1,850,000 Preferred Securities
IUB Capital Trust
____ % Cumulative Trust Preferred Securities
(Liquidation Amount of $10 per Preferred Security)
UNDERWRITING AGREEMENT
_______________, 1997
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Ladies and Gentlemen:
Indiana United Bancorp, an Indiana corporation (the "Company"), and
its financing subsidiary, IUB Capital Trust, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the "Offerors"), propose
that the Trust issue and sell to Xxxxxx, Xxxxxxxx & Company, Incorporated
(sometimes referred to herein as the "Underwriter"), pursuant to the terms of
this Agreement, 1,850,000 of the Trust's _____ % Cumulative Trust Preferred
Securities, with a liquidation amount of $10.00 per preferred security (the
"Preferred Securities"), to be issued under the Trust Agreement (as hereinafter
defined), the terms of which are more fully described in the Prospectus (as
hereinafter defined). The aforementioned 1,850,000 Preferred Securities to be
sold to the Underwriter are herein called the "Firm Preferred Securities."
Solely for the purpose of covering over-allotments in the sale of the Firm
Preferred Securities, the Offerors further propose that the Trust issue and sell
to the Underwriter, at its option, up to an additional 277,500 Preferred
Securities (the "Option Preferred Securities") upon exercise of the
over-allotment option granted in Section 1 hereof. The Firm Preferred
Securities and any Option Preferred Securities are herein collectively
referred to as the "Designated Preferred Securities."
The Offerors hereby confirm as follows their agreement with you in
connection with the proposed purchase of the Designated Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES;
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to the Underwriter and
the Underwriter agrees to purchase from the Trust, at a purchase price of $10.00
per share (the "Purchase Price"), the Firm Preferred Securities. Because the
proceeds from the sale of the Firm Preferred Securities will be used to purchase
from the Company its Debentures (as hereinafter defined and as described in the
Prospectus), the Company shall pay to the Underwriter a commission of $______
per Firm Preferred Security purchased (the "Firm Preferred Securities
Commission").
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriter an option to purchase all or
any portion of the 277,500 Option Preferred Securities, and upon the exercise of
such option in accordance with this Section 1, the Offerors hereby agree that
the Trust shall issue and sell to the Underwriter all or any portion of the
Option Preferred Securities at the same Purchase Price per share paid for the
Firm Preferred Securities. Because the proceeds from the sale of the Option
Preferred Securities will be used to purchase from the Company its Debentures,
the Company shall pay to the Underwriter a commission of $_____ per Option
Preferred Security for each Option Preferred Security purchased (the "Option
Preferred Securities Commission"). The option hereby granted (the "Option")
shall expire 30 days after the date upon which the Registration Statement (as
hereinafter defined) becomes effective and may be exercised only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Firm Preferred Securities. The Option may be exercised
in whole or in part at any time (but not more than once) by the Underwriter
giving notice (confirmed in writing) to the Trust setting forth the number of
Option Preferred Securities as to which the Underwriter is exercising the Option
and the time, date and place for payment and delivery of certificates for such
Option Preferred Securities. Such time and date of payment and delivery for the
Option Preferred Securities (the "Option Closing Date") shall be determined by
the Underwriter, but shall not be earlier than two nor later than five business
days after the exercise of such Option, nor in any event prior to the Closing
Date (as hereinafter defined). The Option Closing Date may be the same as the
Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of certificates for the Firm Preferred Securities shall
be made at the Underwriter's offices, located at 000 Xxxxx Xxxxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000, or such other place as shall be agreed to by the Underwriter and
the Offerors, at 10:00 a.m., St. Louis time, on _____________, 1997, or at such
other time not more than five full business days thereafter as the Offerors and
the Underwriter shall determine (the "Closing Date"). If the Underwriter
exercises the Option to purchase any or all of the Option Preferred Securities,
payment of the Purchase Price and Option Preferred Securities Commission and
delivery of certificates for such Option Preferred Securities shall be made on
the Option Closing Date at the Underwriter's offices, or at such other place as
the Offerors and the Underwriter shall determine. Such payments shall be made
to an account designated by the Trust by wire transfer or certified or bank
cashier's check, in same day funds, in the amount of the Purchase Price
therefor, against delivery by or on behalf of the Trust to the Underwriter of
certificates for the Designated Preferred Securities to be purchased by the
Underwriter.
The Agreement contained herein with respect to the timing of the
Closing Date and Option Closing Date is intended to, and does, constitute an
express agreement, as described in Rule 15c6-[1(c)/1(a)] and (d) promulgated
under the 1934 Act (as defined herein), for a settlement date other than
[FOUR/THREE] business days after the date of the contract.
Certificates for Designated Preferred Securities to be purchased by
the Underwriter shall be delivered by the Offerors in fully registered form in
such authorized denominations and registered in such names as the Underwriter
shall request in writing not later than 12:00 noon, St. Louis time, two business
days prior to the Closing Date and, if applicable, the Option Closing Date.
Certificates for Designated Preferred Securities to be purchased by the
Underwriter shall be made available by the Offerors to the Underwriter for
inspection, checking and packaging at such office as the Underwriter may
designate in writing not later than 1:00 p.m., St. Louis time, on the last
business day prior to the Closing Date and, if applicable, on the last business
day prior to the Option Closing Date.
Time shall be of the essence, and delivery of the certificates for the
Designated Preferred Securities at the time and place specified pursuant to this
Agreement is a further condition of the Underwriter's obligations hereunder.
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(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
State Street Bank and Trust Company, as Property Trustee, Wilmington Trust
Company, as Delaware Trustee, the Administrative Trustees named therein,
(collectively, the "Trustees"), and the Company, in substantially the form
heretofore delivered to the Underwriter, said Agreement being hereinafter
referred to as the "Trust Agreement." In connection with the issuance of the
Designated Preferred Securities, the Company proposes (i) to issue its
Subordinated Debentures ( the "Debentures") pursuant to an Indenture, to be
dated as of ______________, 1997, between the Company and State Street Bank
and Trust Company, as Trustee (the "Indenture") and (ii) to guarantee certain
payments on the Designated Preferred Securities pursuant to a Preferred
Securities Guarantee Agreement between the Company and State Street Bank and
Trust Company, as guarantee trustee (the "Guarantee"), to the extent described
therein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to, and
agree with, the Underwriter that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities Exchange
Act of 1934, as amended (the "1934 Act") and the rules and regulations
thereunder (the "1934 Act Regulations") at the time they were filed with
the Commission, complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading.
(ii) The Offerors have prepared and filed with the Commission a
registration statement on Form S-2 (File Numbers 333 _______ and
333 _____-01) for the registration of the Designated Preferred Securities,
the Guarantee and up to $21,275,000 aggregate principal amount of Debentures
under the Securities Act of 1933, as amended (the "1933 Act"), including
the related prospectus subject to completion, and one or more amendments to
such registration statement may have been so filed, in each case in
conformity in all material respects with the requirements of the 1933 Act,
the rules and regulations promulgated thereunder (the "1933 Act
Regulations") and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations thereunder. Copies of such
registration statement, including any amendments thereto, each Preliminary
Prospectus (as defined herein) contained therein and the exhibits,
financial statements and schedules to such registration statement, as
finally amended and revised, have heretofore been delivered by the Offerors
to the Underwriter. After the execution of this Agreement, the Offerors
will file with the Commission (A) if such registration statement, as it may
have been amended, has been declared by the Commission to be effective
under the 1933 Act, a prospectus in the form most recently included in an
amendment to such registration statement (or, if no such amendment shall
have been filed, in such registration statement), with such changes or
insertions as are required by Rule 430A of the 1933 Act Regulations ("Rule
430A") or permitted by Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)") and as have been provided to and not objected to by the
Underwriter prior to (or as are agreed to by the Underwriter subsequent to)
the execution of this Agreement, or (B) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the 1933 Act, an amendment to such registration statement,
including a form of final prospectus, necessary to permit such registration
statement to become effective, a copy of which amendment has been furnished
to and not objected to by the Underwriter prior to (or is agreed to by the
Underwriter
3
subsequent to) the execution of this Agreement. As used in this
Agreement, the term "Registration Statement" means such registration
statement, as amended at the time when it was or is declared effective
under the 1933 Act, including (1) all financial schedules and exhibits
thereto, (2) all documents (or portions thereof) incorporated by
reference therein filed under the 1934 Act, and (3) any information
omitted therefrom pursuant to Rule 430A and included in the Prospectus
(as hereinafter defined); the term "Preliminary Prospectus" means each
prospectus subject to completion filed with such registration statement
or any amendment thereto including all documents (or portions thereof)
incorporated by reference therein under the 1934 Act (including the
prospectus subject to completion, if any, included in the Registration
Statement and each prospectus filed pursuant to Rule 424(a) under the
1933 Act); and the term "Prospectus" means the prospectus first filed
with the Commission pursuant to Rule 424(b)(1) or (4) or, if no
prospectus is required to be filed pursuant to Rule 424(b)(1) or (4), the
prospectus included in the Registration Statement, in each case including
the financial schedules and all documents (or portions thereof)
incorporated by reference therein under the 1934 Act. The date on which
the Registration Statement becomes effective is hereinafter referred to
as the "Effective Date."
