EXHIBIT 1
1,060,997 Shares
SOUTHWEST BANCORP, INC.
Common Stock
$1.00 Par Value
UNDERWRITING AGREEMENT
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______________, 1999
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
As Representative of the Several Underwriters
named in Schedule I hereto
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Southwest Bancorp, Inc., an Oklahoma corporation (the "Company"),
proposes to issue and sell to the underwriters listed on Schedule I hereto (the
"Underwriters"), pursuant to the terms of this Agreement, 250,000 shares of the
Company's Common Stock, par value $1.00 per share (the "Common Stock"), and the
Estate of Xxxx X. Xxxx (through its co-executors, Xx. Xxxxx X. Xxxx and Xxxxx X.
Xxxx) (the "Estate") and Xxxxx X. Xxxx ("Wise", and together with the Estate,
the "Selling Shareholders") propose to sell to the Underwriters the respective
number of shares of Common Stock set forth opposite their names on Schedule II,
which represent a total of 810,997 shares of Common Stock. The 1,060,997 shares
of Common Stock to be sold by the Company and the Selling Shareholders are
herein called the "Firm Shares." Solely for the purpose of covering over-
allotments in the sale of the Firm Shares, the Company further proposes to issue
and sell to the Underwriters, at their option, up to an additional 159,149
shares of Common Stock (the "Option Shares") upon exercise of the over-allotment
option granted in Section 1 hereof. The Firm Shares and any Option Shares are
herein collectively referred to as the "Shares." You are acting as
representative of the Underwriters and in such capacity are sometimes herein
referred to as the "Representative."
The Company hereby confirms as follows its agreement with each of the
Underwriters in connection with the proposed purchase of the Shares.
1. SALE, PURCHASE AND DELIVERY OF SHARES. On the basis of the
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representations, warranties and agreements herein contained, and subject to the
terms and conditions herein set forth, the Company and the Selling Shareholders
hereby agree to sell to each of the Underwriters and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company and the Selling
Shareholders, at a purchase price per share of $[______] (the "Purchase Price")
the respective number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto. The Representative may by notice to the
Company amend Schedule I to add, eliminate or substitute names set forth therein
(other than to eliminate the names of the Representative) and to amend the
number of Firm Shares to be purchased by any firm or corporation listed thereon,
provided that the total number of Firm Shares listed on Schedule I shall equal
1,060,997.
The number of Firm Shares to be purchased by each Underwriter from the
Company and from the Selling Shareholders, respectively, shall bear the same
ratio to the total number of Firm Shares to be sold by the Company and by each
Selling Shareholder, respectively, as the total number of Firm Shares to be
purchased by such Underwriter bears to the total number of Firm Shares to be
purchased by the Underwriters; provided, however, that the Representative shall
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adjust the number of Firm Shares to be purchased by each Underwriter from the
Selling Shareholders as necessary to eliminate fractional shares.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 159,149 Option Shares, and upon
the exercise of such option in accordance with this Section 1, the Company
hereby agrees to sell to the Underwriters, severally and not jointly, all or any
portion of the Option Shares at the same Purchase Price per share paid for the
Firm Shares. If any Option Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Company that proportion
(subject to adjustment as you may determine to avoid fractional shares) of the
number of Option Shares to be purchased that the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 9 hereof) bears to 1,060,997. 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 Shares. The Option
may be exercised in whole or in part at any time (but not more than once) by you
giving notice (confirmed in writing) to the Company setting forth the number of
Option Shares as to which the Underwriters are exercising the Option and the
time, date and place for payment and delivery of certificates for such Option
Shares. Such time and date of payment and delivery for the Option Shares (the
"Option Closing Date") shall be determined by you, but shall not be earlier than
two nor later than five full business days after the exercise of such option,
nor in any event prior to the Closing Date (as hereinafter defined). The Option
Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and delivery of certificates for the
Firm Shares shall be made at the offices of Xxxxxx, Xxxxxxxx & Company,
Incorporated, 000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or such other place
as shall be agreed to by you and the Company, at 10:00 a.m., St. Louis time, on
[_____________], 1999, or at such other time not more than five full business
days thereafter as the Company and you shall determine (the "Closing Date"). If
the Underwriters exercise the option to purchase any or all of the Option
Shares, payment of the Purchase Price and delivery of certificates for such
Option Shares shall be made on the Option Closing Date at the offices of Xxxxxx,
Xxxxxxxx & Company, Incorporated, or at such other place as the Company and you
shall determine. Such payments shall be made to the Company and the Selling
Shareholders, as appropriate, or their respective order 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 Company and the
Selling Shareholders to you for the respective accounts of the Underwriters of
certificates for the Shares to be purchased by them.
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[(A)/(C)] and (d) promulgated
under the 1934 Act (as defined herein), for a settlement date other than
[THREE/FOUR] business days after the date of the contract.
Certificates for Shares to be purchased by the Underwriters shall be
delivered in fully registered form in such authorized denominations and
registered in such names as you 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 Shares to be purchased by
the Underwriters shall be made available to you for inspection, checking and
packaging at such office as you 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
Shares at the time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder.
2. REPRESENTATIONS AND WARRANTIES.
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(a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities Exchange
Act of 1934, as amended (the "1934 Act") and the rules and regulations
thereunder (the "1934 Act Regulations") at the time they were filed with
the Commission, complied as to form with the requirements of the 1934 Act
and the 1934 Act Regulations and did
not contain an untrue statement of fact or omit to state any fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading.
(ii) The Company has carefully prepared and filed with the
Commission a registration statement on Form S-2 (File No.
[_______________]) for the registration of the Shares under the Securities
Act of 1933, as amended (the "1933 Act"), including the related prospectus
subject to completion, and one or more amendments to such registration
statement may have been so filed, in each case in conformity with the
requirements of the 1933 Act and the rules and regulations promulgated
thereunder (the "1933 Act Regulations"). The Company meets the
requirements for use of Form S-2. 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 Company to the Representative. After
the execution of this Agreement, the Company 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 Representative prior to (or as are
agreed to by the Representative 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 Representative prior to (or is agreed to by the Representative
subsequent to) the execution of this Agreement. The Company will not file
any amendment to the registration statement or any amended Preliminary
Prospectus or any amendment thereto, of which you have not been previously
furnished a copy or to which you or counsel for the Underwriters shall
reasonably object. As used in this Agreement, the term "Registration
Statement" means such registration statement, as amended at the time when
it was or is declared effective under the 1933 Act, including (1) all
financial schedules and exhibits thereto (2) all documents (or portions
thereof) incorporated by reference therein filed under the 1934 Act, and
(3) any information omitted therefrom pursuant to Rule 430A and included in
the Prospectus (as hereinafter defined); the term "Preliminary Prospectus"
means each prospectus subject to completion filed with such registration
statement or any amendment thereto, including all documents (or portions
thereof) incorporated by reference therein under the 1934 Act (including
the prospectus subject to completion, if any, included in the Registration
Statement and each prospectus filed pursuant to Rule 424(a) under the 0000
Xxx); and the term "Prospectus" means the prospectus first filed with the
Commission pursuant to Rule 424(b)(1) or (4) or, if no prospectus is
required to be filed pursuant to Rule 424(b)(1) or (4), the prospectus
included in the Registration Statement, in each case including the
financial schedules and all documents (or portions thereof) incorporated by
reference therein under the 1934 Act. The date on which the Registration
Statement becomes effective is hereinafter referred to as the "Effective
Date."
(iii) The documents incorporated by reference in the Preliminary
Prospectus or Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the Commission, as
the case may be, complied with the requirements of the 1934 Act and the
1934 Act Regulations and any future documents incorporated by reference so
filed, when they are filed, will comply with the requirements of the 1934
Act and the 1934 Act Regulations; no such incorporated document contained
or will contain any untrue statement of fact or omit to state any fact
required to be stated therein or necessary to make the statements therein
not misleading, and when read together and with the other information in
the Preliminary Prospectus or Prospectus, as the case may be, at the time
the Registration Statement became or becomes effective and at the Closing
Date and any Option Closing Date, did not or will not, as the case may be,
contain an untrue statement of fact or omit to state any fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(iv) No order preventing or suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the qualification or
registration of the Shares for offering or sale in any jurisdiction has
been issued by the Commission, any state or other jurisdiction or other
regulatory body nor has the Commission, any state or other
jurisdiction or other regulatory body, to the knowledge of the Company,
threatened to issue such an order or instituted proceedings for such
purpose. Each Preliminary Prospectus, at the time of filing thereof, (A)
complied with the requirements of the 1933 Act and the 1933 Act Regulations
and (B) did not contain an untrue statement of fact or omit to state any
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty does
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not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by you
expressly for inclusion in the Prospectus beneath the heading
"Underwriting" (such information referred to herein as the "Underwriters'
Information") or by any Selling Shareholder expressly for inclusion in the
Prospectus (such information referred to herein as the "Selling
Shareholders' Information").
(v) At the Effective Date and at all times subsequent thereto,
up to and including the Closing Date and, if applicable, the Option Closing
Date, the Registration Statement and any post-effective amendment thereto
(A) complied and will comply with the requirements of the 1933 Act and the
1933 Act Regulations and (B) did not and will not contain an untrue
statement of fact or omit to state any fact required to be stated therein
or necessary to make the statements therein not misleading. At the
Effective Date and at all times when the Prospectus is required to be
delivered in connection with offers and sales of Shares, including, without
limitation, the Closing Date and, if applicable, the Option Closing Date,
the Prospectus, as amended or supplemented, (A) complied and will comply
with the requirements of the 1933 Act and the 1933 Act Regulations and (B)
did not contain and will not contain an untrue statement of fact or omit to
state any fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
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warranty does not apply to Underwriters' Information or Selling
Shareholder's Information.
(vi) The Company is duly organized, validly existing and in
good standing under the laws of the State of Oklahoma, with full corporate
and other power and authority to own, lease and operate its properties and
conduct its business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) and as currently being conducted
and is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act").
