsel reasonably incurred by such person in investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action, notwithstanding the possibility that payments for such
expenses might later be held to be improper in which case the person
receiving them shall promptly refund them; provided, that the Company shall
--------
not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus or in the Registration Statement or the
Prospectus or any amendment or supplement thereto or in any Blue Sky
Application in reliance upon and in conformity with written information
furnished to the Company through the Underwriters by or on behalf of any
Underwriter specifically for inclusion therein; and provided further, that,
-------- -------
as to any Preliminary Prospectus, this indemnity agreement shall not inure
to the benefit of any Underwriter or any Control Person on account of any
loss, claim, damage, liability or action arising from the sale of Stock to
any person by that Underwriter if that Underwriter failed to send or give a
copy of the Prospectus, as the same may be amended or supplemented, to that
person within the time required by the Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from noncompliance by the Company
with Section 5(b), 5(c) or 5(e) hereof. The foregoing indemnity agreement is
in addition to any liability which the Company may otherwise have to any
Underwriter or any Control Person of that Underwriter.
(b) Each Underwriter, severally but not jointly, shall indemnify
and hold harmless the Company, each of its directors, each of its officers
who signed the Registration Statement, and any person who controls the
Company within the meaning of the Act ("Company Control Person"), from and
against any loss, claim, damage or liability, or any action in respect
thereof to which the Company or any such director, officer or Company
Control Person may
16
become subject, under the Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented, or in any
Blue Sky Application, or arises out of, or is based upon, the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of that Underwriter specifically for inclusion therein, and shall reimburse
the Company for any legal and other expenses of one firm of legal counsel
reasonably incurred by the Company or any such director, officer or Company
Control Person in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action, notwithstanding the
possibility that payments for such expenses might later be held to be
improper, in which case the person receiving them shall promptly refund
them. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company, or any of its
directors, officers or Company Control Persons.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 6, notify the indemnifying party
in writing of the claim or the commencement of that action, provided that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under
this Section 6. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided that
the Underwriters shall have the right to employ separate counsel to
represent those Underwriters and their respective Control Persons and other
indemnified persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Underwriters or such
indemnified persons against the Company under this Section 6 if, in the
reasonable judgment of the Underwriters, it is advisable for those
Underwriters, Control Persons and other indemnified persons to be
represented by separate counsel, and in that event the fees and expenses of
such separate counsel shall be paid by the Company. It is understood,
however, that the Company shall not, in connection with any one such claim
or action (or separate but substantially similar or related claims or
actions in the same jurisdiction) arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of more than one such separate firm of attorneys for all such Underwriters
and their respective Control Persons and other indemnified persons. Such
firm shall be designated in writing by the Underwriters. An indemnifying
party shall not be obligated to reimburse an indemnified party hereunder for
any amount paid to effect settlement of any action or claim unless such
settlement shall have been consented to in writing by the indemnifying
party, but if settled with such consent or if there be a final judgment for
the
17
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 6 shall for
any reason be unavailable to an indemnified party under Section 6(a) or 6(b)
in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Stock or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other with respect to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions
received by the Underwriters with respect to such offering, in each case as
set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof referred to above
in this Section shall be deemed to include, for purposes of this Section,
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, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Stock underwritten by it and distributed to the public
was offered to the public exceeds that amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section are several in
proportion to their respective underwriting obligations and not joint. Each
party entitled to contribution agrees that upon the service of a summons or
other initial legal process upon it in any action instituted against it in
respect to which contribution may be sought, it shall promptly give written
notice of such service to the party or parties from whom contribution may be
sought, but the omission to so notify such party or parties of any such
service shall not relieve the party from whom contribution may be sought for
any obligation it may have otherwise than under this Section.
18
(e) The indemnity and contribution agreements contained in this
Paragraph and the representations, warranties and agreements of the Company
in Sections 1 and 5 shall survive the delivery of the Stock and shall remain
in full force and effect, regardless of any termination or cancellation of
this Agreement or any investigation made by or on behalf of any indemnified
party.