(iii) The documents incorporated by reference in the
Preliminary Prospectus or Prospectus or from which information is so
incorporated by reference, when they became effective or were filed with
the Commission, as the case may be, complied in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations, and when
read together and with the other information in the Preliminary Prospectus
or Prospectus, as the case may be, at the time the Registration Statement
became or becomes effective and at the Closing Date and any Option Closing
Date, did not or will not, as the case may be, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) No order preventing or suspending the use of any Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) has been issued by the Commission, nor has the Commission, to
the knowledge of the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary Prospectus, at
the time of filing thereof, (A) complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and (B) did not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(v) At the Effective Date and at all times subsequent thereto,
up to and including the Closing Date and, if applicable, the Option Closing
Date, the Registration Statement and any post-effective amendment thereto
(A) complied and will comply in all material respects with the requirements
of the 1933 Act, the 1933 Act Regulations and the Trust Indenture Act (and
the rules and regulations thereunder) and (B) did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
not misleading. At the Effective Date and at all times when the Prospectus
is required to be delivered in connection with offers and sales of
Designated Preferred Securities, including, without limitation, the Closing
Date and, if applicable, the Option Closing Date, the Prospectus, as
amended or supplemented, (A) complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and the Trust Indenture Act (and the rules and regulations thereunder) and
(B) did not contain and will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
4
(vi) (A) The Company is duly organized, validly existing and in
good standing under the laws of the State of Indiana, with full corporate
and other power and authority to own, lease and operate its properties and
conduct its business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) and as currently being conducted
and is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the Delaware Business
Trust Act with the power and authority (trust and other) to own its
property and conduct its business as described in the Registration
Statement and Prospectus, to issue and sell its common securities (the
"Common Securities") to the Company pursuant to the Trust Agreement, to
issue and sell the Designated Preferred Securities, to enter into and
perform its obligations under this Agreement and to consummate the
transactions herein contemplated; the Trust has no subsidiaries and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or the ownership of its property
requires such qualification; the Trust has conducted and will conduct no
business other than the transactions contemplated by this Agreement and
described in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust Agreement and
the agreements and instruments contemplated by the Trust Agreement and
described in the Prospectus; the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the Prospectus; the
Trust is not a party to or subject to any action, suit or proceeding of any
nature; the Trust is not, and at the Closing Date or any Option Closing
Date will not be classified as an association taxable as a corporation for
United States federal income tax purposes; and the Trust is, and as of the
Closing Date or any Option Closing Date will be, treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles.
(vii) The Company has three (3) subsidiaries, the Trust, Union
Bank and Trust Company of Indiana and Regional Federal Savings Bank, New
Albany, Indiana (collectively, the "Banks"; and together with the Trust,
the "Subsidiaries"). The Company does not own or control, directly or
indirectly, more than 5% of any class of equity security of any corporation,
association or other entity other than the Subsidiaries. Each Subsidiary
is a bank, corporation or business trust duly organized, validly existing
and in good standing under the laws of its respective jurisdiction of
incorporation. Each such Subsidiary has full corporate and other power
and authority to own, lease and operate its properties and to conduct its
business as described in and contemplated by the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted. The deposit
accounts of the Banks are insured by the Bank Insurance Fund administered
by the Federal Deposit Insurance Corporation (the "FDIC") up to the maximum
amount provided by law; and no proceedings for the modification,
termination or revocation of any such insurance are pending or threatened.
(viii) The Company and each of the Subsidiaries is duly qualified
to transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property or conducts its
business so as to require such qualification. All of the issued and
outstanding shares of capital stock of the Subsidiaries (A) have been duly
authorized and are validly issued, (B) are fully paid and nonassessable,
except to the extent such shares may be deemed assessable under 12 U.S.C.
Section 55 or 12 U.S.C. Section 1831o, and (C) except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), are directly owned by the
5
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon voting or transfer, preemptive rights, claim
or equity. There are no outstanding rights, warrants or options to acquire
or instruments convertible into or exchangeable for any capital stock or
equity securities of the Offerors or the Subsidiaries.
(ix) The capital stock of the Company and the equity securities
of the Trust conform to the description thereof contained in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus). The outstanding shares of capital stock and equity securities
of each Offeror have been duly authorized and validly issued and are fully
paid and nonassessable, and no such shares were issued in violation of the
preemptive or similar rights of any security holder of an Offeror; no
person has any preemptive or similar right to purchase any shares of
capital stock or equity securities of the Offerors. Except as disclosed in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there are no outstanding rights, options or
warrants to acquire any securities of the Offerors, and there are no
outstanding securities convertible into or exchangeable for any such
securities and no restrictions upon the voting or transfer of any capital
stock of the Company or equity securities of the Trust pursuant to the
Company's corporate charter or bylaws, the Trust Agreement or any agreement
or other instrument to which an Offeror is a party or by which an Offeror
is bound.
(x) (A) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in accordance
with and upon the terms and conditions set forth in this Agreement, the
Trust Agreement, the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
All corporate and trust action required to be taken by the Offerors for the
authorization, issuance, sale and delivery of the Designated Preferred
Securities in accordance with such terms and conditions has been validly
and sufficiently taken. The Designated Preferred Securities, when
delivered in accordance with this Agreement, will be duly and validly
issued and outstanding, will be fully paid and nonassessable undivided
beneficial interests in the assets of the Trust, will be entitled to the
benefits of the Trust Agreement, will not be issued in violation of or
subject to any preemptive or similar rights, and will conform to the
description thereof in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and the Trust Agreement. None of the Designated Preferred
Securities, immediately prior to delivery, will be subject to any security
interest, lien, mortgage, pledge, encumbrance, restriction upon voting or
transfer, preemptive rights, claim, equity or other defect.
(B) The Debentures have been duly and validly authorized,
and, when duly and validly executed, authenticated and issued as provided
in the Indenture and delivered to the Trust pursuant to the Trust
Agreement, will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and will conform to the
description thereof contained in the Prospectus.
(C) The Guarantee has been duly and validly authorized,
and, when duly and validly executed and delivered to the guarantee trustee
for the benefit of the Trust, will constitute a valid and legally binding
obligation of the Company and will conform to the description thereof
contained in the Prospectus.
(D) The Agreement as to Expenses and Liabilities between
the Company and the Trust (the "Expense Agreement") has been duly and
validly authorized, and, when duly and validly executed and delivered by
the Company, will constitute a valid and legally binding obligation of the
Company and will conform to the description thereof contained in the
Prospectus.
6
(xi) The Offerors and the Subsidiaries have complied in all
material respects with all federal, state and local statutes, regulations,
ordinances and rules applicable to the ownership and operation of their
properties or the conduct of their businesses as described in and
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) and
as currently being conducted.
(xii) The Offerors and the Subsidiaries have all material
permits, easements, consents, licenses, franchises and other governmental
and regulatory authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own and lease
their properties and conduct their businesses in the manner described in
and contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus)
and as currently being conducted in all material respects. All such
Permits are in full force and effect and each of the Offerors and the
Subsidiaries are in all material respects complying therewith, and no event
has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or will result in any other material
impairment of the rights of the holder of any such Permit. Such Permits
contain no restrictions that would materially impair the ability of the
Company or the Subsidiaries to conduct their businesses in the manner
consistent with their past practices. Neither the Offerors nor any of the
Subsidiaries has received notice or otherwise has knowledge of any
proceeding or action relating to the revocation or modification of any such
Permit.
