EXHIBIT 1.0
Underwriting Agreement
ii
UNDERWRITING AGREEMENT
Dated as of ________ __, 19__
TABLE OF CONTENTS
SECTION 1. Representations and Warranties....................................2
(a) Representations and Warranties by the Company.............2
(i) Compliance with Registration Requirements........2
(ii) Incorporated Documents...........................3
(iii) Independent Accountants..........................3
(iv) Financial Statements.............................3
(v) No Material Adverse Change in Business...........4
(vi) Good Standing of the Company.....................4
(vii) Good Standing of Subsidiaries....................4
(viii) Capitalization...................................5
(ix) Authorization of Agreement.......................5
(x) Authorization and Description of Securities......5
(xi) Absence of Defaults and Conflicts................5
(xii) Absence of Labor Dispute.........................6
(xiii) Absence of Proceedings...........................6
(xiv) Exhibits.........................................6
(xv) Absence of Further Requirements..................6
(xvi) Possession of Licenses and Permits...............7
(xvii) Title to Property................................7
(xviii) Environmental Laws...............................8
(ix) Not an Investment Company........................8
(b) Officer's Certificates....................................8
SECTION 2. Sale and Delivery to Underwriters; Closing........................8
(a) Securities................................................8
(b) Payment...................................................8
(c) Denominations; Registration...............................9
SECTION 3. Covenants of the Company..........................................9
(a) Compliance with Securities Regulations and
Commission Requests.......................................9
(b) Filing of Amendments......................................9
(c) Delivery of Registration Statements......................10
(d) Delivery of Prospectuses.................................10
iii
(e) Continued Compliance with Securities Laws................10
(f) Blue Sky Qualifications..................................10
(g) Rule 158 11
(h) Restriction on Sale of Securities........................11
(i) Reporting Requirements...................................11
SECTION 4. Payment of Expenses..............................................11
(a) Expenses 11
(b) Termination of Agreement.................................12
SECTION 5. Conditions of Underwriters' Obligations..........................12
(a) Effectiveness of Registration Statement..................12
(b) Opinion of Counsel for Company...........................12
(c) Opinion of Counsel for Underwriters......................12
(d) Officers' Certificate....................................12
(e) Accountant's Comfort Letter..............................13
(f) Bring-down Comfort Letter................................13
(g) No Objection.............................................13
(h) Additional Documents.....................................13
(j) Termination of Agreement.................................13
SECTION 6. Indemnification 14
(a) Indemnification by the Company...........................14
(b) Indemnification by the Underwriters......................15
(c) Actions against Parties; Notification....................15
SECTION 7. Contribution.....................................................16
SECTION 8. Representations, Warranties and Agreements to Survive Delivery...17
SECTION 9. Termination of Agreement.........................................17
(a) Termination; General.....................................17
(b) Liabilities..............................................18
SECTION 10. Default by One or More of the Underwriters...............18
SECTION 11. Default by the Company...................................18
SECTION 12. Notices..................................................18
SECTION 13. Parties..................................................19
iv
SECTION 14. Governing Law and Time...................................19
SECTION 15. Effect of Headings.......................................19
1
UNDERWRITING AGREEMENT
______________, 199_
[NAME]
as Representative of the several Underwriters
[ADDRESS]
Ladies and Gentlemen:
BOK Financial Corporation, an Oklahoma corporation (the "Company"),
confirms its agreement with [Name]("[Name]") and each of the other Underwriters
named in Schedule A hereto (collectively, the "Underwriters," which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom [Name] is acting as representative (in such capacity, the
"Representative"), with respect to the purchase by the Underwriters, acting
severally and not jointly, of $______ principal amount of the [Title of Senior
Debt Securities] (the "Securities") of the Company, to be issued pursuant to the
provisions of an Indenture, dated as of ______________, 199_ (the "Indenture"),
between the Company and ____________, as Trustee (the "Trustee").
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-_________) covering
the registration of Senior Debt Securities of the Company, including the
Securities, from time to time in accordance with Rule 415 under the Securities
Act of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus."
2
Such registration statement, including the exhibits thereto, schedules thereto,
if any, and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, at the time it became effective and including
the Rule 430A Information and the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities, is
herein called the "Prospectus." If Rule 434 is relied on, the term "Prospectus"
shall refer to the preliminary prospectus dated ___, 199_ together with the Term
Sheet, and all references in this Agreement to the date of the Prospectus shall
mean the date of the Term Sheet.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933
Act; no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated
by the Commission and any request on the part of the
Commission for additional information has been complied with.