7. Effective Date and Termination.
------------------------------
(a) This Agreement shall become effective at 10:00 A.M., New York
City, New York time, on the first full business day following the date on
which this Agreement is executed, or at such earlier time after the
Registration Statement becomes effective as the Underwriters shall release
the Firm Stock for public offering. Until this Agreement is effective, it
may be terminated by the Company by notice to the Underwriters or by the
Underwriters by notice to the Company. For purposes of this Agreement, the
release of the public offering of the Firm Stock shall be deemed to have
been made when the Underwriters make, by telegram or otherwise, firm offers
of the Firm Stock to securities dealers or release for publication a
newspaper advertisement relating to the Firm Stock, whichever occurs first.
(b) The obligations of the Underwriters hereunder may be terminated
by the Underwriters, in their absolute discretion, by notice given to and
received by the Company prior to delivery of and payment for the Stock, if
prior to that time (i) there has been a material adverse change in the
business, franchises, assets, properties, condition (financial or other),
results of operations or prospects of the Company and its subsidiaries taken
as a whole, (ii) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the Nasdaq National Market, or the
over-the-counter market shall have been suspended, or trading in the Common
Stock is suspended for two consecutive hours or more, or minimum prices
shall have been established on either of such exchanges or such market,
(iii) a general banking moratorium shall have been declared by federal or
Missouri state authorities, (iv) the United States becomes engaged in
hostilities or there is a significant escalation of existing hostilities
involving the United States or there is a declaration of a national
emergency or war by the United States, (v) there shall have occurred any
material adverse change in the general economic, political or financial
conditions in the United States or elsewhere, including without limitation,
as a result of terrorist activities, or any other substantial national or
international calamity or emergency and, in the judgment of the
Underwriters, the effect of any such adverse change, calamity or emergency
makes it impractical or inadvisable to proceed with the payment for and
delivery of the Stock, (vi) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority which in the opinion of the
Underwriters materially and adversely affects or will materially and
adversely affect the business, franchises, assets, properties, condition
(financial or other), results of operations or prospects of the Company and
its subsidiaries taken as a whole; (vii) the Company shall have failed,
refused or been unable, at or prior to the First Delivery Date or the Second
Delivery Date, to perform any agreement on its part to be performed
hereunder, or (viii) any other condition of the obligation of the
Underwriters hereunder is not fulfilled.
(c) Any termination of this Agreement pursuant to this Section 7
shall be without liability of any party to any other party, except as
provided in Sections 5(m) and 6 hereof.
19
8. Additional Terms and Conditions. The respective obligations of the
-------------------------------
Underwriters hereunder are subject to the accuracy, when made and on the
First Delivery Date and the Second Delivery Date, if any, of the
representations and warranties of the Company contained herein, to
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 5(c) of this Agreement; at or before the First
Delivery Date and the Second Delivery Date, if any, no stop order suspending
effectiveness of the Registration Statement shall have been issued and prior
to that time no stop order proceeding shall have been initiated or
threatened by the Commission; any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with to the reasonable satisfaction of
Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLC, counsel to the
Underwriters; and the Company shall not have filed with the Commission the
Prospectus or any amendment or supplement to the Registration Statement or
the Prospectus without the consent of the Underwriters.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the First Delivery Date or the Second Delivery Date,
if any, that the Registration Statement or the Prospectus or any amendment
or supplement thereto contains an untrue statement of a fact which, in the
reasonable opinion of Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLC,
counsel for the Underwriters, is material or omits to state a fact which, in
the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Stock and the
form of the Registration Statement and the Prospectus, other than financial
statements and other financial data, and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all respects to Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx &
Xxxxxxxxx LLC, counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxxxx Xxxxxx LLP, counsel for the Company, shall have
furnished to the Underwriters their opinion addressed to the Underwriters
(and stating that it may be relied upon by the Underwriters) and dated the
First Delivery Date and the Second Delivery Date, if any, as counsel to the
Company, and containing the opinions set forth in EXHIBIT B attached to this
---------
Agreement. Such counsel may state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
officers of the Company and its subsidiaries and certificates of public
officials, provided that such counsel shall state their belief that they and
the Company are justified in relying thereon.