(xiii) Neither of the Offerors nor any of the Subsidiaries is
in breach or violation of its corporate charter, by-laws or other governing
documents (including, without limitation, the Trust Agreement) in any
material respect. Neither of the Offerors nor any of the Subsidiaries is,
and no other party is, in violation, breach or default (with or without
notice or lapse of time or both) in the performance or observance of any
term, covenant, agreement, obligation, representation, warranty or
condition contained in (A) any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise, license, Permit or
any other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, and no other party has asserted that
any of the Offerors or any of the Subsidiaries is in such violation, breach
or default, or (B) any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, having jurisdiction over the Offerors or the
Subsidiaries or any of their respective properties.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus in not in existence, the most recent
Preliminary Prospectus) do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the Offerors or the Subsidiaries
or the Designated Preferred Securities pursuant to, constitute a breach or
violation of, or constitute a default under, with or without notice or
lapse of time or both, any of the terms, provisions or conditions of the
charter or by-laws of the Company or the Subsidiaries, the Trust Agreement,
the Guarantee, the Indenture, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise, license, Permit or
any other agreement or instrument to which any of the Offerors or any of
the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Offerors
or the Subsidiaries or any of their respective properties. No
authorization, approval, consent or order of or filing, registration or
qualification with, any person (including, without limitation, any court,
governmental body or authority) is required
7
in connection with the transactions contemplated by this Agreement, the
Trust Agreement, the Indenture, the Guarantee, the Registration Statement
and the Prospectus, except such as have been obtained under the 1933 Act,
the Trust Indenture Act and from the Nasdaq National Market relating to
the listing of the Designated Preferred Securities, and such as may be
required under state securities laws or Interpretations or Rules of the
National Association of Securities Dealers, Inc. ("NASD") in connection
with the purchase and distribution of the Designated Preferred Securities
by the Underwriter.
(xv) The Offerors have all requisite corporate power and
authority to enter into this Agreement and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors and constitutes
the legal, valid and binding agreement of the Offerors, enforceable against
the Offerors in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and by bankruptcy or
other laws relating to or affecting creditors' rights generally and except
as any indemnification or contribution provisions thereof may be limited
under applicable securities laws. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly authorized
by the Company, and, when executed and delivered by the Company on the
Closing Date, each of said agreements will constitute a valid and legally
binding obligation of the Company and will be enforceable against the
Company in accordance with its terms, except as the enforcement thereof may
be limited by general principles of equity and by bankruptcy or other laws
relating to or affecting creditors' rights generally and except as any
indemnification or contribution provisions thereof may be limited under
applicable securities laws. Each of the Indenture, the Trust Agreement and
the Guarantee has been duly qualified under the Trust Indenture Act and
will conform to the description thereof contained in the Prospectus.
(xvi) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to all
personal property owned by them and material to their businesses, in each
case free and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects; and all of
the leases under which the Company or the Subsidiaries hold real or
personal property are valid, existing and enforceable leases and in full
force and effect, and neither the Company nor any of the Subsidiaries is in
default in any material respect of any of the terms or provisions of any
leases.
(xvii) Geo. X. Xxxxx & Co., who have certified certain of the
consolidated financial statements of the Company and the Subsidiaries
including the notes thereto, included by incorporation by reference or
otherwise in the Registration Statement and Prospectus, are independent
public accountants with respect to the Company and the Subsidiaries as
required by the 1933 Act and the 1933 Act Regulations.
(xviii) The consolidated financial statements, including the
notes thereto, included by incorporation by reference or otherwise in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) with respect to the
Company and the Subsidiaries, comply in all material respects with the 1933
Act and the 1933 Act Regulations and present fairly the consolidated
financial position of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations, cash flows and
shareholders' equity of the Company and the Subsidiaries for the periods
specified and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The selected and
summary consolidated financial data concerning the Company and the
Subsidiaries included in the Registration Statement and the Prospectus (or
such Preliminary Prospectus) comply in all material respects with the 1933
Act and the 1933 Act Regulations, present fairly the information set forth
therein, and have been compiled on a basis consistent with that of the
consolidated financial statements
8
of the Offerors and the Subsidiaries in the Registration Statement and the
Prospectus (or such Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration Statement
and the Prospectus (or such Preliminary Prospectus) complies in all material
respects with the 1933 Act and the 1933 Act Regulations, presents fairly
the information shown therein, and to the extent applicable has been
compiled on a basis consistent with the consolidated financial statements
of the Company and the Subsidiaries included in the Registration Statement
and the Prospectus (or such Preliminary Prospectus).
(xix) The consolidated financial statements, including the
notes thereto, included by incorporation by reference or otherwise in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) with respect to P.T.C.
Bancorp, an Indiana bank holding company, and its wholly owned subsidiary,
Peoples Trust Company (P.T.C. Bancorp and Peoples Trust Company are
collectively referred to herein as "PTC"), comply in all material respects
with the 1933 Act and the 1933 Act Regulations and present fairly the
consolidated financial position of PTC as of the dates indicated and the
consolidated results of operations, cash flows and shareholders' equity of
PTC for the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis.
The selected and summary consolidated financial data concerning PTC
included in the Registration Statement and the Prospectus (or such
Preliminary Prospectus) comply in all material respects with the 1933 Act
and the 1933 Act Regulations, present fairly the information set forth
therein, and have been compiled on a basis consistent with that of the
consolidated financial statements of PTC in the Registration Statement and
the Prospectus (or such Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) complies in
all material respects with the 1933 Act and the 1933 Act Regulations,
presents fairly the information shown therein, and to the extent applicable
has been compiled on a basis consistent with the consolidated financial
statements of PTC included in the Registration Statement and the Prospectus
(or such Preliminary Prospectus).
(xx) The pro forma condensed combining financial statements of
the Company, the Subsidiaries, and PTC and the pro forma summary
information for such entities included by incorporation by reference or
otherwise in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
comply in form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and the pro forma
adjustments to the historical amounts in the compilation of those
statements comply with such accounting requirements and are reasonable.
(xxi) All of the representations and warranties of the
Company, and to the best knowledge and belief of the Company after due
inquiry, all of the representations and warranties of PTC, contained in
that certain Agreement and Plan of Merger by and between the Company and
PTC dated as of _______, 1997 ("Merger Agreement"), are true and correct in
all material respects, and all of the covenants and agreements of the
Company contained in the Merger Agreement which by their terms were to be
complied with as of the date hereof have been complied with by the Company
in all material respects, except to the extent that a breach of such
representations and warranties or noncompliance with such covenants and
agreements does not have a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects or results of the
Company, the Subsidiaries, or PTC on a consolidated basis. The Company
does not know of any facts or circumstances inconsistent with the
consummation of the transactions contemplated by the Merger Agreement in
accordance with its terms and as described in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence the most
recent Preliminary
9
Prospectus) or of any facts and circumstances which lead the Company to
believe that such consummation in accordance with the terms of the Merger
Agreement and as described in the Registration Statement or such Prospectus
will not occur. The Company is not aware of any material disagreements
between the Company and PTC regarding the terms of the Merger Agreement or
interpretation thereof.
(xxii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
except as otherwise stated therein:
(A) neither of the Offerors nor any of the Subsidiaries has
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree;
(B) there has not been any material adverse change in, or
any development which is reasonably likely to have a material adverse
effect on, the condition (financial or otherwise), earnings, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(C) neither of the Offerors nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions, other than in the ordinary
course of business, which are material to the condition (financial or
otherwise), earnings, business, prospects or results of operations of
the Offerors and the Subsidiaries on a consolidated basis;
(D) neither of the Offerors has declared or paid any
dividend, and neither of the Offerors nor any of the Subsidiaries has
become delinquent in the payment of principal or interest on any
outstanding borrowings; and
(E) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital leases
or, other than in the ordinary course of business, short-term
borrowings of the Offerors or the Subsidiaries.
(xxiii) No charge, investigation, action, suit or proceeding is
pending or threatened, against or affecting the Offerors or the
Subsidiaries or any of their respective properties before or by any court
or any regulatory, administrative or governmental official, commission,
board, agency or other authority or body, or any arbitrator.
(xxiv) There are no contracts or other documents required to
be filed as exhibits to the Registration Statement by the 1933 Act or the
1933 Act Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as exhibits or
incorporated by reference to the Registration Statement, or that are
required to be summarized in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) that are not so
summarized.
(xxv) Neither of the Offerors has taken, directly or
indirectly, any action designed to result in or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Offerors to facilitate the
sale or resale of the Designated Preferred Securities, and neither of the
Offerors is aware of any such action taken or to be taken by any affiliate
of the Offerors.
10
(xxvi) The Offerors and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service marks,
trade names and other rights necessary to conduct the businesses now
conducted by them in all material respects or as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and neither the Offerors nor the Subsidiaries have
received any notice of infringement or conflict with asserted rights of
others with respect to any patents, copyrights, trademarks, service marks,
trade names or other rights, and the Offerors do not know of any basis for
any such infringement or conflict.
(xxvii) No labor dispute involving the Company or the
Subsidiaries exists or is imminent or which is required to be disclosed in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). Neither of the Company nor any of the
Subsidiaries has received notice of any existing or threatened labor
dispute by the employees of any of its principal suppliers, customers or
contractors.