(vii) The Company has two direct subsidiaries, Stillwater
National Bank & Trust Company (the "Bank") and SBI Capital Trust (the
"Trust"), and three indirect subsidiaries, Stillwater National Building
Corporation ("SNBC"), CRK Properties, Inc. ("CRK") and Stillwater
Properties, Inc. ("Stillwater Properties") that are wholly-owned by the
Bank. The Bank, the Trust, SNBC, CRK and Stillwater Properties are
hereinafter collectively referred to as 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 national banking association,
business trust or Oklahoma corporation duly incorporated or organized (as
the case may be), validly existing and in good standing under the laws of
its respective jurisdiction of incorporation or organization (as the case
may be). Each such Subsidiary has full corporate and other power and
authority to own, lease and operate its properties and to conduct its
business as described in and contemplated by the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted. The Bank is a
member of the Federal Reserve System, and no proceedings for the
termination or revocation of such membership are pending or, to the
knowledge of the Company, threatened. The deposit accounts of the Bank are
insured by the Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation (the "FDIC") up to the maximum amount provided by
law, except to the extent the Prospectus discloses such deposit accounts
are insured by the Savings Association Insurance Fund administered by the
FDIC and to such extent the deposit accounts are so insured up to the
maximum amount provided by law; and no proceedings for the modification,
termination or revocation of any such insurance are pending or, to the
knowledge of the Company, threatened.
(viii) The Company and each of the Subsidiaries is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property or
conducts its business so as to require such qualification and in which the
failure to so qualify would, individually or in the aggregate, have an
adverse effect on the condition (financial or otherwise), earnings,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. All of the issued and outstanding
shares of capital stock of the Subsidiaries (A) have been duly authorized
and are validly issued, (B) are fully paid and nonassessable except to the
extent such shares may be deemed assessable under 12 U.S.C. Section 55 or
12 U.S.C. Section 1831o. Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
all of the issued and outstanding shares of capital stock of the Bank are
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon voting or transfer,
preemptive rights, claim or equity. Except as disclosed in the Prospectus,
there are no outstanding rights, warrants or options to acquire or
instruments convertible into or exchangeable for any capital stock or
equity securities of the Subsidiaries, except for preemptive rights under
the National Bank Act.
(ix) The capital stock of the Company conforms 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 of the Company 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 the Company; no person has any preemptive or similar
right to purchase any shares of capital stock or equity securities of the
Company. 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
Company other than options issued under the Company's 1994 Stock Option
Plan, and there are no outstanding securities convertible into or
exchangeable for any such securities, and no restrictions upon the voting
or transfer of any capital stock of the Company pursuant to the Company's
corporate charter or by-laws or any agreement or other instrument to which
the Company is a party or by which it is bound.
(x) The Company has all requisite power and authority to
issue, sell and deliver the Shares in accordance with and upon the terms
and conditions set forth in this Agreement and in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus). All corporate action required to
be taken by the Company for the authorization, issuance, sale and delivery
of the Shares has been validly and sufficiently taken. The Shares, when
delivered and paid for in accordance with this Agreement, will be duly and
validly issued and outstanding, fully paid and nonassessable, 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). None of the Shares, 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.
(xi) The Company and the Subsidiaries have complied with all
federal, state and local statutes, regulations, ordinances and rules
applicable to the ownership and operation of their properties or the
conduct of their businesses as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and as currently being
conducted.
(xii) The Company and the Subsidiaries have all material
permits, easements, consents, licenses, grants, certificates, orders,
approvals, 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 Company 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 Company 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 Company nor any of the Subsidiaries is in
breach or violation of its corporate charter, by-laws or other governing
documents. Neither of the Company nor any of the Subsidiaries is, and to
the knowledge of the Company no other party is, in violation, breach or
default (with or without notice or lapse of time or both) in the
performance or observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license, Permit or any other agreement or instrument to which it
is a party or by which it or any of its properties may be bound, which such
breach, violation or default could have material adverse consequences to
the Company on a consolidated basis, and to the knowledge of the Company,
no other party has asserted that the Company or any of the Subsidiaries is
in such violation, breach or default (provided that the foregoing shall not
apply to defaults by borrowers from the Bank), or (B) except as disclosed
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), any order, decree, judgment, rule or
regulation, including, without limitation, Section 13 of the 1934 Act, of
any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Company
or the Subsidiaries or any of their respective properties the breach,
violation or default of which could have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business, prospects,
or results of operations of the Company and the Subsidiaries on a
consolidated basis.
(xiv) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein, in the
Registration Statement and in 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 Company or the Subsidiaries or the Shares 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, by-laws or any other governing document of the Company or
the Subsidiaries, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which the Company 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 Company or the Subsidiaries or any
of their respective properties which conflict, creation, imposition,
breach, violation or default would have either singly or in the aggregate
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis. 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 Registration Statement and the
Prospectus (or such Preliminary Prospectus), except such as have been
obtained under the 1933 Act and from the Nasdaq National Market relating to
the listing of the Shares, 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 Shares by the Underwriters.
(xv) The Company has 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 Company and constitutes
the legal, valid and binding agreement of the Company, 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.
(xvi) The Company and the Subsidiaries have good and marketable
title in fee simple to all real property and good title to all personal
property owned by them and material to their business on a consolidated
basis, in each case free and clear of all security interests, liens,
mortgages, pledges, encumbrances, restrictions, claims, equities and other
defects except such as are referred to in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) or
such as do not materially affect the value of such property in the
aggregate and do not materially interfere with the use made or proposed to
be made of such property; and all of the leases under which the Company or
any of the Subsidiaries holds real or personal property are valid, existing
and enforceable leases and in full force and effect with such exceptions as
are not material and do not materially interfere with the use made or
proposed to be made of such real or personal property, and neither the
Company nor any of the Subsidiaries is in default in any material respect
of any of the terms or provisions of any leases.
(xvii) Deloitte & Touche LLP, who have certified 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 its 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 its Subsidiaries as of the dates
indicated and the consolidated results of operations, cash flows and
stockholders' equity of the Company and its 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 its
Subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) comply in all
material respects with the 1933 Act and the 1933 Act Regulations, present
fairly the information set forth therein, and have been compiled on a basis
consistent with that of the consolidated financial statements of the
Company and its Subsidiaries in the Registration Statement and the
Prospectus (or such Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) comply in all
material respects with the 1933 Act and the 1933 Act Regulations, present
fairly the information shown therein, and to the extent applicable have
been compiled on a basis consistent with the consolidated financial
statements of the Company and its Subsidiaries included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus).
(xix) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that: (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4) the
recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
(xx) 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 the Company nor any of its Subsidiaries has
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree which is material to the condition (financial or
otherwise), earnings, business, prospects or results of operations of
the Company and the Subsidiaries on a consolidated basis;
(B) there has not been any material adverse change in,
or any development which is likely to have a material adverse effect
on, the condition (financial or otherwise), earnings, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis, whether or not arising in the ordinary course
of business;
(C) neither the Company nor any of its 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 is material to the condition (financial or
otherwise), earnings, business, prospects or results of operations of
the Company and the Subsidiaries on a consolidated basis;
(D) the Company has not declared or paid any dividend,
and neither the Company nor any of its 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
(except for the exercise of employee stock options issued under the
Company's 1994 Stock Option Plan, and disclosed as outstanding, stock
issued pursuant to the Company's Employee Stock Purchase Plan and
stock issued pursuant to the Company's Dividend Reinvestment Plan),
long-term debt, obligations under capital leases or, other than in the
ordinary course of business, short-term borrowings of the Company or
the Subsidiaries.
(xxi) The Company and its Subsidiaries maintain insurance of
the types and in the amounts generally deemed adequate for its business,
including, but not limited to, directors' and officers' insurance,
insurance covering real and personal property owned or leased by the
Company and its Subsidiaries against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect. Neither the Company nor any of its
Subsidiaries has been refused any insurance coverage sought or applied for,
and the Company has no reason to believe that it and its Subsidiaries will
not be able to renew their existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xxii) Except as set forth in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Company, threatened,
against or affecting the Company 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, and there is no factual basis for any
such charge, investigation, action, suit or proceeding wherein an
unfavorable decision, ruling or finding could have a material adverse
effect on the consummation of this Agreement or the transactions
contemplated herein or the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company and
the Subsidiaries on a consolidated basis or which is required to be
disclosed in the Registration Statement or the Prospectus (or such
Preliminary Prospectus) and is not so disclosed.
(xxiii) 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 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.
(xxiv) The Company has not taken, directly or indirectly, any
action designed to result in or which has constituted or which might cause
or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares, and the Company
is not aware of any such action taken or to be taken by any affiliate of
the Company.
(xxv) The Company 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 Company nor any of the Subsidiaries
has received any notice of infringement or conflict with asserted rights of
others with respect to any patents, copyrights, trademarks, service marks,
trade names or other rights, which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis, and the Company does
not know of any basis for any such infringement or conflict.
(xxvi) Except as adequately disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus), no labor dispute involving the Company or the Subsidiaries
exists or, to the knowledge of the Company, is imminent which might be
expected to have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis or which is
required to be disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). Neither the Company
nor any of the Subsidiaries has received notice of any existing or
threatened labor dispute by the employees of any of its principal
suppliers, customers or contractors which might be expected to have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xxvii) The Company and the Subsidiaries have timely and
properly prepared and filed all necessary federal, state, local and foreign
tax returns which are required to be filed and have paid all taxes shown as
due thereon and have paid all other taxes and assessments to the extent
that the same shall have become due, except such as are being contested in
good faith or where the failure to so timely and properly prepare and file
would not have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis. The Company
has no knowledge of any tax deficiency which has been or might be assessed
against the Company or the Subsidiaries which, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxviii) 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 Company or the
Subsidiaries, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by general principles of equity and by
bankruptcy or other laws relating to or affecting creditors' rights
generally. Except as disclosed in the Prospectus (or such Preliminary
Prospectus), to the knowledge of the Company, 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; provided, however, that the
foregoing shall not apply to defaults by borrowers from the Bank.
(xxix) No relationship, direct or indirect, exists between or
among the Company or the Subsidiaries, on the one hand, and the directors,
officers, trustees, stockholders, customers or suppliers of the Company or
the Subsidiaries, on the other hand, which is required to be described in
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) which is not
adequately described therein.
(xxx) No person has the right to request or require the
Company 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 Shares.
(xxxi) The Common Stock has been approved for quotation on the
Nasdaq National Market subject to official notice of issuance, and will be
quoted on a "when issued" basis prior to the Closing.