(e) The Company shall have furnished to the Underwriters on each of
the First Delivery Date and the Second Delivery Date, if any, a certificate,
dated such delivery date, of its Chief Executive Officer and its Chief
Financial Officer stating that:
20
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such delivery date; the
Company has complied with all the agreements and satisfied all the
conditions herein on its part to be performed or satisfied at or prior to
such delivery date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for such purpose
have been instituted or, to the Company's best knowledge, threatened; and
(iii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion, (A) as of the Effective
Date, the Registration Statement did not include any untrue statement of a
material fact and did not 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, and on such
delivery date, the Prospectus (including any documents filed under the
Exchange Act and deemed to be incorporated by reference into the Prospectus)
does not include any untrue statement of a material fact and does not 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, and (B) since the Effective Date, no event has
occurred which should have been set forth in the Prospectus or a supplement
thereto or amendment thereof which has not been set forth in such a
supplement or amendment and there has been no document required to be filed
under the Exchange Act and the Rules and Regulations that upon such filing
would be deemed to be incorporated by reference into the Prospectus that has
not been so filed.
(f) The Company shall have furnished to the Underwriters on each of
the First Delivery Date and the Second Delivery Date, if any, a letter of
Ernst & Young, LLP, addressed to the Underwriters and dated such delivery
date, confirming that they are independent public accountants within the
meaning of the Act, have not performed any activities for or on behalf of
the Company or any of its subsidiaries that are prohibited under the
Exchange Act or the Rules and Regulations or for which Audit Committee
pre-approval is required under the Exchange Act and the Rules and
Regulations but was not so obtained and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, stating, as of the date of
such letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than three days prior to the
date of such letter), the conclusions and findings of such firm with respect
to the financial information and other matters covered by its letter
delivered to the Underwriters concurrently with the execution of this
Agreement and confirming in all material respects the conclusions and
findings set forth in such prior letter.
(g) The Underwriters shall have received from Barack Xxxxxxxxxx
Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLC, counsel for the Underwriters, an opinion
dated the First Delivery Date and the Second Delivery Date, if any, relating
to such matters as may be agreed upon by the Underwriters and Barack
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLC., counsel for the
Underwriters.
(h) Since the Effective Date, neither the Company nor any of its
subsidiaries
21
shall have sustained any loss by fire, flood, accident or other calamity, or
shall have become a party to or the subject of any litigation, which has a
material adverse effect on the business, franchise, assets, properties,
condition (financial or other), results of operations or prospects of the
Company and its subsidiaries taken as a whole, nor shall there have been a
material adverse change in the general affairs, prospects, business, key
personnel, capitalization, financial position or net worth of the Company
and its subsidiaries, whether or not arising in the ordinary course of
business, which loss, litigation or change, in the judgment of the
Underwriters, shall render it inadvisable to proceed with the delivery of
the Stock.
(i) The Lock-up Letters described in Section 5(k) shall be in full
force and effect.
(j) All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in form and substance reasonably
satisfactory to Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLC,
counsel for the Underwriters.
9. Notice. The Company shall be entitled to act and rely upon any request,
------
consent, notice or agreement given or made by Xxxx Xxxxx Xxxx Xxxxxx,
Incorporated on behalf of the Underwriters. Any notice to the Underwriters
shall be sufficient if given in writing or by telefax or telecopy addressed
to (a) Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, 000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx (telecopy no.
202-454-5299), any notice to the Company shall be sufficient if given in
writing or by telefax or telecopy addressed to the Company at 00000 Xxxxxxx
Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxx (telecopy no.
314-727-3494), with a copy to Xxxxxxxx Xxxxxx LLP, Xxx X.X. Xxxx Xxxxx,
Xxxxx 0000 Xx. Xxxxx, Xxxxxxxx, 00000, Attention: Xxxxxx X. Xxxx, Esq.
(telecopy no. 314-552-7000).
10. Parties. This Agreement shall inure to the benefit of and be binding
-------
upon the Underwriters, the Company and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of
only those persons, except that (a) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall
also be deemed to be for the benefit of any Control Person and (b) the
indemnity agreement of the Underwriters contained in Section 6 of this
Agreement shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this section, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
11. Definition of "Business Day" and "Subsidiary". For purposes of this
---------------------------------------------
Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading, and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations.
12. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Maryland, without giving effect to
the choice of law or conflicts of laws principles thereof.
22
13. Counterparts. This Agreement may be signed in one or more counterparts,
------------
each of which shall constitute an original and all of which together shall
constitute one and the same Agreement.
14. Information Furnished by Underwriters. The Company hereby acknowledges
-------------------------------------
for all purposes under this Agreement that the statements set forth under
the caption "Underwriting" in the Prospectus, other than the eighth
paragraph describing the Company's expenses in connection with the offering
and sale of the Stock and the second and third to last paragraphs describing
the stabilization and passive market making activities of the Underwriters
therein constitute the only information furnished in writing to the Company
by or on behalf of the Underwriters for use in the Registration Statement or
Prospectus.
[SIGNATURE PAGE TO FOLLOW]
23
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
Allegiant Bancorp, Inc.
By:
------------------------------------------
Xxxxx X. Xxxxx, Chief Executive Officer
Confirmed and accepted as of
the date first above mentioned:
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
For itself and as the representative of the
several Underwriters named on Schedule I
hereto:
By:
------------------------------------------
Xxxx X. Xxxxxxx
Managing Director
24
SCHEDULE I
Number of
Underwriters Shares
------------ ---------
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
RBC Xxxx Xxxxxxxx Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
Xxxx Xxxxxx Investments, Inc.
---------
Total 1,700,000
---------
EXHIBIT A
---------
FORM OF LOCK-UP AGREEMENT
AGREEMENT REGARDING THE SALE OF
ALLEGIANT BANCORP, INC. SECURITIES
__________, 2003
Reference is made to the registration statement on Form S-3 of
Allegiant Bancorp, Inc. (the "Company") (as the same may hereafter be
amended, the "Registration Statement") pursuant to which shares of common
stock of the Company, $.01 par value per share (the "Common Stock"), are
being registered under the Securities Act of 1933, as amended (the "Act"),
for public sale through Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, RBC Xxxx
Xxxxxxxx Inc., Xxxxxx, Xxxxxxxx & Company, Incorporated and Xxxx Xxxxxx
Investments, Inc., (the "Underwriters").
The undersigned hereby agrees that the undersigned will not,
directly or indirectly, sell or otherwise dispose of, or offer or contract
to sell any shares of Common Stock or any securities convertible into, or
exercisable for, shares of the Common Stock, owned of record or beneficially
by the undersigned on the date hereof or on the effective date of the
Registration Statement (the "Effective Date") for 180 days after the
Effective Date (the "Lock-up Period") except (x) for the surrender of shares
of Common Stock to the Company as consideration paid to exercise any or all
of such person's options to purchase shares of Common Stock granted by the
Company, (y) for sales made at the direction of the plan fiduciary of such
person's individual retirement account solely in order to fund cash
distributions from such account, or (z) with the prior written consent of
the Underwriters (which consent shall not be unreasonably withheld).
Notwithstanding the foregoing, nothing contained in the preceding sentence
shall be deemed to prevent the undersigned from exercising his/her options
to purchase Common Stock (provided that he/she may not directly or
indirectly sell or otherwise dispose of, or offer or contract to sell, any
shares of Common Stock so purchased except as explicitly provided in (x),
(y) or (z) of the immediately preceding sentence). The undersigned
acknowledges that the Company at the request of the Underwriters may
instruct the transfer agent of the Company to place stop transfer
instructions against shares of the Common Stock so owned by the undersigned
during such Lock-up Period, which will require the transfer agent to notify
the Company and obtain the Company's approval prior to any transfer of
record during the Lock-up Period.
The undersigned represents and acknowledges that this Agreement is
being executed in order to induce the Underwriters to enter into an
underwriting agreement with respect to the Company's public offering, and
that the Underwriters will not enter into an underwriting agreement in the
absence of this Agreement.
