1,800,000 Preferred Securities
S.Y. Bancorp Capital Trust I
___% Cumulative Trust Preferred Securities
(Liquidation Amount of $10 per Preferred Security)
UNDERWRITING AGREEMENT
___________, 2001
STIFEL, NICOLAUS & COMPANY, INCORPORATED
One Financial Plaza
501 North Broadway, 9th Floor
St. Louis, Missouri 63102
J.J.B. HILLIARD, W.L. LYONS, INC.
2200 West Henderson Road, 18th Floor
Columbus, Ohio 43220
As Representatives of the several Underwriters
named in Schedule I hereto
Dear Sirs:
S.Y. Bancorp, Inc., a Kentucky corporation (the "Company"), and its
financing subsidiary, S.Y. Bancorp Capital Trust I, a Delaware business trust
(the "Trust," and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell to the several underwriters listed on
Schedule I hereto (the "Underwriters"), pursuant to the terms of this Agreement,
1,800,000 of the Trust's ___% Cumulative Trust Preferred Securities, with a
liquidation amount of $10.00 per preferred security (the "Preferred
Securities"), to be issued under the Trust Agreement (as hereinafter defined),
the terms of which are more fully described in the Prospectus (as hereinafter
defined). The aforementioned 1,800,000 Preferred Securities to be sold to the
Underwriters are herein called the "Firm Preferred Securities". Solely for the
purpose of covering over-allotments in the sale of the Firm Preferred
Securities, the Offerors further propose that the Trust issue and sell to the
Underwriters, at their option, up to an additional 200,000 Preferred Securities
(the "Option Preferred Securities") upon exercise of the over-allotment option
granted in Section 1 hereof. The Firm Preferred Securities and any Option
Preferred Securities are herein collectively referred to as the "Designated
Preferred Securities". Stifel, Nicolaus & Company, Incorporated and J.J.B.
Hilliard, W.L. Lyons, Inc., are acting jointly as representatives of the
Underwriters and in such capacity are sometimes herein referred to as the
"Representatives."
The Offerors hereby confirm as follows their agreement with each of
the Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
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1. Sale, Purchase and Delivery of Designated Preferred Securities;
Description of Designated Preferred Securities.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $10.00 per share (the "Purchase
Price"), the respective number of Firm Preferred Securities set forth opposite
the name of such Underwriter in Schedule I hereto. Because the proceeds from the
sale of the Firm Preferred Securities will be used to purchase from the Company
its Debentures (as hereinafter defined and as described in the Prospectus), the
Company shall pay to each Underwriter a commission of $______ per Firm Preferred
Security purchased (the "Firm Preferred Securities Commission"). The
Representatives may by notice to the Company amend Schedule I to add, eliminate
or substitute names set forth therein (other than to eliminate the name of the
Representatives) and to amend the number of Firm Preferred Securities to be
purchased by any firm or corporation listed thereon, provided that the total
number of Firm Preferred Securities listed on Schedule I shall equal 1,800,000.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 200,000 Option Preferred
Securities, and upon the exercise of such option in accordance with this Section
1, the Offerors hereby agree that the Trust shall issue and sell to the
Underwriters, severally and not jointly, all or any portion of the Option
Preferred Securities at the same Purchase Price per share paid for the Firm
Preferred Securities. If any Option Preferred Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Trust
that proportion (subject to adjustment as the Representatives may determine to
avoid fractional shares) of the number of Option Preferred Securities to be
purchased that the number of Firm Preferred Securities 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 1,800,000. Because the proceeds from the
sale of the Option Preferred Securities will be used to purchase from the
Company its Debentures, the Company shall pay to the Underwriters a commission
of $______ per Option Preferred Security for each Option Preferred Security
purchased (the "Option Preferred Securities Commission"). The option hereby
granted (the "Option") shall expire thirty (30) days after the Effective Date
(as defined herein) and may be exercised only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Firm Preferred Securities. The Option may be exercised in
whole or in part at any time (but not more than once) by you giving notice
(confirmed in writing) to the Company and the Trust setting forth the number of
Option Preferred Securities as to which the Underwriters are exercising the
Option and the time, date and place for payment and delivery of certificates for
such Option Preferred Securities. Such time and date of payment and delivery for
the Option Preferred Securities (the "Option Closing Date") shall be determined
by 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.