3
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time,
the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or
supplement was filed and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or
will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule
434. The representations and warranties in this subsection
shall not apply to (i) statements in or omissions from the
Registration Statement, any post- effective amendment to the
Registration Statement, the Prospectus or any amendment or
supplement to the Prospectus made in reliance upon and in
conformity with information furnished to the Company in
writing by any Underwriter through [Name] expressly for use in
the Registration Statement, the Prospectus or any such
amendment or supplement or (ii) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") of the Trustee.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects
with the 1933 Act and the 1933 Act Regulations.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time, did not and
will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
such statements were made, not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in
the Registration Statement are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
4
(iv) Financial Statements. The consolidated statements of
financial condition, consolidated statements of income,
consolidated statements of changes in stockholders' equity and
consolidated statements of cash flows included in the
Registration Statement and the Prospectus, together with the
related schedules and notes (the "Financial Statements"),
present fairly in all material respects the consolidated
financial position, results of operations, changes in
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries at the dates indicated and, for the
periods specified, as the case may be, subject in the case of
unaudited balance sheets and statements to normal year-end
audit adjustments; said Financial Statements have been
prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout
the periods involved, except as may be noted therein, subject
in the case of unaudited balance sheets and statements to
normal year-end audit adjustments and the limited scope of the
notes thereto.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change,
or development involving a prospective material adverse
change, in the financial condition, results of operation or
stockholders' equity of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or
any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and
(C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its
capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its
properties and to conduct its business in all material
respects as described in the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company
is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
5
(vii) Good Standing of Subsidiaries. The Bank of Oklahoma,
National Association, Bank of Texas, National Association, and
Bank of Arkansas, National Association (the "Banks") have been
duly organized and are validly existing as national banking
associations; the Banks' deposit accounts are insured up to
applicable limits by the Federal Deposit Insurance
Corporation; and no proceeding for the termination or
revocation of such insurance is pending or, to the knowledge
of the Company or the Banks, threatened. The Banks and BOSC,
Inc. are the only "significant subsidiaries" of the Company
(as such term is defined in Rule 1-02 of Regulation S-X) and
each has power and authority to own, lease and operate its
properties and to conduct its business in all material
respects as described in the Prospectus and is duly qualified
to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of
the Bank has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly
or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of the
Bank was issued in violation of the preemptive or similar
rights of any security holder of such Subsidiary.
(viii) Capitalization. The Company had at the date indicated a
duly authorized and outstanding capitalization as set forth in
the Registration Statement.
(ix) Authorization of Agreement and Indenture. This Agreement
has been duly authorized, executed and delivered by the
Company. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles
of equity.
(x) Authorization and Description of Securities. The
Securities have been duly authorized and, when issued and
authenticated in accordance with the provisions of the
Indenture and delivered against payment therefor as provided
herein, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity.
The Securities conform to the description thereof under the
heading "Description of Senior Debt Securities" contained in
the Prospectus and such description, insofar as it purports to
be a summary of the instruments defining the rights of holders
of the Securities, is accurate, complete and fair in all
material respects.
6
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement
and the Indenture and the consummation of the transactions
contemplated herein, in the Indenture and in the Registration
Statement (including the issuance and sale of the Securities)
and compliance by the Company with its obligations hereunder
and under the Indenture have been duly authorized by all
necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, default or
Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government,
governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any
of their assets or properties. As used herein, a "Repayment
Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not
aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in
either case, may reasonably be expected to result in a
Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any subsidiary, which is
required to be disclosed in the Registration Statement (other
than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect (other than as
disclosed in the Registration Statement), or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof (other than as disclosed in the
Registration Statement) or the consummation of the
transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder.
(xiv) Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein,
or to be filed as exhibits thereto, which have not been so
described or filed as required.
7
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order,
registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for
the performance by the Company of its obligations hereunder,
in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws.