(xxxii) Except as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
there are no contractual encumbrances or restrictions or no 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 Company, (B) to make any loans or advances to, or
investments in, the Company or (C) to transfer any of its property or
assets to the Company.
(xxxiii) Without limiting the generality of any of the foregoing
representations and warranties, the Trust Department Service Agreement (the
"Service Agreement") dated August 24, 1992
between the Bank and The Trust Company of Oklahoma (the "Trust Company") is
in full force and effect and neither the Bank nor, to the best knowledge of
the Company, the Trust Company, is in violation, breach or default (with or
without notice or lapse of time or both) in the performance or observance
of any term, covenant, agreement, obligation, representation, warranty or
condition contained in the Service Agreement and the Service Agreement
complies in all material respects with all applicable federal, state and
local statutes, regulations, ordinances and rules.
(xxxiv) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(xxxv) The Company has not distributed and will not distribute
prior to the Closing Date any offering material in connection with the
offering of the Shares, 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
Representative.
(b) Each Selling Shareholder represents and warrants, jointly and
severally, to, and agrees with, each of the Underwriters and the Company that:
(i) Such Selling Shareholder has caused to be executed and
delivered on his or her behalf (A) a Custody Agreement (the "Custody
Agreement") appointing [_________________] as such Selling Shareholder's
custodian (the "Custodian") with authority to deliver on behalf of such
Selling Shareholder certificates, representing the Shares to be sold by the
Selling Shareholder pursuant to this Agreement and (B) a Power of Attorney
(the "Power of Attorney") appointing [____________] and [______________] as
such Selling Shareholder's agents and attorneys-in-fact (the "Attorneys-in-
Fact") with the Attorneys-in-Fact having authority to execute and deliver
this Agreement on behalf of such Selling Shareholder, to determine the
purchase price to be paid by the Underwriters to the Selling Shareholders
as provided in Section 1, to authorize the delivery of the Shares to be
sold by it hereunder and otherwise to act on behalf of such Selling
Shareholder in connection with the transactions contemplated by this
Agreement and such Custody Agreement. Pursuant to the Power of Attorney
and Custody Agreement, such certificates in negotiable form, endorsed in
blank or accompanied by blank stock powers duly executed, with signatures
appropriately guaranteed, representing the Shares to be sold by such
Selling Shareholder hereunder have been deposited with the Custodian for
the purpose of delivery pursuant to this Agreement. Such Selling
Shareholder has full legal right, power and authority to execute the Power
of Attorney, to enter into this Agreement and the Custody Agreement, and to
sell, assign, transfer and deliver to the Underwriters the Shares to be
sold by such Selling Shareholder hereunder. Such Selling Shareholder
agrees that each of the shares of Common Stock represented by the
certificates on deposit with the Custodian is subject to the interests of
the Underwriters hereunder, that the arrangements made for such custody,
the appointment of the Custodian and of the Attorneys-in-Fact under the
Custody Agreement and the Power of Attorney and the right, power and
authority of the Custodian to deliver, in accordance with the terms of the
Custody Agreement, the Shares to be sold by such Selling Shareholder to the
Underwriters, are to that extent irrevocable and that the obligations of
the Selling Shareholder hereunder shall not be terminated, except as
expressly provided in this Agreement, the Custody Agreement or the Power of
Attorney, by any act of such Selling Shareholder, by operation of law, by
the death or incapacity of such Selling Shareholder (or in the case of an
estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust) or otherwise. If the Selling
Shareholder or an executor or trustee of the Selling Shareholder, as the
case may be, should die or become incapacitated, if any such estate or
trust should be terminated, or if any other event should occur, before
delivery of the Shares hereunder, the certificates representing the Shares
to be sold by the Selling Shareholder hereunder and other documents then on
deposit with the Custodian shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement and actions
taken by the Attorneys-in-Fact in accordance with the Power of Attorney
shall be valid as if such death, incapacity, termination or other event had
not occurred, regardless of whether or not the Custodian or the Attorneys-
in-Fact, or any of them, shall have received notice thereof. This
Agreement, the Power of Attorney and the Custody Agreement have been duly
authorized, executed and delivered by or on behalf of such Selling
Shareholder in the forms heretofore delivered to you and are the legal,
valid and binding agreement of such Selling Shareholder, enforceable in
accordance with their 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.
(ii) Such Selling Shareholder has, and on the Closing Date will
have, good and marketable title to the Shares to be sold by the Selling
Shareholder hereunder and full right, power and authority to enter into
this Agreement and to sell, assign, transfer and deliver such Shares, free
and clear of all voting trust arrangements, security interests, liens,
mortgages, pledges, encumbrances, restrictions, preemptive rights, claims,
equities and other defects; and upon delivery of and payment for such
Shares as provided in this Agreement, good and marketable title thereto,
free and clear of all voting trust arrangements, security interests, liens,
mortgages, pledges, encumbrances, restrictions, claims, equities and
defects, will pass to the Underwriters. Except as disclosed in the
Prospectus, such Selling Shareholder is on the date hereof, and on the
Closing Date will be, the sole record and beneficial owner of the Shares to
be sold by the Selling Shareholder hereunder.
(iii) Neither the execution, delivery or performance of this
Agreement, the Power of Attorney or the Custody Agreement, nor the
consummation of the transactions contemplated hereby or thereby, (A) will
require any consents, approvals, authorizations, registrations or
qualifications, except such as have been obtained, such as may be required
under state securities or blue sky laws of any jurisdiction in the United
States and, if the Registration Statement is not effective under the 1933
Act as of the time of execution hereof, such as may be required (and shall
be obtained as provided in this Agreement) under the 1933 Act, or (B) will
conflict with or result in a breach or violation by such Selling
Shareholder of any of the terms or provisions of, or constitute a default
by such Selling Shareholder under, any voting trust agreement, shareholders
agreement, mortgage, deed of trust, trust (constructive or other), security
agreement, loan agreement, lease, franchise, license, indenture, permit or
other agreement or instrument to which such Selling Shareholder is a party
or by which such Selling Shareholder or any of its properties is bound or
any statute, or any judgment, decree, order, rule or regulation of any
court or governmental agency or body applicable to such Selling
Shareholder.
(iv) Such Selling Shareholder has not, since the filing of the
date of the first public announcement of the offering of the Shares, (A)
sold, bid for, purchased, attempted to induce any person to purchase, or
paid anyone any consideration for soliciting purchases of, Common Stock (or
securities convertible into or exchangeable for Common Stock) or (B) paid
or agreed to pay any person any consideration for soliciting another to
purchase any securities of the Company, except for the sale of shares of
Common Stock by such Selling Shareholder under this Agreement.
(v) Such Selling Shareholder has not 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 Company to facilitate the
sale or resale of the Shares, and such Selling Shareholder is not aware of
any such action taken or to be taken by any affiliate of such Selling
Shareholder.
(vi) Such Selling Shareholder does not have any knowledge or
any reason to believe that the Registration Statement or the Prospectus (or
any amendment or supplement thereto) contains any untrue statement of fact
or omits to state any fact required to be stated therein or necessary to
make the statements therein not misleading. To the extent that any
statement or omission is made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto relating to such Selling Shareholder or in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Selling Shareholder, such Preliminary Prospectus did, and
the Registration Statement and the Prospectus and any amendments or
supplements thereto when they become effective or are filed with the
Commission, as the case may be, will conform to the requirements of the
1933 Act and the 1933 Act Regulations and will not contain any untrue
statement of fact or omit to state any fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading. Such Selling
Shareholder has reviewed the most recent Preliminary Prospectus, the
Prospectus (if the same shall be in existence) and the Registration
Statement, and the information regarding such Selling Shareholder set forth
therein, including information set forth under the caption "Selling
Shareholders; Ownership of Common Stock," is complete and accurate and
fairly presents the information required to be stated therein.
(vii) The representations and warranties of such Selling
Shareholder in the Custody Agreement and the Power of Attorney are, and on
the Closing Date and any Option Closing Date will be, true and correct.
(viii) Such Selling Shareholder is not aware that any of the
representations and warranties of the Company set forth in Section 2(a) of
this Agreement is untrue or inaccurate in any material respect, and the
sale by the Selling Shareholder of shares of Common Stock pursuant to this
Agreement is not prompted by any adverse information concerning the Company
or any of its Subsidiaries that is not set forth in the Prospectus.
3. OFFERING BY THE UNDERWRITERS. After the Registration Statement
----------------------------
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriters propose to offer the Firm
Shares for sale to the public upon the terms and conditions set forth in the
Prospectus. The Underwriters may from time to time thereafter reduce the public
offering price and change the other selling terms, provided the proceeds to the
Company shall not be reduced as a result of such reduction or change.
The Underwriters may reserve and sell such of the Shares purchased by
the Underwriters as the Underwriters may elect to dealers chosen by them (the
"Selected Dealers") at the public offering price set forth in the Prospectus
less the applicable Selected Dealers' concessions set forth therein, for re-
offering by Selected Dealers to the public at the public offering price. The
Underwriters may allow, and Selected Dealers may re-allow, a concession set
forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE COMPANY AND THE SELLING SHAREHOLDERS.
-------------------------------------------------------------
The Company and, where expressly stated, the Selling Shareholders, covenant with
each of the Underwriters as follows:
(a) The Company shall use its 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
Company 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
Representative of such timely filing.