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Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of certificates for the Firm Preferred Securities shall
be made at the offices of Stifel, Nicolaus & Company, Incorporated, One
Financial Plaza, 501 North Broadway, Ninth Floor, St. Louis, Missouri 63102, or
such other place as shall be agreed to by you and the Offerors, at 10:00 a.m.,
St. Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the 1934
Act, not later than 12:00 p.m. on the fourth) full business day following the
date of this Agreement (the "Closing Date"), or unless postponed in accordance
with the provisions of Section 9. If the Underwriters exercise the Option to
purchase any or all of the Option Preferred Securities, payment of the Purchase
Price and Option Preferred Securities Commission and delivery of certificates
for such Option Preferred Securities shall be made on the Option Closing Date at
the offices of counsel for the Offerors, or at such other place as the Offerors
and you shall determine. Such payments shall be made to an account designated by
the Trust by wire transfer of same-day funds, in the amount of the Purchase
Price therefor, against delivery by or on behalf of the Trust to you for the
respective accounts of the several Underwriters of certificates for the
Designated Preferred Securities to be purchased by the Underwriters. Delivery of
the Designated Preferred Securities may be made by credit through full FAST
transfer to the accounts at The Depository Trust Company ("DTC") designated by
the Representatives. The Designated Preferred Securities shall be represented in
the form of one or more fully registered global notes in book-entry form
registered in the name of the nominee of DTC.
Time shall be of the essence, and delivery of the certificates for
the Designated Preferred Securities at the time and place specified pursuant to
this Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Property Trustee and Delaware Trustee, the
Administrative Trustees named therein, (collectively, the "Trustees"), and the
Company, in substantially the form heretofore delivered to the Underwriters,
said Agreement being hereinafter referred to as the "Trust Agreement". In
connection with the issuance of the Designated Preferred Securities, the Company
proposes (i) to issue its ______% Subordinated Debentures due 2031 (the
"Debentures") pursuant to an Indenture, to be dated as of ________, 2001,
between the Company and Wilmington Trust Company, as indenture trustee (the
"Indenture") and (ii) to guarantee certain payments on the Designated Preferred
Securities pursuant to a Guarantee Agreement, to be dated as of ____________
___, 2001, between the Company and Wilmington Trust Company, as guarantee
trustee (the "Guarantee"), to the extent described therein.
2. Representations and Warranties. The Offerors jointly and severally
represent and warrant to, and agree with, each of the Underwriters that:
(a) The reports filed with the Securities and Exchange Commission
(the "Commission") by the Company under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and the rules and regulations thereunder (the "1934
Act Regulations") at the time they were filed with the Commission, complied as
to form in all material respects with the requirements of the 1934 Act and the
1934 Act Regulations and did not contain an untrue
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statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) The Offerors have prepared and filed with the Commission a
registration statement on Form S-3 (File Numbers 333-_______ and 333-_______-01)
for the registration of the Designated Preferred Securities, the Guarantee and
$20,618,750 aggregate principal amount of Debentures under the Securities Act of
1933, as amended (the "1933 Act"), including the related prospectus subject to
completion, and one or more amendments to such registration statement may have
been so filed, in each case in conformity in all material respects with the
requirements of the 1933 Act, the rules and regulations promulgated thereunder
(the "1933 Act Regulations") and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations thereunder. Copies of
such registration statement, including any amendments thereto and any documents
incorporated by reference therein, each Preliminary Prospectus (as defined
herein) contained therein and the exhibits, financial statements and schedules
to such registration statement, as finally amended and revised, have heretofore
been delivered by the Offerors to the Representatives. After the execution of
this Agreement, the Offerors will file with the Commission (A) if such
registration statement, as it may have been amended, has been declared by the
Commission to be effective under the 1933 Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A of the 1933 Act Regulations
("Rule 430A") or permitted by Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)") and as have been provided to and not objected to by the Representatives
prior to (or as are agreed to by the Representatives 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 Representatives prior to (or is agreed to by the Representatives
subsequent to) the execution of this Agreement. As used in this Agreement, the
term "Registration Statement" means such registration statement, as amended at
the time when it was or is declared effective under the 1933 Act, including (1)
all financial schedules and exhibits thereto, (2) all documents (or portions
thereof) incorporated by reference therein filed under the 1934 Act, and (3) any
information omitted therefrom pursuant to Rule 430A and included in the
Prospectus (as hereinafter defined); the term "Preliminary Prospectus" means
each prospectus subject to completion filed with such registration statement or
any amendment thereto including all documents (or portions thereof) incorporated
by reference therein under the 1934 Act (including the prospectus subject to
completion, if any, included in the Registration Statement and each prospectus
filed pursuant to Rule 424(a) under the 1933 Act); and the term "Prospectus"
means the prospectus first filed with the Commission pursuant to Rule 424(b)(1)
or (4) or, if no prospectus is required to be filed pursuant to Rule 424(b)(1)
or (4), the prospectus included in the Registration Statement, in each case
including the financial schedules and all documents (or portions thereof)
incorporated by reference therein under the 1934 Act. The date on which the
Registration Statement becomes effective is hereinafter referred to as the
"Effective Date."