(xvi) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity
of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xvii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property reflected
in the most recent balance sheet included in the Prospectus as
owned by the Company and its subsidiaries and good title to
all other properties reflected in the most recent balance
sheet included in the Prospectus as owned by them, in each
case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of
any kind except such as (a) are described in the Prospectus or
(b) do not, singly or in the aggregate, materially interfere
with the use made and proposed to be made of such property by
the Company or any of its subsidiaries or, with respect to any
such real property, render title unmarketable as to a material
part thereof; and all of the leases and subleases material to
the business of the Company and its subsidiaries, considered
as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are
in full force and effect, and neither the Company nor any
subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
8
(xiii) Environmental Laws. Except as described in the
Registration Statement or except as would not, singly or in
the aggregate, result in a Material Adverse Effect: (A)
neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or
protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B)
the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any
of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the
basis of an order for clean-up or redemption, or an action,
suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(ix) Not an Investment Company. The Company is not an
"investment company" or a company "controlled by" an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriters as to the matters covered thereby, without
personal liability for the officer signing such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the principal amount of Securities set forth
in Schedule A opposite the name of the Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
9
(b) Payment. Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company against
delivery by the Company to the Representative for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. The
time and date of such payment and delivery shall be 10:00 A.M. (Eastern time) on
the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any
given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Representative and
the Company (such time and date of payment and delivery being herein called the
"Closing Time"). It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities that it has agreed to
purchase. [Name], individually and not as representative of the Underwriters,
may (but shall not be obligated to) make payment of the purchase price for the
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities shall
be in such denominations and registered in such names as the Representative may
request in writing at least one full business day before the Closing Time. The
certificates for the Securities will be made available for examination and
packaging by the Representative in The City of [New York] not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representative promptly, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
10
(b) Filing of Amendments. The Company will give the Representative
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representative with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representative or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representative, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations to the extent necessary to permit the completion of the distribution
of the Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of the
Underwriters or the Company, based upon advice of counsel, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or if it shall be necessary, in the opinion of such
party, based upon the advice of counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
11
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Representative may designate and to maintain such qualifications in
effect for as long as may be necessary to complete the distribution of
Securities provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) Restriction on Sale of Securities. During a period beginning on the
date hereof and continuing to and including the Closing Time, the Company will
not, without the prior written consent of [Name], directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any Senior Debt Securities
substantially similar to the Securities, except that the foregoing sentence
shall not apply to (A) the Securities to be sold hereunder and (B) commercial
paper issued in the ordinary course of business.
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations and the Company will cause the Bank to file all documents required
to be filed with any supervisory, regulatory, administrative or governmental
agency, body or authority, whether pursuant to the 1934 Act and the 1934 Act
Regulations or otherwise (except reports to any bank or thrift regulatory
agencies prepared on a confidential basis), except when the failure to file such
documents could not reasonably be expected to result, directly or indirectly, in
a Material Adverse Effect.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company covenants and agrees with the several
Underwriters that (a) the Company will pay the following expenses incident to
this Agreement: (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, (iv) the
fees and disbursements of the Company's counsel, accountants and other advisors,
(v) the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the fees and expenses of any transfer agent or
registrar for the Securities, (viii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities and (ix)
any fees payable in connection with the rating of the Securities.
12
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company shall reimburse the Underwriters for all of
their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy, as of the
Closing Time, of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder to
be performed at or prior to the Closing Time, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representative
shall have received the favorable opinion, dated as of Closing Time, of Frederic
Dorwart, Lawyers, General Counsel for the Company, in each instance in form and
substance reasonably satisfactory to counsel for the Underwriters, collectively
to the effect set forth in Exhibit A hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of [Name], counsel for the Underwriters, with respect to such matters as
they may reasonably request. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States, and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representative. Such counsel may also 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 and its subsidiaries and
certificates of public officials.
13
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change, or development involving a
prospective material adverse change, in the financial condition, results of
operations or stockholders' equity of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representative shall have received a certificate signed by the
President or a Vice President of the Company and by the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representative
shall have received from Ernst and Young LLP a letter, dated as of Closing Time,
to the effect that it reaffirms the statements made in the letter furnished
pursuant to subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(g) No Objection. The NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(h) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance to
the Representative and counsel for the Underwriters.
(j) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4, and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
14
SECTION 6. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act to the extent and in the manner as set forth below:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such
settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
[Name]), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid
under (i) or (ii) above; provided, however, that this
indemnity agreement shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter
through [Name], expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or
any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto); and provided further that the
foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom
the person asserting any such loss, liability, claim or damage
15
purchased Securities if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented by the Company if the Company shall
have furnished any amendments or supplements thereto) and a
copy of the Prospectus (as so amended or supplemented), which
at such time had been provided to the Underwriters for their
use, shall not have been furnished to such person at or prior
to the written confirmation of sale of such Securities to such
person.