(b) The Company shall notify you 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 of any request of the Commission to amend or
supplement the Registration Statement, any Preliminary Prospectus or the
Prospectus or for additional information; and
(iii) 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 Shares for offering or sale in any jurisdiction
or the institution or threat of institution of any proceedings for any of
such purposes. The Company shall use its 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 Company shall furnish to you, from time to time without
charge, as soon as available, as many copies as you may reasonably request of
(i) the registration statement as originally filed and of all amendments and
supplements 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 Company shall comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Shares as contemplated herein and in the
Prospectus. The Company 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 and will not file any document under
the 1934 Act before the termination of the offering of the Shares by the
Underwriters if the document would be deemed to be incorporated by reference
into the Registration Statement or the Prospectus of which you 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 you or your counsel shall
reasonably object. If it is necessary, in your reasonable opinion or in the
reasonable opinion of counsel for the Underwriters, to amend or supplement the
Registration Statement or the Prospectus in connection with the distribution of
the Shares, the Company shall forthwith amend or supplement the Registration
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission, and furnishing to you, such number of copies as you may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or the Prospectus, as the case may be
(in form and substance reasonably satisfactory to you and to counsel for the
Underwriters). If any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus to correct an untrue statement of fact or to
include any fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any reason
it is necessary at any time to amend or supplement the Prospectus to comply with
the 1933 Act and the 1933 Act Regulations, the Company 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 you,
such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory to you and to counsel for the Underwriters) so that, as
so amended or supplemented, the Prospectus shall not contain an untrue statement
of fact or omit to state any fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(e) The Company shall cooperate with you and counsel for the
Underwriters in order to qualify the Shares for offering and sale under the
securities or blue sky laws of such jurisdictions as you may reasonably request
and shall continue such qualifications in effect so long as may be advisable for
distribution of the Shares; provided, however, that the Company shall not be
required to qualify to do business as a foreign corporation or file a general
consent to service of process in any jurisdiction in connection with the
foregoing. The Company shall file such statements and reports as may be
required by the laws of each jurisdiction in which the Shares have been
qualified as above. The Company will notify you immediately of, and confirm in
writing, the suspension of qualification of the Shares or threat thereof in any
jurisdiction.
(f) The Company shall make generally available to its security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Company
conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Company shall use the proceeds from the sale of the Shares to
be sold by the Company hereunder in the manner specified in the Prospectus under
the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Company shall furnish
to the Representative copies of all reports and communications (financial or
otherwise) furnished by the Company to the holders of the Common Stock 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 condition of the Company as the
Representative may reasonably request, other than such documents, reports and
information for which the Company has the legal obligation not to reveal to the
Representatives.
(i) For a period of 180 days from the date hereof, neither the
Company nor any Selling Shareholder shall, directly or indirectly, offer for
sale, sell or agree to sell or otherwise dispose of (except, in the case of
the Selling Shareholder, for bona fide gifts), any shares of Common Stock, or
any securities convertible into, exercisable or exchangeable for, or that are
the economic or voting equivalent of, any such shares of Common Stock, or
announce the offering of, or register with the Commission, any shares of Common
Stock or any such other securities, without your prior written consent; and the
Company will use its best efforts to cause the persons listed on Schedule III
hereto not to, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of (except for bona fide gifts) any shares of Common Stock, or
any securities convertible into, exercisable or exchangeable for, or that are
the economic or voting equivalent of, any such shares of Common Stock for a
period of 180 days from the date hereof without your prior written consent.
(j) The Company shall use its best efforts to obtain approval for,
and maintain the quotation of the Common Stock 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 Representative.
(k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Shares under the 1933 Act or relating
to any documents incorporated by reference into the Registration Statement or
the Prospectus.
(l) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Shares shall expire or (ii) the day following the
Option Closing Date with respect to any Option Shares that the Underwriters
shall elect to purchase, except as described in or contemplated by the
Prospectus, neither the Company nor any of the Subsidiaries shall take any
action (or refrain from taking any action) which will result in the Company or
the Subsidiaries incurring any liability or obligation, direct or contingent, or
enter into any transaction, except in the ordinary course of business, and there
will not be any change in the financial position, capital stock, or any increase
in long-term debt, obligations under capital leases or short-term borrowings of
the Company and the Subsidiaries on a consolidated basis.
(m) The Company shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Representative, redeem or call
for redemption, or prepay or give notice of prepayment (or announce any
redemption or call for redemption, or any repayment or notice of prepayment) of
any of the Company's securities which are convertible into Common Stock.
(n) Neither the Company nor any Selling Shareholder shall take,
directly or indirectly, any action designed to result in or which has
constituted or which might cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Shares and neither the Company nor any Selling Shareholder is aware of any such
action taken or to be taken by any affiliate of the Company or any Selling
Shareholder or (ii) otherwise violate the Commission's Regulation M shares.
(o) Prior to the Closing Date (and, if applicable, the Option Closing
Date), neither the Company nor any Selling Shareholder will issue any press
release or other communication directly or indirectly or hold any press
conference with respect to the Company, the Subsidiaries or the offering of the
Shares without your prior written consent, which will not be unreasonably
withheld.
(p) The Company and the Subsidiaries shall conduct their businesses
in compliance with all applicable federal and state laws, rules, regulations,
decisions, directives and orders (including, without limitation, the applicable
provisions of the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act
Regulations, the BHC Act, the National Bank Act, the Federal Deposit Insurance
Corporation Improvement Act, the Oklahoma General Corporation Act, the Oklahoma
banking laws and all decisions, directives and orders of the FDIC, the OCC, the
Oklahoma Banking Commissioner, the Oklahoma Banking Board, and the Board of
Governors of the Federal Reserve System, as applicable).
(p) The Company and the Subsidiaries will maintain and keep accurate
books and records reflecting their assets and maintain internal accounting
controls which provide reasonable assurance that (1) transactions are executed
in accordance with management's authorization, (2) transactions are recorded as
necessary to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the Company and its
Subsidiaries, (3) access to the assets of the Company and its Subsidiaries is
permitted
only in accordance with management's authorization, and (4) the recorded
accounts of the assets of the Company and its Subsidiaries are compared with
existing assets at reasonable intervals.
(q) Each of the Selling Shareholders shall (i) cooperate to the
extent necessary to cause the Registration Statement or any post-effective
amendment thereto to become effective at the earliest possible time; (ii) pay
all Federal and other taxes, if any, on the transfer or sale of the Shares being
sold by the Selling Shareholder to the Underwriters; (iii) do or perform all
things required to be done or performed by the Selling Shareholder prior to the
Closing Date or any Option Closing Date, as the case may be, to satisfy all
conditions precedent to the delivery of the Shares pursuant to this Agreement;
and (iv) advise you promptly, and if requested by you, will confirm such advice
in writing, of any change in the Company's condition (financial or other), net
worth, business, affairs, management, prospects, results of operations or cash
flow or of any change in information relating to such Selling Shareholder or the
Company or any new information relating to the Company or relating to any matter
stated in the Prospectus or any amendment or supplement thereto which comes to
the attention of such Selling Shareholder that suggests that any statement made
in the Registration Statement or the Prospectus (as then amended or
supplemented, if amended or supplemented) is or may be untrue in any material
respect or that the Registration Statement or Prospectus (as then amended or
supplemented, if amended or supplemented) omits or may omit to state a fact or a
fact necessary to be stated therein in order to make the statements therein not
misleading in any material respect, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented, if amended or supplemented) in
order to comply with the 1933 Act or any other law.
5. PAYMENT OF EXPENSES.
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(a) Whether or not this Agreement is terminated or the sale of the
Shares to the Underwriters is consummated, the Company covenants and agrees that
it will pay or cause to be paid (directly or by reimbursement) all costs and
expenses incident to the performance of the obligations of the Company and the
Selling Shareholders under this Agreement, including:
(i) 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,
underwriters' questionnaires, underwriters' powers of attorney, agreements among
underwriters and selected dealers' agreements), the certificates for the Shares
and the Preliminary and Final Blue Sky Memoranda and any legal investment
surveys and any supplements thereto;
(ii) all fees, expenses and disbursements of the Company's
counsel and accountants;
(iii) all fees and expenses incurred in connection with the
qualification of the Shares under the securities or blue sky laws of such
jurisdictions as you may request, including all filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith,
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;
(iv) all fees and expenses incurred in connection with filings
made with the NASD;
(v) any applicable fees and other expenses incurred in
connection with the listing of the Shares on the Nasdaq National Market;
(vi) the cost of furnishing to you as many copies as you
reasonably request of the initial registration statements, any Preliminary
Prospectus, the Registration Statement and the Prospectus and all amendments or
supplements thereto;
(vii) the costs and charges of any transfer agent or registrar
and the fees and disbursements of counsel for any transfer agent or registrar;
(viii) all costs and expenses (including stock transfer taxes)
incurred in connection with the printing, issuance and delivery of the Shares to
the Underwriters; and
(ix) all other costs and expenses incident to the performance
of the obligations of the Company hereunder that are not otherwise specifically
provided for in this Section 5.
Provided, however, that the Company shall not be responsible for payment of any
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fees, expenses and disbursements of the Selling Shareholders' counsel or any
underwriting discount or commission applicable to the sale of Shares by the
Selling Shareholders hereunder.
(b) Whether or not this Agreement is terminated or the sale of the
Shares to the Underwriters is consummated, each of the Selling Shareholders
covenants and agrees that such Selling Shareholder will pay all costs and
expenses incident to the performance of such Selling Shareholder's obligations
hereunder which are not otherwise specifically provided for in the Section 5(a);
including (i) any fees and expenses of counsel for such Selling Shareholder,
(ii) such Selling Shareholder's pro rata share of the fees and expenses of the
Attorneys-in-Fact and the Custodian, and (iii) all expenses (including stock
transfer taxes) incident to the sale and delivery of the Shares to be sold by
such Selling Shareholder to the Underwriters hereunder.
(c) If the sale of Shares contemplated by this Agreement is not
completed for any reason whatsoever, including, without limitation, if this
Agreement is terminated by the Company or by you for any reason whatsoever,
whether or not such termination is allowable hereunder, the Company will pay you
your accountable out-of-pocket expenses in connection herewith or in
contemplation of the performance of your obligations hereunder, including,
without limitation, travel expenses, reasonable fees, expenses and disbursements
of counsel or other out-of-pocket expenses incurred by you in connection with
any discussion of the offering of the Shares or the contents of the Registration
Statement, any investigation of the Company and the Subsidiaries, or any
preparation for the marketing, purchase, sale or delivery of the Shares in each
case following presentation of reasonably detailed invoices therefor.