(xxviii) The Offerors and the Subsidiaries have timely and
properly prepared and filed all necessary federal, state, local and foreign
tax returns which are required to be filed and have paid all taxes shown as
due thereon and have paid all other taxes and assessments to the extent
that the same shall have become due, except such as are being contested in
good faith. The Offerors have no knowledge of any tax deficiency which has
been or might be assessed against the Offerors or the Subsidiaries.
(xxix) Each of the material contracts, agreements and
instruments described or referred to in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and each contract, agreement and instrument filed
as an exhibit to the Registration Statement is in full force and effect and
is the legal, valid and binding agreement of the Offerors or the
Subsidiaries, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by general principles of equity and by
bankruptcy or other laws relating to or affecting creditors' rights
generally. No other party to any such agreement is (with or without notice
or lapse of time or both) in breach or default in any material respect
thereunder.
(xxx) No relationship, direct or indirect, exists between or
among the Offerors or the Subsidiaries, on the one hand, and the directors,
officers, trustees, shareholders, customers or suppliers of the Offerors or
the Subsidiaries, on the other hand, which is required to be described in
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) which is not
adequately described therein.
(xxxi) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering and
sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Designated
Preferred Securities.
(xxxii) The Designated Preferred Securities have been approved
for quotation on the Nasdaq National Market subject to official notice of
issuance.
(xxxiii) There are no contractual encumbrances or restrictions
or material legal restrictions on the ability of the Subsidiaries (A) to
pay dividends or make any other distributions on its capital stock or to
pay any indebtedness owed to the Offerors, (B) to make any loans or
advances to, or investments in, the Offerors or (C) to transfer any of its
property or assets to the Offerors.
11
(xxxiv) Neither of the Offerors is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxxv) The Offerors have not distributed and will not
distribute prior to the Closing Date any prospectus in connection with the
Offering, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933 Act
and the 1933 Act Regulations and reviewed by the Underwriter.
3. OFFERING BY THE UNDERWRITER. After the Registration Statement becomes
effective or, if the Registration Statement is already effective, after this
Agreement becomes effective, the Underwriter proposes to offer the Firm
Preferred Securities for sale to the public upon the terms and conditions set
forth in the Prospectus. The Underwriter may from time to time thereafter
reduce the public offering price and change the other selling terms, provided
the proceeds to the Trust shall not be reduced as a result of such reduction or
change. Because the National Association of Securities Dealers, Inc. ("NASD")
is expected to view the Preferred Securities as interests in a direct
participation program, the offering of the Preferred Securities is being made in
compliance with the applicable provisions of Rule 2810 of the NASD's Conduct
Rules.
The Underwriter may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriter as the Underwriter may elect to dealers
chosen by it (the "Selected Dealers") at the public offering price set forth in
the Prospectus less the applicable Selected Dealers' concessions set forth
therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriter may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors jointly and
severally covenant with the Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then, the
Offerors will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted and will provide evidence satisfactory to the
Underwriter of such timely filing.
(b) The Offerors shall notify the Underwriter immediately, and
confirm such notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus
has been filed;
(ii) of the receipt of any comments or requests from the
Commission relating in any way to the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendments or supplements to
any of the aforementioned;
(iii) of any request of the Commission to amend or supplement
the Registration Statement, any Preliminary Prospectus or the Prospectus or
for additional information; and
12
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities for offering or
sale in any jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offerors shall use their best
efforts to prevent the issuance of any such stop order or of any other such
order and, if any such order is issued, to cause such order to be withdrawn
or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriter, from time to time
without charge, as soon as available, as many copies as the Underwriter may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) each Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply to the best of their ability with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Designated
Preferred Securities as contemplated herein and in the Trust Agreement and the
Prospectus. The Offerors shall not file any amendment to the registration
statement as originally filed or to the Registration Statement and shall not
file any amendment thereto or make any amendment or supplement to any
Preliminary Prospectus or to the Prospectus of which the Underwriter shall not
previously have been advised in writing and provided a copy within a reasonable
time prior to the proposed filings thereof or to which the Underwriter or its
counsel shall object. If it is necessary, in the Company's reasonable opinion
or in the reasonable opinion of the Company's counsel, to amend or supplement
the Registration Statement or the Prospectus in connection with the distribution
of the Designated Preferred Securities, the Offerors shall forthwith amend or
supplement the Registration Statement or the Prospectus, as the case may be, by
preparing and filing with the Commission (provided the Underwriter or its
counsel does not reasonably object), and furnishing to the Underwriter, such
number of copies as the Underwriter may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Registration Statement or
the Prospectus, as the case may be (in form and substance reasonably
satisfactory to the Underwriter and its counsel). If any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus to correct
an untrue statement of a material fact or to include a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, or if for any reason it is necessary at any time to
amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act
Regulations, the Offerors shall, subject to the second sentence of this
subsection (d), forthwith amend or supplement the Prospectus by preparing and
filing with the Commission, and furnishing to the Underwriter, such number of
copies as the Underwriter may reasonably request of an amendment or amendments
of, or a supplement or supplements to, the Prospectus (in form and substance
satisfactory to the Underwriter and its counsel) so that, as so amended or
supplemented, the Prospectus shall not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with the Underwriter and its counsel
in order to qualify the Designated Preferred Securities for offering and sale
under the securities or blue sky laws of such jurisdictions as the Underwriter
may reasonably request and shall continue such qualifications in effect so long
as may be advisable for distribution of the Designated Preferred Securities;
provided, however, that the Offerors shall not be required to qualify to do
business as a foreign corporation or file a general consent to service of
process in any jurisdiction in connection
13
with the foregoing. The Offerors shall file such statements and reports as
may be required by the laws of each jurisdiction in which the Designated
Preferred Securities have been qualified as above. The Offerors will notify
the Underwriter immediately of, and confirm in writing, the suspension of
qualification of the Designated Preferred Securities or threat thereof in any
jurisdiction.
(f) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to the Underwriter as soon as practicable, but in any event not later
than 16 months after the Effective Date, a consolidated earnings statement of
the Offerors conforming with the requirements of Section 11(a) of the 1933 Act
and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall
furnish to the Underwriter copies of all reports and communications (financial
or otherwise) furnished by the Offerors to the holders of the Designated
Preferred Securities as a class, copies of all reports and financial statements
filed with or furnished to the Commission (other than portions for which
confidential treatment has been obtained from the Commission) or with any
national securities exchange or the Nasdaq National Market and such other
documents, reports and information concerning the business and financial
conditions of the Offerors as the Underwriter may reasonably request, other than
such documents, reports and information for which the Offerors have the legal
obligation not to reveal to the Underwriter.
(i) For a period of 30 days from the Effective Date, the Offerors
shall not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities other than pursuant to
this Agreement, any other beneficial interests in the assets of the Trust or any
securities of the Trust or the Company that are substantially similar to the
Designated Preferred Securities or the Debentures, including any guarantee of
such beneficial interests or substantially similar securities, or securities
convertible into or exchangeable for or that represent the right to receive any
such beneficial interest or substantially similar securities without the
Underwriter's prior written consent.
(j) The Offerors shall use their best efforts to cause the Designated
Preferred Securities to become quoted on the Nasdaq National Market, or in lieu
thereof a national securities exchange, and to remain so quoted for at least
five years from the Effective Date or for such shorter period as may be
specified in a written consent of the Underwriter, provided this shall not
prevent the Company from redeeming the Designated Preferred Securities pursuant
to the terms of the Trust Agreement. If the Designated Preferred Securities are
exchanged for Debentures, the Company will use its best efforts to have the
Debentures promptly listed on the Nasdaq National Market or other organization
on which the Designated Preferred Securities are then listed, and to have the
Debentures promptly registered under the 1934 Act.
(k) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriter's
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriter shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, and there will not be any material
change in the financial position, capital stock, or any material increase in
long-term debt, obligations under capital leases or short-term borrowings of the
Offerors and the Subsidiaries on a consolidated basis.
14
(l) The Offerors shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Underwriter, purchase, redeem
or call for redemption, or prepay or give notice of prepayment (or announce any
redemption or call for redemption, or any repayment or notice of repayment) of
any of the Offeror's securities.
(m) The Offerors shall not take, directly or indirectly, any action
designed to result in or which has constituted or which might reasonably be
expected to (i) cause or result in stabilization or manipulation of the price of
any security of the Offerors to facilitate the sale or resale of the Designated
Preferred Securities or (ii) otherwise violate the Commission's Regulation M.