---------------------------------
(Signature)
---------------------------------
(Print Name)
EXHIBIT B
---------
LEGAL OPINION OF XXXXXXXX XXXXXX LLP, COUNSEL TO THE COMPANY
1. The Company has been duly organized and is a validly existing
corporation in good standing under the laws of Missouri. Each of the
Subsidiaries has been duly organized and is validly 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 or other applicable
form of business organization and is in good standing in each jurisdiction
in which its ownership or lease of real property or the conduct of its
business makes such qualification necessary, except when the failure to so
qualify would not have a material adverse effect on the business,
franchises, assets, properties, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries taken as a
whole.
2. Allegiant Bank, Allegiant Capital Corporation, Allegiant
Investment Counselors, Allegiant Investment Company, Allegiant Real Estate
Investment Trust, Equality Commodity Corporation, Equality Mortgage Company,
Allegiant Insurance Services Co., Bank of Ste. Xxxxxxxxx, Xxxxxx Road, Inc.,
Allegiant Capital Trust I, Allegiant Capital Trust II and Allegiant
Community Development Corporation are the only subsidiaries of the Company
and, except as may be disclosed in the Registration Statement and the
Prospectus, all outstanding shares of capital stock of Allegiant Bank,
Allegiant Investment Company, Allegiant Real Estate Investment Trust,
Equality Mortgage Company, Allegiant Insurance Services Co., Bank of Ste.
Xxxxxxxxx, Xxxxxx Road, Inc., Allegiant Capital Trust I, Allegiant Capital
Trust II and Allegiant Community Development Corporation are owned, directly
or indirectly, by the Company, and except for the security interest held by
U.S. Bank pursuant to the terms of the Company's credit facility and the
interest of First Banks, Inc. to purchase the shares of stock of Bank of
Ste. Xxxxxxxxx pursuant to the terms of that certain Agreement and Plan of
Exchange dated September 17, 2002, free and clear of any lien, pledge and
encumbrance or any claim of any third party and are duly authorized, validly
issued, fully paid and non-assessable; provided, however, that certain trust
preferred securities of Allegiant Capital Trust I and Allegiant Capital
Trust II are publicly held.
3. The Company has all necessary power and authority, corporate or
otherwise, to enter into and perform the Underwriting Agreement, dated as of
_______________, 2003 (the "Agreement") and to effect the transactions
contemplated thereby. The Company's performance of its obligations under the
Agreement have been duly authorized by all necessary corporate action. The
Agreement has been duly executed and delivered by and on behalf of the
Company and, assuming due authorization, execution and delivery of such
Agreement by the other parties thereto, constitutes the legal, valid and
binding agreement of the Company, enforceable in accordance with its 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 and limitations under the federal
and state securities laws as to the enforceability of indemnification
provisions. No approval, consent, order, authorization, designation,
declaration
or filing by or with any regulatory, administrative or other governmental
body or, to the best of our knowledge and information, after due inquiry,
third party, is necessary in connection with the execution and delivery of
the Agreement and the consummation of the transactions contemplated therein
or as contemplated by the Prospectus (other than as may be required by the
National Association of Securities Dealers, Inc. or as required by state
securities or blue sky laws, as to which we express no opinion) except such
as have been obtained or made [specifying the same].
4. The authorized capital stock of the Company is as set forth in
the Prospectus under the caption "Capitalization" under the column titled
"Actual." Based solely upon a certificate received from the Company's
transfer agent, the issued and outstanding capital stock of the Company is
as set forth in the Prospectus under the caption "Capitalization" under the
column titled "Actual." All of the shares of outstanding capital stock of
the Company have been duly authorized and validly issued, are non-assessable
and were not issued in violation of any preemptive rights pursuant to
applicable law or, to the best of our knowledge, other rights to subscribe
for or purchase securities. The shares of outstanding capital stock of the
Company indicated on Schedule I hereto and, based solely upon a certificate
received from the Company, all other outstanding shares of capital stock of
the Company are fully paid. Except as set forth in the Registration
Statement and the Prospectus and except for stock options that we are aware
have been granted to employees and directors of the Company and the
Subsidiaries (which have been described in the Registration Statement to the
extent required by the 1933 Act or the 1934 Act), to the best of our
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, and, with the exception of the
acquisition of Common Stock of Bank of Ste. Xxxxxxxxx pursuant to the terms
of the Agreement and Plan of Exchange dated September 17, 2002 between the
Company and First Banks, Inc. there are no preemptive or other rights to
subscribe for or to purchase, nor is there any restriction upon the voting
or transfer of, any shares of Common Stock, including without limitation,
the Stock, pursuant to the Company's corporate charter or bylaws or
agreement or other investment known to such counsel.