If the sale of the Shares contemplated by this Agreement is completed,
the Company shall not be responsible for payment of fees or disbursements of
counsel for the Underwriters other than in accordance with paragraph (c) above,
or for the reimbursement of any expenses of the Underwriters, provided that any
fees previously paid to the Representative for its acting as financial advisor
to the Company as disclosed in the Prospectus shall not have to be refunded.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of
-------------------------------------------
the Underwriters to purchase and pay for the Firm Shares and, following exercise
of the option granted by the Company in Section 1 of this Agreement, the Option
Shares, are subject, in your sole discretion, to the accuracy of and compliance
with the representations and warranties and agreements of the Company and the
Selling Shareholders herein as of the date hereof and as of the Closing Date (or
in the case of the Option Shares, if any, as of the Option Closing Date), to the
accuracy of the written statements of the Company and its officers and the
Selling Shareholders made pursuant to the provisions hereof, to the performance
by the Company and the Selling Shareholders of their respective covenants and
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Company or the Representative, shall be contemplated by
the Commission or any state authority. Any request on the part of the Commission
or any state authority for additional information (to be included in the
Registration Statement or Prospectus or otherwise) shall have been disclosed to
you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) No Underwriter shall have advised the Company or any Selling
Shareholder 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 any fact which, in your opinion, is material or omits to
state a fact which, in your opinion, is material and is required to be stated
therein or is necessary to make statements therein (in the case of the
Prospectus or any amendment or supplement thereto, in light of the circumstances
under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization by the Company, form and validity of this Agreement, and the
authorization by the Company 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 shall be satisfactory in all respects to counsel for the Underwriters,
and the Company and the Subsidiaries shall have furnished to such counsel all
documents and information relating thereto that they may reasonably request to
enable them to pass upon such matters.
(d) Xxxxxxx, Xxxxx & Xxxxx, L.L.P., counsel for the Company, shall
have furnished to you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Oklahoma, and is
duly registered as a bank holding company under the BHC Act. Each of the
Subsidiaries is duly incorporated or organized (as the case may be), validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization (as the case may be). Each of the Company and the
Subsidiaries has full corporate power and authority to own or lease its
properties and to conduct its business as such business is described in the
Prospectus and is currently conducted. All outstanding shares of capital stock
of the Subsidiaries have been duly authorized and validly issued and are fully
paid and nonassessable (except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o) and, to such
counsel's actual knowledge, except as disclosed in the Prospectus, there are no
outstanding rights, options or warrants to purchase any such shares or
securities convertible into or exchangeable for any such shares. The Bank is a
member of the Federal Reserve System, and to such counsel's knowledge, no
proceedings for termination or revocation of such membership are pending or
threatened. The deposit accounts of the Bank are insured by the FDIC up to the
maximum amount provided by law, and, to such counsel's knowledge, no
proceedings for the termination or revocation of any such insurance or such
membership are pending or threatened.
(ii) The capital stock of the Company conforms to the
description thereof contained in the Prospectus. The outstanding capital
stock of the Company as of September 30, 1998 is as set forth under the
caption "Capitalization" in the Prospectus, has been duly authorized and
validly issued, is fully paid and nonassessable and, to the knowledge of
such counsel, not in violation of or subject to any other rights to
subscribe for or purchase any securities. The form of certificates to
evidence the Common Stock has been approved by the Board of Directors and
is in due and proper form and complies with all applicable requirements. To
such counsel's actual 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, except as described in the
Prospectus.
(iii) The Company has all requisite corporate power and
authority to issue, sell and deliver the Shares in accordance with and upon
the terms and conditions set forth in this Agreement and in the
Registration Statement and the Prospectus. All corporate action required
to be taken by the Company for the authorization, issuance, sale and
delivery of the Shares has been validly and sufficiently taken. All of the
Shares 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 and the Prospectus. The Common Stock has been
approved for quotation on the Nasdaq National Market subject to official
notice of issuance. There are no preemptive or other rights to subscribe
for or to purchase, and other than as disclosed in the Prospectus no
restrictions upon the voting or transfer of, any shares of capital stock of
the Company or the Subsidiaries pursuant to the corporate charter, by-laws
or other governing documents of the Company or the Subsidiaries, or, to
such counsel's actual knowledge,
any agreement or other instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries
may be bound.
(iv) The Company has all requisite corporate power to enter
into and perform its obligations under this Agreement and this Agreement
has been duly and validly authorized, executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as the enforcement hereof
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) To such counsel's actual knowledge, neither the Company
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 other governing document. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
herein 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 Company or the Subsidiaries or the
Shares pursuant to, or constitute a material breach or violation of, or
constitute a default under, with or without notice or lapse of time or
both, any of the terms, provisions or conditions of the charter, by-laws or
other governing document of the Company or the Subsidiaries, or to such
counsel's actual knowledge, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise, license or any
other agreement or instrument to which the either the Company 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, franchise, license,
Permit (as defined herein), rule or regulation, including, without
limitation, Section 13 of the 1934 Act, of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or foreign,
known to such counsel having jurisdiction over the Company or the
Subsidiaries or any of their respective properties which, in each case, is
material to the Company on a consolidated basis. No authorization,
approval, consent or order of, or filing, registration or qualification
with, any person (including, without limitation, any court, governmental
body or authority) is required in connection with the transactions
contemplated by this Agreement, except such as required under the 1933 Act,
and such as may be required under state securities laws in connection with
the purchase and distribution of the Shares by the Underwriters.
(vi) To the best of such counsel's actual knowledge, holders of
securities of the Company either do not have any right that, if exercised,
would require the Company to cause such securities to be included in the
Registration Statement or have waived such right, except as adequately
disclosed in the Prospectus. To the best of such counsel's actual
knowledge, neither the Company nor any of the Subsidiaries is a party to
any agreement or other instrument which grants rights for or relating to
the registration of any securities of the Company except as adequately
disclosed in the Prospectus.
(vii) Except as set forth in the Registration Statement and the
Prospectus, to such counsel's actual knowledge, no action, suit or
proceeding at law or in equity is pending or threatened in writing to which
the Company or any of the Subsidiaries is or may be a party, and no action,
suit or proceeding is pending or threatened in writing against or affecting
the Company or any of the Subsidiaries or any of their properties before or
by any court or governmental official, commission, board or other
administrative agency, authority or body, or any arbitrator, wherein an
unfavorable decision, ruling or finding could have a material adverse
effect on the consummation of this Agreement or the issuance and sale of
the Shares as contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis or which is
required to be disclosed in the Registration Statement or the Prospectus
and is not so disclosed.
(viii) 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
Registration Statement and the Prospectus, except such as have been
obtained under the 1933 Act, and 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 Shares by the Underwriters, and from
the Nasdaq National Market relating to the listing of the Shares.
(ix) The Registration Statement and the Prospectus and any
amendments or supplements thereto and any documents incorporated therein by
reference (other than the financial statements or other financial data
included therein or omitted therefrom and Underwriters' Information and
Selling Shareholders' Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations as of their respective dates
of effectiveness; the conditions for use of Form S-2 have been satisfied;
and, as of the date they were filed with the Commission, the documents
incorporated by reference in the Prospectus appear on their face to comply
as to form and be appropriately responsive in all material respects with
the requirements of the 1934 Act and the applicable 1934 Act Rules and
Regulations (other than the financial statements or other financial data
included therein or omitted therefrom).
(x) To such counsel's actual 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.
(xi) The statements under the captions "Risk Factors",
"Capitalization" and "Description of Capital Stock", in the Prospectus and
in Item 15 of Part II of the Registration Statement and in the Company's
Annual Report on Form 10-K for the year ended December 31, 199[__] under
Item 1, "Business -- Regulation of Branch and Interstate Banking" and
"Supervision and Regulation", Item 11, "Management Remuneration" and Item
13, "Certain Relationships and Related Transactions", insofar as such
statements constitute a summary of legal and regulatory matters, documents
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 and regulatory matters,
documents and proceedings in all material respects, other than financial
and statistical data as to which said counsel expresses no opinion or
belief.
(xii) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made within the time period required by Rule 424(b); to the best of
such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop order
are pending or threatened by the Commission.
(xiii) Except as described in or contemplated by the Prospectus,
to the best of such counsel's knowledge, there are no contractual
encumbrances or restrictions, or no material legal restrictions (excluding
any encumbrances or restrictions of general application to national banks
contained in laws, rules and regulations of applicable regulatory
authorities) 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 Company, (B) to make any
loans or advances to, or investments in, the Company or (C) to transfer any
of its property or assets to the Company.
(xiv) To such counsel's actual knowledge, (A) the business and
operations of the Company and the Subsidiaries comply in all material
respects with all statutes, ordinances, laws, rules and regulations
applicable thereto, except in those instances where non-compliance would
not materially impair the ability of the Company and the Subsidiaries to
conduct their businesses; and (B) the Company and the Subsidiaries possess
and are operating in all material respects in compliance with the terms,
provisions and conditions of all Permits (as defined herein) known to such
counsel and required to conduct their businesses as described in the
Prospectus and which are material to the Company and the Subsidiaries on a
consolidated basis, except in those instances where the loss thereof or
non-compliance therewith would not have an adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or results
of operations of the Company and the Subsidiaries on a consolidated basis;
such counsel has no actual knowledge that any such Permit (as defined
herein) is not valid and in full force and effect, and such counsel has no
actual knowledge of any action, suit or proceeding that is pending or
threatened (or any basis therefor) which may lead to the revocation,
termination, suspension or non-renewal of any such Permit (as defined
herein), except in those instances where the loss thereof or non-compliance
therewith would not materially impair the ability of the Company or the
Subsidiaries to conduct their businesses.
In giving this opinion, such counsel may rely, as to matters governed
by the laws of Oklahoma and as to the ownership of the capital stock of the Bank
by the Company, and the due authorization and valid issuance of fully paid and
nonassessable stock of the Company, SNBC, CRK and Stillwater Properties, upon
the opinion of [_____________] rendered pursuant to Section 6(e) hereof. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied upon certificates of officers of the Company 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 (v), (x) and (xiv) hereof
and certificates of public officials.
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 Company and
with its independent public accountants and with the Representative 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 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,
Underwriters' Information and Selling Shareholder Information, as to which such
counsel need express no opinion), at the time the Registration Statement or any
such amendment became effective, contained any untrue statement of material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading or (B) that the Prospectus or any amendment or
supplement thereto or the documents incorporated therein by reference (except
for the financial statements and related schedules and statistical data included
therein or omitted therefrom Underwriters' Information and Selling Shareholder
Information, as to which such counsel need express no opinion), at the time the
Registration Statement became effective (or, if the term "Prospectus" refers to
the prospectus first filed pursuant to Rule 424(b) of the 1933 Act Regulations,
at the time the Prospectus was issued), at the time any such amended or
supplemented Prospectus was issued, at the Closing Date and, if applicable, the
Option Closing Date, contained or contains any untrue statement of material fact
or omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or (C) that there is any amendment to the
Registration Statement required to be filed that has not already been filed.