(n) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Offerors will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the
Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities (the "Offering") without the Underwriter's prior written consent.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is terminated or
the sale of the Designated Preferred Securities to the Underwriter is
consummated, the Company covenants and agrees that it will pay or cause to be
paid (directly or by reimbursement) all costs and expenses incident to the
performance of the obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers'
agreements), the certificates for the Designated Preferred Securities and the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(b) all fees, expenses and disbursements of the Offerors' counsel and
accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as the
Underwriter may request, including all filing fees and fees and disbursements of
counsel to the Underwriter in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary and Final Blue
Sky Memoranda and any legal investment surveys and any supplements thereto;
(d) all fees and expenses incurred in connection with filings made
with the NASD;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the Nasdaq National Market;
(f) the cost of furnishing to the Underwriter copies of the initial
registration statements, any Preliminary Prospectus, the Registration Statement
and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel to any transfer agent or registrar;
15
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriter;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture and the Guarantee; and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed for any reason whatsoever, whether or not such
termination is allowable hereunder, the Company will pay the Underwriter its
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of the Underwriter's obligations hereunder, including, without
limitation, travel expenses, reasonable fees, expenses and disbursements of
counsel or other out-of-pocket expenses incurred by the Underwriter in
connection with any discussion of the Offering or the contents of the
Registration Statement, any investigation of the Offerors and the Subsidiaries,
or any preparation for the marketing, purchase, sale or delivery of the
Designated Preferred Securities, in each case following presentation of
reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel to the Underwriter other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriter.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase and pay for the Firm Preferred Securities and, following
exercise of the option granted by the Offerors in Section 1 of this Agreement,
the Option Preferred Securities, are subject, in the Underwriter's sole
discretion, to the accuracy of and compliance with the representations and
warranties and agreements of the Offerors herein as of the date hereof and as of
the Closing Date (or in the case of the Option Preferred Securities, if any, as
of the Option Closing Date), to the accuracy of the written statements of the
Offerors made pursuant to the provisions hereof, to the performance by the
Offerors of their covenants and obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as the Underwriter
may agree to in writing. If required, the Prospectus and any amendment or
supplement thereto shall have been timely filed in accordance with Rule 424(b)
and Rule 430A under the 1933 Act and Section 4(a) hereof. No stop order
suspending the effectiveness of the Registration Statement or any amendment or
supplement thereto shall have been issued under the 1933 Act or any applicable
state securities laws and no proceedings for that purpose shall have been
instituted or shall be pending, or, to the knowledge of the Offerors or the
Underwriter, shall be contemplated by the Commission or any state authority.
Any request on the part of the Commission or any state authority for additional
information (to be included in the Registration Statement or Prospectus or
otherwise) shall have been disclosed to the Underwriter and complied with to the
satisfaction of the Underwriter and its counsel.
(b) The Underwriter shall not have advised the Company at or before
the Closing Date (and, if applicable, the Option Closing Date) that the
Registration Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of a fact which, in the Underwriter's opinion, is material or omits to state a
fact
16
which, in the Underwriter's opinion, is material and is required to be stated
therein or is necessary to make statements therein (in the case of the
Prospectus or any amendment or supplement thereto, in light of the
circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Trust Agreement, and the
Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be satisfactory
in all material respects to counsel to the Underwriter, and the Offerors and the
Subsidiaries shall have furnished to such counsel all documents and information
relating thereto that they may reasonably request to enable them to pass upon
such matters.
(d) [XXXXXXXXXX, DOLL & XXXXXXXX] [XXXXX X. XXXXXX, ESQ.], counsel to
the Offerors, shall have furnished to the Underwriter its signed opinion, dated
the Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to counsel to the Underwriter, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Indiana, and
is duly registered as a bank holding company under the BHC Act. Each of
the Subsidiaries is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Each of the
Company and the Subsidiaries has full corporate power and authority to own
or lease its properties and to conduct its business as such business is
described in the Prospectus and is currently conducted in all material
respects. All outstanding shares of capital stock of the Subsidiaries have
been duly authorized and validly issued and are fully paid and
nonassessable, except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 1831, and to the best of such counsel's knowledge,
there are no outstanding rights, options or warrants to purchase any such
shares or securities convertible into or exchangeable for any such shares.
(ii) The capital stock, Debentures and Guarantee of the Company
and the equity securities of the Trust conform to the description thereof
contained in the Prospectus in all material respects. The capital stock of
the Company authorized and issued as of , 1997, is as set
forth under the caption "Capitalization" in the Prospectus and has been
duly authorized, validly issued, and is fully paid and nonassessable. To
the best of such counsel's knowledge, there are no outstanding rights,
options or warrants to purchase, no other outstanding securities
convertible into or exchangeable for, and no commitments, plans or
arrangements to issue, any shares of capital stock of the Company or equity
securities of the Trust, except as described in the Prospectus.
(iii) The issuance, sale and delivery of the Designated
Preferred Securities and Debentures in accordance with the terms and
conditions of this Agreement and the Indenture have been duly authorized by
all necessary actions of the Offerors. All of the Designated Preferred
Securities have been duly and validly authorized and, when delivered in
accordance with this Agreement, will be duly and validly issued, fully paid
and nonassessable, and will conform to the description thereof in the
Registration Statement, the Prospectus and the Trust Agreement. The
Designated Preferred Securities have been approved for quotation on the
Nasdaq National Market subject to official notice of issuance. There are
no preemptive or other rights to subscribe for or to purchase, and no
restrictions upon the voting or transfer of, any shares of capital stock or
equity securities of the Offerors or the Subsidiaries pursuant to the
corporate charter, by-laws or other governing documents (including, without
limitation, the Trust Agreement) of the Offerors or the Subsidiaries, or,
to the best of such counsel's knowledge, any agreement or other instrument
to which either
17
Offeror or any of the Subsidiaries is a party or by which either Offeror or
any of the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and trust power to
enter into and perform their obligations under this Agreement, and this
Agreement has been duly and validly authorized, executed and delivered by
the Offerors and constitutes the legal, valid and binding obligations of
the Offerors enforceable in accordance with its terms, except as the
enforcement hereof or thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting creditors'
rights generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain remedies
may not be available in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act, has been duly
authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity.
(vi) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the benefits of
the Indenture and are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to
the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its terms, subject
to the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
(viii) To the best of such counsel's knowledge, neither of the
Offerors nor any of the Subsidiaries is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, by-laws or governing document (including, without
limitation, the Trust Agreement). The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated by
this Agreement and the Trust Agreement do not and will not conflict with,
result in the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or
the Subsidiaries or the Designated Preferred Securities pursuant to, or
constitute a material breach or violation of, or constitute a material
default under, with or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws or governing
document (including, without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or to the best of such counsel's knowledge,
the Guarantee, the Indenture or any material contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease, franchise, license or
any other agreement or instrument to which either Offeror or the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or any order, decree, judgment, franchise, license,
Permit, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, known to such
counsel having jurisdiction over the Offerors or the Subsidiaries or any of
their respective properties which, in each case, is material to the
Offerors and the Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of, or filing, registration or qualification
with, any person
18
(including, without limitation, any court, governmental body or authority)
is required under Indiana law in connection with the transactions
contemplated by this Agreement in connection with the purchase and
distribution of the Designated Preferred Securities by the Underwriter.
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right that, if exercised,
would require the Offerors to cause such securities to be included in the
Registration Statement or have waived such right. To the best of such
counsel's knowledge, neither the Offerors nor any of the Subsidiaries is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Offerors.
(x) To the best of such counsel's knowledge, (i) no action, suit
or proceeding at law or in equity is pending or threatened in writing to
which the Offerors or the Subsidiaries is or may be a party, and (ii) no
action, suit or proceeding is pending or threatened in writing against or
affecting the Offerors or the Subsidiaries or any of their properties,
before or by any court or governmental official, commission, board or other
administrative agency, authority or body, or any arbitrator.
(xi) No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act, the Trust Indenture Act, and except
such as may be required under state securities laws or Interpretations or
Rules of the NASD in connection with the purchase and distribution of the
Designated Preferred Securities by the Underwriter.
(xii) The Registration Statement and the Prospectus and any
amendments or supplements thereto and any documents incorporated therein by
reference (other than the financial statements or other financial data
included therein or omitted therefrom) comply as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
as of their respective dates of effectiveness.
(xiii) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required to
be disclosed in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so disclosed or filed.
(xiv) The statements under the captions "Description of the
Preferred Securities," "Description of the Subordinated Debentures,"
"Description of the Guarantee," "Relationship Among the Preferred
Securities, the Subordinated Debentures and the Guarantee," "Certain
Federal Income Tax Consequences," "ERISA Considerations," "General -
Supervision and Regulation" and "Legislation" in the Prospectus or
incorporated therein by reference, insofar as such statements constitute a
summary of legal and regulatory matters, documents, instruments or
proceedings referred to therein, are accurate descriptions of the matters
summarized therein in all material respects and fairly present the
information called for with respect to such legal matters, documents and
instruments, other than financial and statistical data , as to which said
counsel shall not be required to express any opinion or belief.