(b) Indemnification by the Underwriters. Each Underwriter severally
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, and the Company, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through [Name] expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by [Name], and in the case
of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
16
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party (other than pursuant to the terms thereof) in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
17
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of the Securities to
the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change, or development involving a prospective material adverse
change, in the financial condition, results of operations or stockholders'
equity of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
material change or development involving a prospective material change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the NASDAQ National Market has been suspended or limited,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv)
if a banking moratorium has been declared by either Federal or New York
authorities.
18
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6 and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then: (a) if the number of
Defaulted Securities does not exceed 10% of the number of Securities to be
purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or (b) if the
number of Defaulted Securities exceeds 10% of the number of Securities to be
purchased on such date, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Company shall have the right
to postpone Closing Time, for a period not exceeding seven days, in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Default by the Company. If the Company shall make such
delivery but the Company shall fail to deliver the Securities to the
Representative, then the Underwriters may, at the option of the Representative,
by notice from the Representative to the Company, terminate this Agreement
without any liability on the fault of any non-defaulting party except that the
provisions of Sections 1, 4, 6 and 7 shall remain in full force and effect. No
action taken pursuant to this Section 11 shall relieve the defaulting party from
liability, if any, in respect of such default.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at ____________________,
attention of ___________________; notices to the Company shall be directed to
Chief Financial Officer, Bank of Oklahoma, National Association, P.O. Box 2300,
Tulsa, Oklahoma 74192 and Frederic Dorwart, Lawyers, Old City Hall, 124 East
Fourth Street, Tulsa, Oklahoma 74103-5010.
19
SECTION 13. Parties. This Agreement shall inure to the benefit of and
be binding upon each of the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO OKLAHOMA TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company [ ] counterparts hereof,
whereupon this agreement, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
BOK FINANCIAL CORPORATION
By __________________________________________
Name:
Title:
20
CONFIRMED AND ACCEPTED, as of the date first above written:
[NAME]
By _______________________ Authorized Signatory
For itself and as Representative of the other Underwriters named in
Schedule A hereto.
21
EXHIBIT A
OPINION OF THE COMPANY'S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
The opinions of special counsel for the Company referred to in Section
5(b) collectively shall be substantially to the following effect:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Oklahoma. The Company has the requisite corporate power and
authority to conduct its business in all material respects as
described in the Prospectus.
(ii) The Securities have been duly authorized and validly issued
and are fully paid and nonassessable.
(iii) The statements set forth under the heading "Description of
Senior Debt Securities" in the Prospectus, insofar as such
statements purport to be a summary of the instruments defining
the rights of holders of the Securities is accurate, complete
and fair in all material respects.
(iv) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the
Federal laws of the United States, the laws of the State of
Oklahoma and the General Corporation Law of the State of
Oklahoma for the issuance, sale and delivery of the Securities
by the Company have been obtained or made.
(v) The issuance of the Securities by the Company hereunder does
not (a) violate the Company's certificate of incorporation or
by-laws, (b) result in a default under or breach of the
agreements listed in Annex A to this opinion or (c) violate
any Federal law of the United States or law of the State of
Oklahoma applicable to the Company; provided, however, that,
for purposes of this paragraph (vi), such counsel need not
express an opinion with respect to Federal or state securities
laws, other antifraud laws or fraudulent transfer laws.
(vi) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company. The Indenture has been duly
qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in
accordance with its term, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
22
In addition, such counsel shall state that they have reviewed the
Registration Statement and the Prospectus, participated in discussions with the
Representative and the representatives of the Company and its accountants and
that, on the basis of the information gained in such discussions, the
Registration Statement, as of the date it became effective, and the Prospectus,
as of the date of the Prospectus, appeared on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act and the
1933 Act Regulations. Further, such counsel shall confirm that nothing that came
to their attention in the course of the aforementioned review has caused them to
believe that the Registration Statement, as of the date it became effective,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date of the Prospectus
and as of the Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
are such, however, that such counsel shall not be required to assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those made
under the captions "Description of Senior Debt Securities" and "Underwriting" in
the Prospectus insofar as they relate to provisions of documents therein
described. Also, such counsel need not express any opinion or belief as to the
financial statements or other financial data contained in the Registration
Statement of the Prospectus.