(e) [_____________], counsel for the Company, shall have furnished to
you their signed opinion, dated the Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) Each of the Company, SNBC, CRK and Stillwater Properties has
been duly incorporated and is validly existing and in good standing under
the laws of the State of Oklahoma. The Company is duly registered as a
bank holding company under the BHC Act. The Bank is a national banking
association duly incorporated, validly existing and in good standing under
the laws of the United States of America. The Bank is a member of the
Federal Reserve System, and to the knowledge of such counsel, no
proceedings for the termination or revocation of such membership are
pending or threatened. The deposit accounts of the Bank are insured by the
FDIC up to the maximum amount provided by law, and to the knowledge of such
counsel, no proceedings for the termination or revocation of any such
insurance or such membership are pending or threatened. Each of the
Company, SNBC, CRK, Stillwater Properties and the Bank has full corporate
power and authority to conduct its business as described in the Prospectus
in all material respects and as currently conducted in all material
respects. Except as disclosed in the Prospectus, to the best of such
counsel's knowledge, the Company owns directly, free and clear of any
security interests, mortgage, pledge, lien, charge, encumbrance,
restriction upon voting or transfer, preemptive rights or any other claim
or equity, all outstanding shares of capital stock of the Bank. All of
such shares of the Bank, SNBC, CRK and Stillwater Properties have been duly
authorized and validly issued and are fully paid and nonassessable (except
to the extent such shares may be deemed assessable under 12 U.S.C. Section
55 or 12 U.S.C. Section 1831o) and, to the best of such counsel's
knowledge, except as disclosed in the Prospectus, there are no outstanding
rights, options or warrants to purchase any such shares or securities
convertible into or exchangeable for any such shares.
(ii) The capital stock of the Company conforms to the
description thereof contained in the Prospectus in all material respects.
The outstanding capital stock of the Company as of September 30, 1998 is as
set forth under the caption "Capitalization" in the Prospectus, has been
duly authorized and validly issued, is fully paid and nonassessable and, to
the knowledge of such counsel, has been issued in compliance with
applicable federal and state securities laws not in violation of or subject
to any other rights to subscribe for or purchase any securities. The form
of certificates to evidence the Common Stock has been approved by the Board
of Directors and is in due and proper form and complies with all applicable
requirements of Oklahoma law. 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, except as described in the Prospectus.
(iii) There are no preemptive or other rights to subscribe for
or to purchase, and, other than as described in the Prospectus, no
restrictions upon the voting or transfer of, any shares of capital stock of
the Company, the Bank, SNBC, CRK or Stillwater Properties pursuant to the
corporate charter, by-laws or other governing documents of the Company, the
Bank, SNBC, CRK or Stillwater Properties or, to the best of such counsel's
knowledge, pursuant to any agreement or other instrument to which the
Company, the Bank, SNBC, CRK or Stillwater Properties is a party or by
which the Company, the Bank, SNBC, CRK or Stillwater Properties may be
bound.
(iv) The Company has all requisite corporate power to enter into
and perform its obligations under this Agreement and this Agreement has
been duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as the enforcement hereof
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) To the best of such counsel's knowledge, neither the
Company, the Bank, SNBC, CRK nor Stillwater Properties 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 other governing document. The
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated herein 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 Company, the
Bank, SNBC, CRK or Stillwater Properties or the Shares 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 other governing
document of the Company, the Bank, SNBC, CRK or Stillwater Properties, or
to the best knowledge of such counsel's after due inquiry, any material
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license or any other agreement or instrument to
which the Company, the Bank, SNBC, CRK or Stillwater Properties 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 (as defined
herein), rule or regulation, including, without limitation, Section 13 of
the 1934 Act, of any court, arbitrator, government, or governmental agency
or instrumentality, domestic or foreign, having jurisdiction over the
Company, the Bank, SNBC, CRK or Stillwater Properties or any of their
respective properties which, in each case, is material to the Company on a
consolidated basis. No authorization, approval, consent or order of, or
filing, registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required under
Oklahoma law in connection with the transactions contemplated by this
Agreement except as may be required under Oklahoma securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
(vi) To the best of such counsel's knowledge, holders of
securities of the Company either do not have any right that, if exercised,
would require the Company to cause such securities to be included in the
Registration Statement or have waived such right, except as adequately
disclosed in the Prospectus. To the best of such counsel's knowledge,
neither the Company, the Bank, SNBC, CRK nor Stillwater Properties is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Company except as
described in the Prospectus.
(vii) Except as set forth in the Registration Statement and the
Prospectus, to the best of such counsel's knowledge, no action, suit or
proceeding at law or in equity is pending or threatened in writing to which
the Company or any of the Subsidiaries is or may be a party, and no action,
suit or proceeding is pending or threatened in writing against or affecting
the Company or any of the Subsidiaries or any of their properties before or
by any court or governmental official, commission, board or other
administrative agency, authority or body, or any arbitrator, wherein an
unfavorable decision, ruling or finding could have a material adverse
effect on the consummation of this Agreement or the transactions
contemplated herein or the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company and
the Subsidiaries on a consolidated basis.
(viii) 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 by
Oklahoma law in connection with the transactions contemplated by this
Agreement except such as may be required under Oklahoma securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
(ix) To such counsel's knowledge, based solely upon
identification of material contracts, agreements, leases and other material
documents by the Company, there is no material contract, agreement, lease,
or other document which has not been made in the ordinary course of
business and either is to be performed in whole or in part at or after
[________________, 1999] or within the preceding twenty-four months and (A)
to which any director, officer, or security-holder named in the
Registration Statement is a party (other than any contract involving only
the purchase or sale of current assets having a determinable market price,
at such market price); (B) call for the acquisition or sale of any property
or equipment for a consideration exceeding fifteen percent (15%) of
consolidated fixed assets of the Company at [_____________, 199__]; (C) is
a material lease under which any of the Company, the Bank, SNBC, CRK or
Stillwater Properties holds property described in the Registration
Statement; or (D) is a management contract or compensatory plan, contract
or arrangement in which any director or any officer of the Company named in
the Registration Statement participates, and which has not been described
in or filed as an exhibit to the Registration Statement.
(x) The statements under the captions "Risk Factors",
"Capitalization" and "Description of Capital Stock", in the Prospectus and
in Item 15 of Part II of the Registration Statement and in the Company's
Annual Report on Form 10-K for the year ended December 31, 199[___] under
Item 1, "Business -- Regulation of Branch and Interstate Banking" and
"Supervision and Regulation", Item 11, "Management Remuneration" and Item
13, "Certain Relationships and Related Transactions," insofar as such
statements constitute a summary of legal and regulatory matters, documents
or proceedings referred to therein and depend upon, refer to, or describe
Oklahoma law, are, to the best of such counsel's knowledge, accurate in all
material respects and fairly present the information called for with
respect to such legal and regulatory matters, documents and proceedings.
(xi) 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, 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 Company, (B) to make any loans or advances to,
or investments in, the Company or (C) to transfer any of its property or
assets to the Company.
(xii) To the best of such counsel's knowledge, (A) the business
and operations of the Company and the Subsidiaries comply in all material
respects with all statutes, ordinances, laws, rules and regulations
applicable thereto and which are material to the Company and the
Subsidiaries on a consolidated basis, except in those instances where non-
compliance would not materially impair the ability of the Company or any of
its Subsidiaries to conduct their businesses; and (B) the Company and the
Subsidiaries possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all Permits (as
defined herein) known to such counsel and required to conduct their
businesses as described in the Prospectus and which are material to the
Company 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
Company
and the Subsidiaries on a consolidated basis, such counsel has no knowledge
that any such Permit (as defined herein) is not valid and in full force and
effect, and such counsel has no knowledge of any action, suit or proceeding
that is pending or threatened (or any basis therefor) which may lead to the
revocation, termination, suspension of any such Permit (as defined herein),
except in those instances where the loss thereof or non-compliance
therewith would not materially impair the ability of the Company or any of
its Subsidiaries to conduct their businesses.
In giving this opinion such counsel may state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company, 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, consents, licenses, franchises and
government regulatory authorizations, for purposes of paragraphs (v), (ix)
and (xii) hereof and certificates of public officials.
Such counsel shall state that Xxxxxxx, Xxxxx & Xxxxx, L.L.P. and Xxxxx
Xxxx llp may rely on their opinion in rendering the opinions required by
Sections 6(d) and 6(g).
(f) [_________________], counsel for the Selling Shareholders
shall have furnished to you their signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) To the best of such counsel's knowledge this
Agreement, the Powers of Attorney and the Custody Agreement have been duly
authorized, executed and delivered by or on behalf of each Selling
Shareholder; the Attorney-in-Fact of each Selling Shareholder has been duly
and validly authorized to act in such capacity; the Custodian has been duly
and validly authorized to act as the custodian of the Shares to be sold by
each Selling Shareholder; and the performance and delivery of this
Agreement and the Custody Agreement and the transactions contemplated
hereby and thereby will not result in a breach of or constitute a default
under any material voting trust agreement, shareholders agreement,
mortgage, deed of trust, trust (constructive or otherwise), loan agreement,
security agreement, lease, franchise, license, indenture, permit or other
agreement or instrument known to such counsel to which any Selling
Shareholder is a party or by which any Selling Shareholder or any of its
material properties is bound, or violate any statute, judgment, decree,
order, rule or regulation known to such counsel of any court or
governmental body having jurisdiction over any Selling Shareholder or any
of its properties; and to the knowledge of such counsel, no approval,
authorization, order or consent of any court or governmental body is
required for the execution and delivery of this Agreement, the Powers of
Attorney or the Custody Agreement, or the consummation of the transactions
contemplated hereby or thereby, except such as have been obtained and are
in full force and effect under the 1933 Act and such as may be required
under the rules of the NASD or applicable blue sky laws.