(xv) Such counsel has been advised by the staff of the Commission
that the Registration Statement has become effective under the 1933 Act;
any required filing of the Prospectus pursuant to Rule 424(b) has been made
within the time period required by
19
Rule 424(b); to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for a stop order are pending or threatened by the
Commission.
(xvi) Except as set forth in the Prospectus, to the best of
such counsel's knowledge, there are no contractual encumbrances or
restrictions, or material legal restrictions required to be described
therein on the ability of the Subsidiaries (A) to pay dividends or make any
other distributions on its capital stock or to pay indebtedness owed to the
Offerors, (B) to make any loans or advances to, or investments in, the
Offerors or (C) to transfer any of its property or assets to the Offerors.
(xvii) To the best of such counsel's knowledge, (A) the
business and operations of the Offerors and the Subsidiaries comply in all
material respects with all statutes, ordinances, laws, rules and
regulations applicable thereto and which are material to the Offerors and
the Subsidiaries on a consolidated basis, except those instances where non-
compliance would not materially impair the ability of the Offerors and the
Subsidiaries to conduct their businesses; and (B) the Offerors and the
Subsidiaries possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all Permits that
are required to conduct their businesses as described in the Prospectus and
that are material to the Offerors and the Subsidiaries on a consolidated
basis, except in those instances where the loss thereof or non-compliance
therewith would not have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or results
of operations of the Offerors and the Subsidiaries on a consolidated basis;
and to the best of such counsel's knowledge, all such Permits are valid and
in full force and effect, and, to the best of such counsel's knowledge, no
action, suit or proceeding is pending or threatened which may lead to the
revocation, termination, suspension or non-renewal of any such Permit,
except in those instances where the loss thereof or non-compliance
therewith would not materially impair the ability of the Offerors or the
Subsidiaries to conduct their businesses.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation, certificates as to the
identity of any and all material contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchises, licenses or other
agreements or instruments, and all material permits, easements, consents,
licenses, franchises and government regulatory authorizations, for purposes of
paragraphs (viii), (xiii) and (xvii) hereof and upon certificates of public
officials. In giving such opinion, such counsel may rely upon the opinion of
Xxxxxxxx, Xxxxxx and Xxxxxx described herein as to matters of Delaware Law.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with the Underwriter and its
counsel, at which conferences such counsel made inquiries of such officers,
representatives and accountants and discussed in detail the contents of the
Registration Statement and Prospectus and the documents incorporated therein by
reference (without taking further action to verify independently the statements
made in the Registration Statement and the Prospectus, and without assuming
responsibility for the accuracy or completeness of such statements, except to
the extent expressly provided above) and such counsel has no reason to believe
(A) that the Registration Statement or any amendment thereto (except for the
financial statements and related schedules and statistical data included therein
or omitted therefrom), at the time the Registration Statement or any such
amendment became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (B) that the Prospectus or any amendment or
supplement thereto or the documents incorporated therein by
20
reference (except for the financial statements and related schedules and
statistical data included therein or omitted therefrom), at the time the
Registration Statement became effective (or, if the term "Prospectus" refers
to the prospectus first filed pursuant to Rule 424(b) of the 1933 Act
Regulations, at the time the Prospectus was issued), at the time any such
amended or supplemented Prospectus was issued, at the Closing Date and, if
applicable, the Option Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (C) that there is any amendment to the Registration Statement
required to be filed that has not already been filed.
(e) Xxxxxxxx, Xxxxxx and Finger, special Delaware counsel to the
Offerors, shall have furnished to the Underwriter its signed opinion, dated as
of Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act
and, under the Trust Agreement and the Delaware Business Trust Act, has the
trust power and authority to conduct its business as described in the
Prospectus.
(ii) The Trust Agreement is a legal, valid and binding agreement
of the Trust and the Trustees, and is enforceable against the Company, as
depositor, and the Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business
Trust Act, the execution and delivery of the Underwriting Agreement by the
Trust, and the performance by the Trust of its obligations thereunder, have
been authorized by all requisite trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been duly
authorized by the Trust Agreement, and when issued and sold in accordance
with the Trust Agreement, the Designated Preferred Securities will be,
subject to the qualifications set forth in paragraph (v) below, fully paid
and nonassessable beneficial interest in the assets of the Trust and
entitled to the benefits of the Trust Agreement. The form of certificates
to evidence the Designated Preferred Securities has been approved by the
Trust and is in due and proper form and complies with all applicable
requirements of the Delaware Business Trust Act.
(v) Holders of Designated Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation on personal
liability extended to shareholders of private, for-profit corporations
organized under the General Corporation Law of the State of Delaware. Such
opinion may note that the holders of Designated Preferred Securities may be
obligated to make payments as set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is not
subject to preemptive rights.
(vii) The issuance and sale by the Trust of the Designated
Preferred Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate (a) the Trust
Agreement, or (b) any applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent
21
conveyance and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
(f) Xxxxx Xxxx LLP, counsel to the Underwriter, shall have
furnished to the Underwriter its signed opinion, dated the Closing Date or
the Option Closing Date, as the case may be, with respect to the sufficiency
of all corporate procedures and other legal matters relating to this
Agreement, the validity of the Designated Preferred Securities, the
Registration Statement, the Prospectus and such other related matters as the
Underwriter may reasonably request and there shall have been furnished to
such counsel such documents and other information as it may request to enable
it to pass on such matters. In giving such opinion, Xxxxx Xxxx LLP may rely
as to matters of fact upon statements and certifications of officers of the
Offerors and of other appropriate persons and may rely as to matters of law,
other than law of the United States and the State of Missouri, upon the
opinion of [XXXXXXXXXX, XXXX & MCDONALD] [XXXXX X. XXXXXX, ESQ.] and
Xxxxxxxx, Xxxxxx and Xxxxxx described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Underwriter shall have received
from Geo. S. Olive & Co. a letter, dated the date of this Agreement and the
Closing Date (and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Underwriter, confirming that it is an
independent public accounting firm with respect to the Company and the
Subsidiaries (for purposes of this Section 6(g) the "Company") within the
meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect
that:
(i) In its opinion, the consolidated financial statements of the
Company audited by it and included in the Registration Statement comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to its attention that caused it to believe that, if
applicable, the unaudited interim consolidated financial statements of the
Company included in the Registration Statement do not comply as to form in
all material respects with the applicable accounting requirements of the
1933 Act and 1933 Act Regulations or are not in conformity with U.S.
generally accepted accounting principles applied on a basis substantially
consistent, except as noted in the Registration Statement, with the basis
for the audited consolidated financial statements of the Company included
in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements of the Company included or incorporated by
reference in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came
to its attention that caused it to believe that:
22
(A) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock of the Company, any increase in the
consolidated debt of the Company, any decreases in consolidated total
assets or shareholders equity of the Company, or any changes,
decreases or increases in other items specified by the Underwriter, in
each case as compared with amounts shown in the latest unaudited
interim consolidated statement of financial condition of the Company
included in the Registration Statement except in each case for
changes, increases or decreases which the Registration Statement
specifically discloses, have occurred or may occur or which are
described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements of the Company included in
the Registration Statement to the specified date referred to in Clause
(iii)(A), there were any decreases in the consolidated interest
income, net interest income, or net income of the Company or in the
per share amount of net income of the Company, or any changes,
decreases or increases in any other items specified by the
Underwriter, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Underwriter, except in each case for increases or
decreases which the Registration Statement discloses have occurred or
may occur, or which are described in such letter;
(iv) In addition to the audit referred to in its report included
in the Registration Statement and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs (ii)
and (iii) above, it has carried out certain specified procedures, not
constituting an audit in accordance with U.S. generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Underwriter which are derived from the general
accounting records and consolidated financial statements of the Company
which appear in the Registration Statement, and have compared such amounts,
percentages and financial information with the accounting records and the
material derived from such records and consolidated financial statements of
the Company and have found them to be in agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in Clauses
(iii)(A) or (iii)(B), above, or any exceptions from such agreement specified
in Clause (iv) above, it shall be a further condition to the Underwriter's
obligations that the Underwriter shall have determined, after discussions
with officers of the Company, responsible for financial and accounting
matters, that such changes, decreases, increases or exceptions as are set
forth in such letters do not (x) reflect a material adverse change in the
items specified in Clause (iii)(A) above as compared with the amounts shown
in the latest unaudited consolidated statement of financial condition of the
Company included in the Registration Statement, (y) reflect a material
adverse change in the items specified in Clause (iii)(B) above as compared
with the corresponding periods of the prior year or other period specified by
the Underwriter, or (z) reflect a material change in items specified in
Clause (iv) above from the amounts shown in the Preliminary Prospectus
distributed by the Underwriter in connection with the offering contemplated
hereby or from the amounts shown in the Prospectus.