5. The Stock has been duly authorized; upon payment for the Stock
pursuant to the terms of this Agreement, the Stock will be validly issued,
fully paid and non-assessable, with no personal liability attaching to the
ownership thereof.
6. To the best of our knowledge, after due inquiry, neither the
filing of the Registration Statement or any amendment thereto nor the offer
and sale of the Stock to the Underwriters as contemplated by the Agreement
gives rise to any rights, nor do any rights exist, for or relating to the
registration under the 1933 Act of any securities of the Company.
7. The Registration Statement has become effective under the 1933
Act, the Prospectus has been filed as required by the Agreement, if
necessary, and to the best of our knowledge: (a) after telephonic inquiry of
the Commission on the date hereof, 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 we express
no opinion) comply as
to form in all material respects with the requirements of the 1933 Act, the
Rules and Regulations, and the Exchange Act.
8. The descriptions in or incorporated into 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 we do
not know of any action, suit, proceeding, inquiry or investigation before or
brought by any government, government authority, agency or instrumentality
or court, domestic or foreign, including, without limitation, the Federal
Reserve Board, the Division of Finance of the State of Missouri or the FDIC
(each, a "Governmental Entity") required to be described in the Prospectus
that is 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 are not described
and filed as required.
9. Neither the filing of the Registration Statement, any amendment,
nor the execution and performance of the Agreement, nor the consummation of
the transactions contemplated therein, will contravene any of the provisions
of, or result in a default under (nor, to the best of our knowledge, has any
event occurred which with notice or lapse of time, or both, would constitute
a breach or default under), any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, permit, license, franchise
agreement, debenture, deed of trust or other agreement or instrument known
to us to which the Company is a party or by which its property is bound
(except for such contravention or default which would not have a material
adverse effect on the business, franchises, assets, properties, condition
(financial or other), results of operations or prospects of the Company and
its subsidiaries taken as a whole), or violate any of the provisions of the
Articles of Incorporation, as amended, or by-laws of the Company, as
currently in effect, or violate any statute, judgment, decree, order, rule
or regulation known to us.
10. Neither the Company nor any subsidiary of the Company is an
"investment company" or an entity controlled by an "investment company"
within the meaning of such terms under the Investment Company Act of 1940
and the rules and regulations thereunder.
11. The statements in the Prospectus under the caption "Description
of Capital Stock," insofar as such statements constitute matters of law
applicable to the Company or summaries of documents, fairly present the
information required to be included therein in all material respects. The
Stock conforms as to legal matters in all material respects to the
statements concerning the common stock of the Company contained in the
Prospectus under the caption "Description of Capital Stock."
12. The Company satisfied, on the date of initial filing of the
Registration Statement and on the date of filing of any post-effective
amendment filed on or before the date hereof and any registration statement
pursuant to Rule 462 under the 1993 Act filed on or before the date hereof,
the eligibility requirements to use Form S-3 to register offerings and sales
of its securities, and the Company's offer to sell and its sale of the Stock
pursuant to the Registration Statement is in compliance with the
registration provisions of the 1933 Act.
In addition, we have participated in conferences with officers and
other representatives of the Company, representatives of the independent
public accountants of the Company and representatives of the Underwriters
and their counsel, at which the contents of the Registration Statement and
the Prospectus and related matters were discussed and, although we are not
passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except as specifically set forth above) and
have 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 our attention
that lead us to believe that 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 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 First Delivery and Second
Delivery 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 we express no views
with respect to the financial statements, schedules and other financial and
statistical data included in the Registration Statement or the Prospectus.