(ii) The Selling Shareholders have full right, power and
authority and any approval required by law to enter into this Agreement,
the Powers of Attorney and the Custody Agreement and to sell, assign,
transfer and deliver the Shares to be sold by such Selling Shareholders
hereunder. Upon delivery of and payment for the Shares being sold by the
Selling Shareholders, the Underwriters that are purchasing such Shares will
receive good and marketable title to such Shares, free and clear of all
liens, encumbrances, equities, claims, restrictions, security interests,
voting trusts, or other defects of title whatsoever.
(iii) No consent, approval, authorization or order of any
court, or governmental agency or body is required for consummation of the
transactions contemplated by this Agreement in connection with the Shares
to be sold by each Selling Shareholder hereunder except such as may be
required under the 1933 Act or the 1933 Act Rules and Regulations or as may
be required by the NASD or under state securities laws.
(iv) To such counsel's knowledge, this Agreement, the Powers
of Attorney and the Custody Agreement are legal, valid and binding
agreements of each of the Selling Shareholders enforceable in accordance
with their respective terms except as enforceability may be limited by
general principles, bankruptcy and of equity and by 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.
In giving the opinion described in paragraph 6(f)(i), such counsel
shall be entitled to rely on representation of Selling Shareholders which they
represent, to the extent such reliance involves factual matters, as such
representations may be given in the Custody Agreement.
(g) Xxxxx Xxxx llp, counsel for the Underwriters, shall have
furnished you their signed opinion, dated the Closing Date or the Option Closing
Date, as the case may be, with respect to the sufficiency of all corporate
procedures and other legal matters relating to this Agreement, the validity of
the Shares, the Registration Statement, the Prospectus and such other related
matters as you may reasonably request and there shall have been furnished to
such counsel such documents and other information as they may request to enable
them to pass on such matters. In giving such opinion, Xxxxx Xxxx llp may rely as
to matters of fact upon statements and certifications of officers of the Company
and of other appropriate persons and may rely as to matters of law, other than
law of the United States and the State of Missouri, and upon the opinions of
Xxxxxxx, Xxxxx & Xxxxx, L.L.P., [______________] and [_______________] described
herein.
(h) On the date of this Agreement and on the Closing Date (and,
if applicable, any Option Closing Date), the Representative on behalf of the
Underwriters shall have received from Deloitte & Touche LLP a letter, dated the
date of this Agreement and the Closing Date (and, if applicable, the Option
Closing Date), respectively, in form and substance satisfactory to the
Representative, confirming that they are independent public accountants with
respect to the Company and the Subsidiaries, within the meaning of the 1933 Act
and the 1933 Act Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company and its Subsidiaries audited by them and included
or incorporated by reference (and if applicable they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants ("AICPA") of the unaudited consolidated
interim financial statements, selected financial data, pro forma financial
information, prospective financial statements and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the Representative) 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 AICPA
as described in SAS No. 71, "Interim Financial Information", inquiries of
officials of the Company and its Subsidiaries responsible for financial and
accounting matters, and such other inquiries and procedures as may be
specified in such letter, which procedures do not constitute an audit in
accordance with U.S. generally accepted auditing standards, nothing came to
their attention that caused them to believe that, if applicable, the
unaudited interim consolidated financial statements of the Company and its
Subsidiaries included in the Registration Statement do not comply as to
form in all material respects with the applicable accounting requirements
of the 1934 Act and 1934 Act Regulations or are not in conformity with U.S.
generally accepted accounting principles applied on a basis substantially
consistent, except as noted in the Registration Statement with the basis
for the audited consolidated financial statements of the Company and its
Subsidiaries 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 of
the Company and its Subsidiaries and other information referred to below, a
reading of the latest available unaudited financial statements of the
Company and its Subsidiaries, inspection of the minute books of the Company
and its Subsidiaries since the date of the latest audited financial
statements of the Company and its Subsidiaries included or incorporated by
reference in the Registration Statement, inquiries of officials of the
Company and its Subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) as of a specified date not more than five days
prior to the date of such letter, there have been any changes in the
capital stock, allowance for loan losses, or net loans receivable of
the Company or its Subsidiaries other than changes related to the
Employee Stock Purchase Plan and/or Dividend Reinvestment Plan, any
increase in the long-term debt, short-term borrowings, obligations
under capital leases or real estate owned of the Company or its
Subsidiaries, any decreases in consolidated total assets or
shareholders' equity of the Company or its Subsidiaries, or any
changes, decreases or increases in other items specified by the
Underwriters, in each case as compared with amounts shown in the
latest unaudited interim consolidated statement of financial condition
of the Company or its Subsidiaries included or incorporated by
reference in the Registration Statement except in each case for
changes, increases or decreases which the Registration Statement
specifically discloses have occurred or may occur or which are
described in such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements included or
incorporated by reference in the Registration Statement to the
specified date referred to in Clause (iii)(A), there were any
decreases in the interest income, net interest income, other income or
net income of the Company and its Subsidiaries or in the net income
per common share of the Company and its Subsidiaries, any increase in
other expense of the Company and its Subsidiaries, or any changes,
decreases or increases in any other items specified by the
Representative, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Underwriters, except in each case for changes,
increases or decreases which the Registration Statement discloses have
occurred or may occur, or which are described in such letter.
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with U.S. generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representative which are derived
from the general accounting records and consolidated financial statements
of the Company and its Subsidiaries which appear or are incorporated by
reference in the Registration Statement specified by the Representative,
and have compared such amounts, percentages and financial information with
the accounting records and the material derived from such records and
consolidated financial statements of the Company and its Subsidiaries 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 obligations of the
Underwriters that the Representative shall have determined, after discussions
with officers of the Company and its Subsidiaries responsible for financial and
accounting matters, that such changes, decreases, increases or exceptions as are
set forth in such letters do not (x) reflect an adverse change in the items
specified in Clause (iii)(A) above as compared with the amounts shown in the
latest unaudited consolidated statement of financial condition of the Company
and its Subsidiaries included in the Registration Statement, (y) reflect an
adverse change in the items specified in Clause (iii)(B) above as compared with
the corresponding periods of the prior year or other period specified by the
Representative, or (z) reflect a material change in items specified in Clause
(iv) above from the amounts shown in the Preliminary Prospectus distributed by
the Underwriters in connection with the offering contemplated hereby or from the
amounts shown in the Prospectus.
(i) At the Closing Date and, if applicable, the Option Closing
Date, you shall have received certificates of the chief executive officer and
the chief financial and accounting officer of the Company, which certificates
shall be deemed to be made on behalf of the Company, and of the Selling
Shareholders or their authorized representatives, 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 and the Selling Shareholders, as the case may be, set
forth in Section 2 hereof are accurate as of the Closing Date and, if
applicable, the Option Closing Date, and that the Company and the Selling
Shareholders, as the case may be, 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 (and the Selling Shareholders are not aware of any)
material adverse change in the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis; (iii) since such dates there has not been
any (and the Selling Shareholders are not aware of any) material transaction
entered into by the Company or the Subsidiaries other than transactions in the
ordinary course of business; (iv) they have carefully examined the Registration
Statement and the Prospectus as amended or supplemented and all documents
incorporated therein by reference and nothing has come to their attention that
would lead them to believe that either the Registration Statement or the
Prospectus, or any amendment or supplement thereto or any document incorporated
therein by reference as of their respective effective or issue dates, contained,
and the Prospectus as amended or supplemented and any document incorporated
therein by reference at such Closing Date (and, if applicable, the Option
Closing Date), contains any untrue statement of fact, or omits to state any fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and (v) covering such other matters as you may request. The
officers' certificate of the Company shall further state that no stop order
affecting the Registration Statement is in effect or, to their knowledge,
threatened.
(j) The NASD, upon review of the terms of the public offering of
the Shares, shall not have objected to any Underwriter's participation in such
offering.
(k) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Company and the Selling Shareholders shall have furnished to
you and counsel for the Underwriters all such other documents, certificates and
opinions as they have reasonably requested.
(l) Prior to the date hereof, each Selling Shareholder and each
person identified on Schedule III hereto shall have executed and delivered to
the Underwriters an agreement, in form satisfactory to the Underwriters,
providing that such Selling Shareholder or person shall not, for a period of 180
days from the date hereof, directly or indirectly, offer for sale, sell or agree
to sell or otherwise dispose of (except for bona fide gifts) any shares of
Common Stock, or any securities convertible into, exercisable or exchangeable
for, or that are the economic or voting equivalent of, any such shares of Common
Stock without your prior written consent.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel. Any certificate signed by an
officer of the Company and delivered to you pursuant hereto shall also be deemed
to be a representation and warranty of the Company to the Underwriters as to the
statements made therein. The Company and the Selling Shareholders shall furnish
you with conformed copies of such opinions, certificates, letters and other
documents as you shall reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all
obligations of the Underwriters hereunder may be terminated by you on notice to
the Company and the Selling Shareholders at, or at any time before, the Closing
Date or the Option Closing Date, as applicable. Any such termination shall be
without liability of the Underwriters to the Company or any Selling Shareholder.
7. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each of its directors, officers and agents, and each person, if
any, who controls any Underwriter within the meaning of 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 fact made by the Company contained in Section 2(a)
of this Agreement (or any certificate delivered by the Company pursuant hereto)
or the registration statement as originally filed or the Registration Statement,
any Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, (ii) upon any blue sky application or other document executed by the
Company specifically for that purpose or based upon written information
furnished by the Company filed in any state or other jurisdiction in order to
qualify any of the Shares under the securities laws thereof (any such
application, document or information being hereinafter referred to as a "Blue
Sky Application"),
(iii) any omission or alleged omission to state a fact in the registration
statement as originally filed or the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment or supplement thereto, or in
any Blue Sky Application required to be stated therein or necessary to make the
statements therein not misleading, and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and attorneys' fees and expenses), joint or several, arising out of or based
upon any untrue statement or alleged untrue statement of fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a 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(e); andshall 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 Company shall not be liable in any such
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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 information furnished
in writing to the Company through you by or on behalf of any Underwriter
expressly for use therein beneath the heading "Underwriting;" provided, that the
--------
indemnification contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or of any of its
directors, officers or agents or any person controlling such Underwriter) to the
extent any such losses, claims, damages, liabilities or expenses directly
results from the fact that such Underwriter sold Shares 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 such 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, and provided further, that the Company shall have no liability
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under this indemnity in any such case to the extent, but only to the extent,
that such losses, claims, damages, liabilities and expenses arose out of or were
based upon any untrue statement or omission made or omitted from any Preliminary
Prospectus or Prospectus in justifiable reliance upon information with respect
to a Selling Shareholder or its or his shares furnished to the Company by such
Selling Shareholder. The foregoing indemnity agreement is in addition to any
liability the Company may otherwise have to any such indemnified party.