(h) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Underwriter shall have received
from Xxxxx, Xxxxxx and Company LLP a letter, dated the date of this Agreement
and the Closing Date (and, if applicable, the Option Closing Date),
respectively, in form and substance satisfactory to the Underwriter,
confirming that it is an independent public accounting firm with respect to
PTC within the meaning of the 1933 Act and the 1933 Act Regulations, and
stating in effect that:
23
(i) In its opinion, the consolidated financial statements of PTC
audited by it and included in the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of PTC responsible
for financial and accounting matters, and such other inquiries and
procedures as may be specified in such letter, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to its attention that caused it to believe that, if
applicable, the unaudited interim consolidated financial statements of PTC
included in the Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and 1933 Act Regulations or are not in conformity with U.S. generally
accepted accounting principles applied on a basis substantially consistent,
except as noted in the Registration Statement, with the basis for the
audited consolidated financial statements of PTC included in the
Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of PTC, inspection of
the minute books of PTC since the date of the latest audited financial
statements of PTC included or incorporated by reference in the Registration
Statement, inquiries of officials of PTC responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to its attention that caused it to
believe that:
(A) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock of PTC, any increase in the consolidated
debt of PTC, any decreases in consolidated total assets or
shareholders equity of PTC, or any changes, decreases or increases in
other items specified by the Underwriter, in each case as compared
with amounts shown in the latest unaudited interim consolidated
statement of financial condition of PTC included in the Registration
Statement except in each case for changes, increases or decreases
which the Registration Statement specifically discloses, have occurred
or may occur or which are described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements of PTC included in the
Registration Statement to the specified date referred to in Clause
(iii)(A), there were any decreases in the consolidated interest
income, net interest income, or net income of PTC or in the per share
amount of net income of PTC, or any changes, decreases or increases in
any other items specified by the Underwriter, in each case as compared
with the comparable period of the preceding year and with any other
period of corresponding length specified by the Underwriter, except in
each case for increases or decreases which the Registration Statement
discloses have occurred or may occur, or which are described in such
letter;
(iv) In addition to the audit referred to in its report included
in the Registration Statement and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs (ii)
and (iii) above, it has carried out certain specified procedures, not
constituting an audit in accordance with U.S. generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Underwriter which are derived from the general
accounting records and
24
consolidated financial statements of PTC which appear in the Registration
Statement, and have compared such amounts, percentages and financial
information with the accounting records and the material derived from such
records and consolidated financial statements of PTC and have found them to
be in agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in Clauses
(iii)(A) or (iii)(B), above, or any exceptions from such agreement specified
in Clause (iv) above, it shall be a further condition to the Underwriter's
obligations that the Underwriter shall have determined, after discussions
with officers of PTC, responsible for financial and accounting matters, that
such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified
in Clause (iii)(A) above as compared with the amounts shown in the latest
unaudited consolidated statement of financial condition of PTC included in
the Registration Statement, (y) reflect a material adverse change in the
items specified in Clause (iii)(B) above as compared with the corresponding
periods of the prior year or other period specified by the Underwriter, or
(z) reflect a material change in items specified in Clause (iv) above from
the amounts shown in the Preliminary Prospectus distributed by the
Underwriter in connection with the offering contemplated hereby or from the
amounts shown in the Prospectus.
(i) At the Closing Date and, if applicable, the Option Closing
Date, the Underwriter shall have received certificates of the chief executive
officer and the chief financial and accounting officer of the Company, which
certificates shall be deemed to be made on behalf of the Company dated as of
the Closing Date and, if applicable, the Option Closing Date, evidencing
satisfaction of the conditions of Section 6(a) and stating that (i) the
representations and warranties of the Company set forth in Section 2(a)
hereof are accurate as of the Closing Date and, if applicable, the Option
Closing Date, and that the Offerors have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at or
prior to such Closing Date; (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there
has not been any material adverse change in the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Offerors and the Subsidiaries on a consolidated basis; (iii) since
such dates there has not been any material transaction entered into by the
Offerors or the Subsidiaries other than transactions in the ordinary course
of business; and (iv) each such officer has carefully examined the
Registration Statement and the Prospectus as amended or supplemented and
nothing has come to his or her attention that would lead him or her to
believe that either the Registration Statement or the Prospectus, or any
amendment or supplement thereto as of their respective effective or issue
dates, contained, and the Prospectus as amended or supplemented at such
Closing Date (and, if applicable, the Option Closing Date), contains any
untrue statement of a material fact, or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and (v) covering such other matters as the Underwriter may
reasonably request. The officers' certificate of the Company shall further
state that no stop order affecting the Registration Statement is in effect or
threatened.
(j) At the Closing Date and, if applicable, the Option Closing
Date, the Underwriter shall have received a certificate of an authorized
representative of the Trust to the effect that to the best of his or her
knowledge based upon a reasonable investigation, the representations and
warranties of the Trust in this Agreement are true and correct as though made
on and as of the Closing Date (and, if applicable, the Option Closing Date);
the Trust has complied with all the agreements and satisfied all the
conditions required by this Agreement to be performed or satisfied by the
Trust on or prior to the Closing Date and since the most recent date as of
which information is given in the Prospectus, except as contemplated by the
Prospectus, the Trust has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions
not in the ordinary course of business and there has not been any material
adverse change in the condition (financial or otherwise) of the Trust.
25
(k) On the Closing Date, the Underwriter shall have received duly
executed counterparts of the Trust Agreement, the Guarantee, the Indenture
and the Expense Agreement.
(l) The NASD, upon review of the terms of the public offering of
the Designated Preferred Securities, shall not have objected to the
Underwriter's participation in such offering.
(m) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Offerors shall have furnished to the Underwriter and its
counsel all such other documents, certificates and opinions as they have
reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Underwriter and its counsel. The
Offerors shall furnish the Underwriter with conformed copies of such
opinions, certificates, letters and other documents as the Underwriter shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not
have been fulfilled when and as required by this Agreement, this Agreement
and all of the Underwriter's obligations hereunder may be terminated by the
Underwriter on notice to the Company at, or at any time before, the Closing
Date or the Option Closing Date, as applicable. Any such termination shall
be without liability of the Underwriter to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors agree to jointly and severally indemnify and hold
harmless the Underwriter, each of its directors, officers and agents, and
each person, if any, who controls the Underwriter within the meaning of the
1933 Act, against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and reasonable
attorneys' fees and expenses), joint or several, arising out of or based (i)
upon any untrue statement or alleged untrue statement of a material fact made
by the Company or the Trust contained in Section 2(a) of this Agreement (or
any certificate delivered by the Company or the Trust pursuant to Sections
6(h), 6(i) or 6(l) hereof) or the registration statement as originally filed
or the Registration Statement, any Preliminary Prospectus or the Prospectus,
or in any amendment or supplement thereto, (ii) upon any blue sky application
or other document executed by the Company or the Trust specifically for that
purpose or based upon written information furnished by the Company or the
Trust filed in any state or other jurisdiction in order to qualify any of the
Designated Preferred Securities under the securities laws thereof (any such
application, document or information being hereinafter referred to as a "Blue
Sky Application"), (iii) any omission or alleged omission to state a material
fact in the registration statement as originally filed or the Registration
Statement, the Preliminary Prospectus or the Prospectus, or in any amendment
or supplement thereto, or in any Blue Sky Application required to be stated
therein or necessary to make the statements therein not misleading, and
against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and attorneys' fees), joint or
several, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus or the
Prospectus, or in any amendment or supplement thereto, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
(iv) the enforcement of this indemnification provision or the contribution
provisions of Section 7(d); and shall reimburse each such indemnified party
for any reasonable legal or other expenses as incurred, but in no event less
frequently than 30 days after each invoice is submitted, incurred by them in
connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage,
liability or action, notwithstanding the possibility that payments for such
expenses might later be held to be improper, in which case such payments
shall be promptly refunded; provided, however, that the Offerors shall
26
not be liable in any case to the extent, but only to the extent, that any
such losses, claims, damages, liabilities and expenses arise out of or are
based upon any untrue statement or omission or allegation thereof that has
been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to the Underwriter furnished in writing to an
Offeror through the Underwriter by or on behalf of it expressly for use in
connection with the Registration Statement, the Preliminary Prospectus or the
Prospectus, or in any amendment or supplement thereto; provided, that the
indemnification contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of the Underwriter (or of any
person controlling the Underwriter) to the extent any such losses, claims,
damages, liabilities or expenses directly results from the fact that the
Underwriter sold Designated Preferred Securities to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale,
a copy of the Prospectus (as amended or supplemented if any amendments or
supplements thereto shall have been furnished to the Underwriter in
sufficient time to distribute same with or prior to the written confirmation
of the sale involved), if required by law, and if such loss, claim, damage,
liability or expense would not have arisen but for the failure to give or
send such person such document. The foregoing indemnity agreement is in
addition to any liability the Company or the Trust may otherwise have to any
such indemnified party.