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(c) The documents incorporated by reference in the Preliminary
Prospectus or Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the Commission, as the
case may be, complied in all material respects with the requirements of the 1934
Act and the 1934 Act Regulations, and when read together and with the other
information in the Preliminary Prospectus or Prospectus, as the case may be, at
the time the Registration Statement became or becomes effective and at the
Closing Date and any Option Closing Date, did not or will not, as the case may
be, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading. As
of the date that each Preliminary Prospectus was filed with the Commission or as
of the date that the Prospectus and any amendment or supplement thereto was
filed with the Commission (or, if not filed, on the date provided by the
Offerors to the Underwriters in connection with the offering and sale of the
Preferred Securities), as the case may be, no event has or will have occurred
which should have been set forth in an amendment or supplement to any of the
documents incorporated by reference in the Preliminary Prospectus or Prospectus
which has not then been set forth in such an amendment or supplement.
(d) No order preventing or suspending the use of any Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus)
has been issued by the Commission, nor has the Commission, to the knowledge of
the Offerors, threatened to issue such an order or instituted proceedings for
that purpose. Each Preliminary Prospectus, at the time of filing thereof, (A)
complied in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and (B) did not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty does not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing to the
Offerors by any of the Underwriters expressly for inclusion in the Prospectus
beneath the heading "Underwriting" and the last sentence on the cover page of
the Prospectus (such information referred to herein as the "Underwriters'
Information"). As of the date that each Preliminary Prospectus was filed with
the Commission or as of the date that the Prospectus and any amendment or
supplement thereto was filed with the Commission (or, if not filed, on the date
provided by the Offerors to the Underwriters in connection with the offering and
sale of the Preferred Securities), as the case may be, no event has or will have
occurred which should have been set forth in an amendment or supplement to the
Preliminary Prospectus or Prospectus which has not then been set forth in the
Preliminary Prospectus, Prospectus or such an amendment or supplement. Each
Preliminary Prospectus and the Prospectus will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval ("EDGAR") system, except
to the extent permitted by Regulation S-T.
(e) The Registration Statement has been declared effective under the
1933 Act, and no post-effective amendment to the Registration Statement has been
filed with the Commission as of the date of this Agreement. No stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or, to the Company's
knowledge, threatened by the Commission. At the Effective Date and at all
5
times subsequent thereto, up to and including the Closing Date and, if
applicable, the Option Closing Date, the Registration Statement and any
post-effective amendment thereto (A) complied and will comply in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder) and (B) did not
and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, not misleading. At the Effective Date and at all times when the
Prospectus is required to be delivered in connection with offers and sales of
Designated Preferred Securities, including, without limitation, the Closing Date
and, if applicable, the Option Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act (and the rules and regulations thereunder) and (B) did not contain
and will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty does not
apply to Underwriters' Information. As of the date that the Registration
Statement was filed with the Commission, no event has or will have occurred
which should have been set forth in an amendment or supplement to the
Registration Statement which has not then been set forth in the Registration
Statement or such an amendment or supplement. The Registration Statement will be
identical to the electronically transmitted copy thereof filed with the
Commission pursuant to its EDGAR system, except to the extent permitted by
Regulation S-T.
(f) (i) The Company is duly organized, validly existing and in good
standing under the laws of the Commonwealth of Kentucky, 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").
(ii) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the Delaware
Business Trust Act with the power and authority (trust and other) to own
its property and conduct its business as described in the Registration
Statement and Prospectus, to issue and sell its common securities (the
"Common Securities") to the Company pursuant to the Trust Agreement, to
issue and sell the Designated Preferred Securities, to enter into and
perform its obligations under this Agreement and to consummate the
transactions herein contemplated; the Trust has no subsidiaries and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of its
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Trust; the Trust has conducted and will
conduct no business other than the transactions contemplated by this
Agreement, the Trust Agreement and described in the Prospectus; the Trust
is not a party to or bound by any agreement or instrument other than this
Agreement, the Trust Agreement and the agreements and instruments
contemplated by
6
the Trust Agreement and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Trust Agreement and
described in the Prospectus; the Trust is not a party to or subject to any
action, suit or proceeding of any nature; the Trust is, and at the Closing
Date or any Option Closing Date will be, classified as a grantor trust for
United States federal income tax purposes; the Trust is not, and at the
Closing Date or any Option Closing Date will not be, to the knowledge of
the Offerors, classified as an association taxable as a corporation for
United States federal income tax purposes; and the Trust is, and as of the
Closing Date or any Option Closing Date will be, treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles.