(b) The Selling Shareholders severally agree to indemnify and
hold harmless each Underwriter, each of its directors, officers and agents and
each person, if any, who controls any Underwriter within the meaning of the 1933
Act, against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and 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 a Selling Shareholder
contained in Section 2(b) of this Agreement (or in a certificate of such Selling
Shareholder delivered pursuant hereto) or in the registration statement as
originally filed or the Registration Statement, any Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, or (ii) any omission
or alleged omission to state a material fact in the registration statement as
originally filed or the Registration Statement, any Preliminary Prospectus, or
in any amendment or supplement thereto required to be stated therein or
necessary to make the statements therein not misleading, and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation and attorneys' fees and expenses), 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; and shall reimburse each such
indemnified party for any legal or other expenses as incurred, but in no event
less frequently than 30 days after each invoice is submitted, reasonably
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 Selling Shareholders
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shall be liable in any such case to the extent, but only to the extent, that any
such losses, claims, damages, liabilities and expenses arise out of or are based
upon any untrue statement or omission or allegation thereof that has been made
therein or omitted therefrom in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of a Selling Shareholder,
including, without limitation, the information with respect to a Selling
Shareholder beneath the heading "Selling Shareholders;
Ownership of Common Stock" and any certificate of a Selling Shareholder
delivered pursuant hereto; provided further that in no event shall the Selling
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Shareholders be liable under this paragraph for an amount exceeding the
aggregate purchase price received by the Selling Shareholders from the
Underwriters for the Shares sold by the Selling Shareholders hereunder; and
provided further that the indemnification contained in this paragraph with
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respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) to the extent any
such losses, claims, damages, liabilities or expenses directly results from the
fact that such Underwriter sold Shares 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 such 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 any Selling
Shareholder may otherwise have to any such indemnified party.
(c) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement (and each person, if any, who
controls the Company within the meaning of the 1933 Act), and the Selling
Shareholders, to the same extent as required by the foregoing indemnity from the
Company or the Selling Shareholders, as the case may be, to each Underwriter,
but only with respect to information relating to such Underwriter furnished in
writing to the Company through you by or on behalf of it expressly for use in
connection with the registration statement as originally filed, the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, beneath the heading "Underwriting" or in a Blue Sky
Application. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to any such indemnified party.
(d) 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
such indemnified party and controlling persons, such firm shall be designated in
writing by the indemnified party. Each indemnified party and each controlling
person, as a condition of such indemnity, shall use reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. The indemnifying party shall not be liable for any settlement of any
such action effected without its written consent, but if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought 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 of the indemnifying party to 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.
(e) 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 Company and the Selling
Shareholders on the one hand and the Underwriters on the other from the offering
of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Selling Shareholders on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Selling Shareholders on the one hand and the Underwriters 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
Underwriters relative to the total net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the Selling
Shareholders, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Selling Shareholders on
the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of or the omission or alleged omission to state a fact relates to information
supplied by the Company or a Selling Shareholder or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company, the Selling
Shareholders and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this paragraph (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) 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 (e) 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 (e), no Underwriter or Selling Shareholder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public, or the amount sold by such Selling
Shareholder, exceeds the amount of any damages that such Underwriter or Selling
Shareholder, as the case may be, 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 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (e), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of the 1933 Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
preceding paragraph. The Underwriters' obligations in this paragraph (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint. The obligations of the Company and the Selling
Shareholders under this paragraph (e) shall be in addition to any liability
which the Company and the Selling Shareholders may otherwise have and the
obligations of the Underwriters under this paragraph (e) shall be in addition to
any liability that the respective Underwriters may otherwise have.
(f) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company and the Selling
Shareholders set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company or any Selling Shareholder, or such directors, trustees or officers
(or any person controlling the Company or any Selling Shareholder), (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of any Underwriter or of the Company
or any Selling Shareholder, such directors, trustees or officers (or of any
person controlling any Underwriter, the Company or any Selling Shareholder)
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
8. TERMINATION. You shall have the right to terminate this
-----------
Agreement on behalf of the Underwriters at any time at or prior to the Closing
Date or, with respect to the Underwriters' obligation to purchase the Option
Shares, at any time at or prior to the Option Closing Date, without liability on
the part of any Underwriter to the Company or a Selling Shareholder, if:
(a) the Company or a Selling Shareholder 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 Company or any of the Subsidiaries shall have sustained
any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree which in the judgment of the
Representative impairs the investment quality of the Shares;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
adverse change in, or any development which is likely to have an adverse effect
on, the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries on a
consolidated basis, whether or not arising in the ordinary course of business;
(d) There has occurred any outbreak of hostilities or other
calamity or crisis or change in general economic, political or financial
conditions, or internal conditions, the effect of which on the financial markets
of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Shares or enforce contracts for the sale of the
Shares;
(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;
(f) A banking moratorium shall have been declared by either
federal or Oklahoma authorities; or
(g) Any action shall have been taken by any government in respect
of its monetary affairs which, in your reasonable judgment, has an adverse
effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8, the
Company and the Selling Shareholders shall not then be under any liability to
any Underwriter except as provided in Sections 5 and 7 hereof.
9. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
-----------------------
shall default in its or their obligations to purchase Shares hereunder, the
other Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
-------- -------
that the non-defaulting Underwriters shall be under no obligation to purchase
such Shares if the aggregate number of Shares to be purchased by such non-
defaulting Underwriters shall exceed 110% of the aggregate underwriting
commitments set forth in Schedule I hereto, and provided further, that no non-
---------- ----------------
defaulting Underwriter shall be obligated to purchase Shares to the extent that
the number of such Shares is more than 110% of such Underwriter's underwriting
commitment set forth in Schedule I hereto.
----------
In the event that the non-defaulting Underwriters are not obligated
under the above paragraph to purchase the Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase, the Representative
may in its discretion arrange for one or more of the Underwriters or for another
party or parties to purchase such Shares on the terms contained herein. If
within one business day after such default the Representative does not arrange
for the purchase of such Shares, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representative to purchase such Shares on such terms.
In the event that the Representatives or the Company do not arrange
for the purchase of any Shares to which a default relates as provided above,
this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Shares of a defaulting
Underwriter or Underwriters as provided in this Section 9, (i) you shall have
the right to postpone the Closing Date for a period of not more than five full
business days, in order to effect any changes that, in the opinion of counsel to
the Underwriters or the Company, may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
agreements, and the Company agrees promptly to file any amendments to the
Registration Statement or supplements to the Prospectus which, in its opinion,
may thereby be made necessary and (ii) the respective numbers of Shares to be
purchased by the remaining Underwriters or substituted underwriters shall be
taken as the basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
any liability it may have for damages occasioned by its default hereunder. Any
termination of this Agreement pursuant to this Section 9 shall be without
liability on the part of any non-defaulting Underwriter, the Company or any
Selling Shareholder, except for expenses to be paid or reimbursed pursuant to
Section 5 and except for the provisions of Section 7.
10. EFFECTIVE DATE OF AGREEMENT. If the Registration Statement is
---------------------------
not effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Representative 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 Representative shall
release the Shares for public offering. The Representative shall notify the
Company and Selling Shareholders 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 Company, by notifying you and the Selling Shareholders, or
by you, as Representative of the Underwriters, by notifying the Company and the
Selling Shareholders, except that the provisions of Sections 5 and 7 shall at
all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
--------------------------------------------------------------
The representations, warranties, indemnities, agreements and other statements of
the Company and its officers and the Selling Shareholders set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Company or any Selling
Shareholder or controlling persons of the Company or any Selling Shareholder, or
by or on behalf of the Underwriters or controlling persons of any Underwriters
or any termination or cancellation of this Agreement and shall survive delivery
of and payment for the Shares.
12. NOTICES. Except as otherwise provided in this Agreement, all
-------
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by registered or
certified mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to the Company shall be sent to 000
Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. XxXxxxxxx,
Xx. (with a copy to Xxxxxxx, Xxxxx & Xxxxx, L.L.P., 0000 Xxxxxxx Xxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxx III, Esq.); notices to
a Selling Shareholder shall be sent to the address set forth for such Selling
Shareholder on Schedule II (with a copy to [____________________,
_________________, ______________, ____________, ATTENTION: ________________,
ESQ., AND _____________________]); and notices to the Underwriters 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, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Xxxxxxxxx X. Xxxxxxxx, Esq.).
13. PARTIES. The Agreement herein set forth is made solely for the
-------
benefit of the Underwriters, the Company and the Selling Shareholders and, to
the extent expressed, directors and officers of the Company, any person
controlling the Company, any Selling Shareholder or any 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 his status as such purchaser, from any
Underwriter of the Shares.
14. GOVERNING LAW. This Agreement shall be governed by the laws of
-------------
the State of Missouri, without giving effect to the choice of law or conflicts
of law principles thereof.
15. 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.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement among the Company, the Selling Shareholders and
you in accordance with its terms.
Very truly yours,
SOUTHWEST BANCORP, INC.
By:________________________________
Name:
Title:
SELLING SHAREHOLDERS:
By:________________________________
Name:
Attorney-in-Fact for each of the
Selling Shareholders named in
Schedule II hereto
CONFIRMED AND ACCEPTED,
as of the date first above written.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:_____________________________________
Name:
Title:
For itself and as Representative
of the Underwriters named in
Schedule I hereto.
SCHEDULE I
Number of Firm
Shares to be
Name of Underwriters Purchased
-------------------- --------------
Xxxxxx, Xxxxxxxx & Company, Incorporated
Xxxx Xxxxxxxx Xxxxxxx
a division of Xxxx Xxxxxxxx Incorporated
Total 1,060,997
=========
SCHEDULE II
Name and Address of Number of Firm
Selling Shareholder Shares To Be Sold
------------------- -----------------
Estate of Xxxx X. Xxxx 696,311
c/o Xxxx X. Xxxxxx, Esquire
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Xx. Xxxxx X. Xxxx 114,686
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Total 810,997
=======
SCHEDULE III