(b) The Underwriter agrees to indemnify and hold harmless each
Offeror, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls an Offeror
within the meaning of the 1933 Act, to the same extent as required by the
foregoing indemnity from the Company to the Underwriter, but only with
respect to the information related to the Underwriter furnished in writing to
an Offeror through the Underwriter by or on its behalf expressly for use in a
Blue Sky Application. The foregoing indemnity agreement is in addition to
any liability which the Underwriter may otherwise have to any such
indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect
of which indemnity may be sought from the indemnifying party, such
indemnified party or controlling person shall promptly notify the
indemnifying party in writing, and the indemnifying party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory
to the indemnified party and the payment of all expenses; PROVIDED, HOWEVER,
that the failure so to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party otherwise than
under such paragraph, and further, shall only relieve it from liability under
such paragraph to the extent prejudiced thereby. Any indemnified party or
any such controlling person shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such indemnified
party or such controlling person unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) the
indemnifying party has failed to assume the defense or to employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties
to any such action (including any impleaded parties) include both such
indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it
that are different from or in addition to those available to the indemnifying
party (in which case, if such indemnified party or controlling person
notifies the indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party
shall not have the right to assume the defense of such action on behalf of
such indemnified party or such controlling person) it being understood,
however, that the indemnifying party shall not, in connection with any one
such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time and for all such indemnified
parties and controlling persons, which firm shall be designated in writing by
the indemnified party. Each indemnified party and each controlling person,
as a condition of such indemnity, shall use reasonable efforts to cooperate
with the indemnifying party in
27
the defense of any such action or claim. The indemnifying party shall not be
liable for any settlement of any such action effected without its written
consent, but if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent
of each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within
the meaning of the 1933 Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes a release
of each such indemnified party reasonably satisfactory to each such
indemnified party and each such controlling person from all liability arising
out of such claim, action, suit or proceeding or unless the indemnifying
party shall confirm in a written agreement with each indemnified party, that
notwithstanding any federal, state or common law, such settlement, compromise
or consent shall not alter the right of any indemnified party or controlling
person to indemnification or contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and
the Underwriter on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Offerors on the one hand and the Underwriter on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The benefits received by the Underwriter
on the one hand and the Offerors on the other shall be deemed to be allocated
pro rata on the basis of the total underwriting discounts, commissions and
compensation received by the Underwriter relative to the total net proceeds
from the offering of the Designated Preferred Securities (before deducting
expenses) received by the Offerors, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault of the Offerors on the
one hand and of the Underwriter on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Offerors or by the Underwriter and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. Each Offeror and the
Underwriter agree that it would not be just and equitable if contribution
pursuant to this paragraph (d) were determined by pro rata allocation or by
any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities and
expenses referred to in the first sentence of this paragraph (d) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph (d), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Designated Preferred Securities underwritten by the Underwriter and
distributed to the public exceeds the amount of any damages that the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
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For purposes of this paragraph (d), each person who controls the
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as the Underwriter, and each person who controls an Offeror
within the meaning of the 1933 Act, each officer and trustee of an Offeror
who shall have signed the Registration Statement and each director of an
Offeror shall have the same rights to contribution as the Offerors subject in
each case to the preceding paragraph. The obligations of the Offerors under
this paragraph (d) shall be in addition to any liability which the Offerors
may otherwise have and the obligations of the Underwriter under this
paragraph (d) shall be in addition to any liability that the Underwriter may
otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Offerors set forth in
this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the Underwriter
or any person controlling the Underwriter or by or on behalf of the Offerors,
or such directors, trustees or officers (or any person controlling an
Offeror), (ii) acceptance of any Designated Preferred Securities and payment
therefor hereunder and (iii) any termination of this Agreement. A successor
of the Underwriter or of an Offeror, such directors, trustees or officers (or
of any person controlling the Underwriter or an Offeror) shall be entitled to
the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust
under this Section 7.
8. TERMINATION. The Underwriter shall have the right to terminate this
Agreement at any time at or prior to the Closing Date or, with respect to the
Underwriter's obligation to purchase the Option Preferred Securities, at any
time at or prior to the Option Closing Date, without liability on the part of
the Underwriter to the Offerors, if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or
any of the conditions referred to in Section 6 shall not have been fulfilled,
when and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have sustained
any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree which in the
judgment of the Underwriter materially impairs the investment quality of the
Designated Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely
to have a material adverse effect on, the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Offerors and the Subsidiaries on a consolidated basis, whether or not arising
in the ordinary course of business;
(d) There has occurred any outbreak of hostilities or other
calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in the
Underwriter's reasonable judgment, impracticable to market the Designated
Preferred Securities or enforce contracts for the sale of the Designated
Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, by any of said
exchanges or market system or by the Commission or any other governmental
authority;
29
(f) A banking moratorium shall have been declared by either federal
or Indiana authorities; or
(g) Any action shall have been taken by any government in respect
of its monetary affairs which, in the Underwriter's reasonable judgment, has
a material adverse effect on the United States securities markets.
The Offerors shall have the right to terminate this Agreement at any
time at or prior to the Closing Date or, with respect to the sale of the
Option Preferred Securities, at any time at or prior to the Option Closing
Date, if a Tax Event or a Capital Treatment Event, as such terms are defined
in the Registration Statement, shall have occurred.
If this Agreement shall be terminated pursuant to this Section 8,
the Offerors shall not then be under any liability to the Underwriter except
as provided in Sections 5 and 7 hereof.
9. EFFECTIVE DATE OF AGREEMENT. If the Registration Statement is not
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares
the Registration Statement effective. The Company shall immediately notify
the Underwriter when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of execution
of this Agreement, this Agreement shall become effective at the earlier of
11:00 a.m. St. Louis time, on the first full business day following the day
on which this Agreement is executed, or at such earlier time as the
Underwriter shall release the Designated Preferred Securities for initial
public offering. The Underwriter shall notify the Offerors immediately after
it has taken any action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it
may be terminated by the Offerors, by notifying the Underwriter, or by the
Underwriter, by notifying either Offeror, except that the provisions of
Sections 5 and 7 shall at all times be effective.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. The
representations, warranties, indemnities, agreements and other statements of
the Offerors and their officers and trustees set forth in or made pursuant to
this Agreement and the agreements of the Underwriter contained in Section 7
hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Offerors or controlling persons of
either Offeror, or by or on behalf of the Underwriter or controlling persons
of the Underwriter or any termination or cancellation of this Agreement and
shall survive delivery of and payment for the Designated Preferred Securities.
11. NOTICES. Except as otherwise provided in this Agreement, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by registered or
certified mail, return receipt requested, or transmitted by any standard form
of telecommunication and confirmed. Notices to either Offeror shall be sent
to 000 Xxxxx Xxxxxxxx, X.X. Box 87, Greensburg, Indiana 47240, Attention:
Chairman and President (with a copy to Xxxxx X. Xxxxxx, Esq., c/x Xxxxx,
Xxxxxx and Schardein, 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; and
to Xxxxxxxxxx, Doll & McDonald, 3300 National City Tower, Suite 0000, 000
Xxxxx 0xx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxxx, Esq.);
and notices to the Underwriter shall be sent to Xxxxxx, Xxxxxxxx & Company,
Incorporated, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Xxxx X. Xxxxxx (with a copy to Xxxxx Xxxx LLP, One Metropolitan
Square, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Xxxxx X. Xxxxx, Xx., Esq.).
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12. PARTIES. The Agreement herein set forth is made solely for the
benefit of the Underwriter and the Offerors and, to the extent expressed,
directors, trustees and officers of the Offerors, any person controlling the
Offerors or the Underwriter, and their respective successors and assigns. No
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any
purchaser, in its status as such purchaser, from the Underwriter of the
Designated Preferred Securities.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Missouri, without giving effect to the choice of law or conflicts of
law principles thereof.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party hereto
all such counterparts taken together shall constitute one and the same
Agreement.
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If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
INDIANA UNITED BANCORP
By:
---------------------------------
Xxxxxx X. Xxxxxx
Chairman and President
IUB CAPITAL TRUST
By:
---------------------------------
---------------------------------
Administrative Trustee
CONFIRMED AND ACCEPTED,
as of , 1997.
------------- ---
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:
------------------------------------
Xxxx X. Xxxxxx
Senior Vice President
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