(g) The Company has two (2) direct or indirect subsidiaries. They
are listed on Exhibit A attached hereto and incorporated herein (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 that conducts material ongoing operations other than the
Subsidiaries. Each Subsidiary is a state bank, trust company, limited liability
company or corporation duly organized or incorporated (as applicable), validly
existing and in active status or good standing, as applicable, with all
applicable Regulators (as defined below) and under the laws of its respective
jurisdiction of organization or incorporation. Each such Subsidiary has full
corporate and other power and authority to own, lease and operate its properties
and to conduct its business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and as currently being conducted. The
deposit accounts of Stock Yards Bank & Trust Company (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; and no
proceedings for the modification, termination or revocation of any such
insurance are pending or, to the knowledge of the Offerors, threatened.
(h) The Company and each of the Subsidiaries is duly qualified or
authorized to transact business as a foreign corporation or limited liability
company, as applicable, and is in active status or good standing, as applicable,
in each other jurisdiction in which it owns or leases property or conducts its
business so as to require such qualification or authorization and in which the
failure to be so qualified or authorized would, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), earnings, business, affairs, 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 or member interests, as applicable, 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 1831o or under applicable state banking law, and (C)
except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), are directly or indirectly
owned by the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, restriction upon voting or transfer, preemptive rights,
claim, equity or other defect.
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(i) The capital stock of the Company and the equity securities of
the Trust conform to the description thereof contained in the Registration
Statement and Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized and validly issued
and are fully paid and nonassessable, and no such shares were issued in
violation of the preemptive or similar rights of any security holder of an
Offeror; no person has any preemptive or similar right to purchase any shares of
capital stock or equity securities of the Offerors. Except as disclosed in the
Registration Statement and Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no outstanding
rights, options or warrants to acquire any securities of the Offerors or the
Subsidiaries, and there are no outstanding securities convertible into or
exchangeable for any securities of the Offerors or the Subsidiaries and no
restrictions upon the voting or transfer of any capital stock of the Company or
equity securities of the Trust pursuant to the Company's corporate charter or
bylaws, the Trust Agreement or any agreement or other instrument to which an
Offeror is a party or by which an Offeror is bound. As of the date set forth
therein, the Company has an authorized and outstanding capitalization as set
forth in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus).
(j) (i) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in accordance
with and upon the terms and conditions set forth in this Agreement, the
Trust Agreement, the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
All corporate and trust action required to be taken by the Offerors for
the authorization, issuance, sale and delivery of the Designated Preferred
Securities in accordance with such terms and conditions has been validly
and sufficiently taken. The Designated Preferred Securities, when
delivered and paid for in accordance with this Agreement, will be duly and
validly issued and outstanding, will be fully paid and nonassessable
undivided beneficial interests in the assets of the Trust, will be
entitled to the benefits of the Trust Agreement, will not be issued in
violation of or subject to any preemptive or similar rights, and will
conform to the description thereof contained in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and the Trust Agreement. None of the
Designated Preferred Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage, pledge, encumbrance,
restriction upon voting or transfer, preemptive rights, claim, equity or
other defect.
(ii) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and issued
as provided in the Indenture and delivered to the Trust pursuant to the
Trust Agreement, will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity,
and except as any indemnification or contribution provisions thereof may
be limited under applicable securities laws, will be in the form
contemplated by, and entitled to the benefits of, the Indenture, will
conform to
8
the description thereof contained in the Prospectus and will be owned by
the Trust free and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon transfer, preemptive rights, claim, equity
or other defect.
(iii) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to the
guarantee trustee for the benefit of the Trust, will constitute a valid
and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity, and will conform to the
description thereof contained in the Prospectus.
(iv) The Agreement as to Expenses and Liabilities
between the Company and the Trust (the "Expense Agreement") has been duly
and validly authorized, and, when duly and validly executed and delivered
by the Company, will constitute a valid and legally binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity,
and will conform to the description thereof contained in the Prospectus.
(k) The Offerors and the Subsidiaries have complied with all
foreign, 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 or 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, except where the
failure to be in compliance would not have a material adverse effect upon the
condition (financial or otherwise), earnings, business, affairs, prospects or
results of operations of the Offerors and the Subsidiaries on a consolidated
basis.
(l) The Offerors and the Subsidiaries have all permits, easements,
consents, licenses, franchises and other governmental and regulatory
authorizations from all appropriate federal, state, local or other public
authorities ("Permits") as are necessary to own and lease their properties and
conduct their businesses in the manner described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), except where the failure to
have such Permits would not have a material adverse effect upon the condition
(financial or otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis. All
material Permits are in full force and effect and each of the Offerors and the
Subsidiaries are in all material respects complying therewith, and no event has
occurred that allows, or after notice or lapse of time would allow, revocation
or termination thereof or will result in any other material impairment of the
rights of the holder of any material Permit, subject in each case to such
qualification as may be adequately disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus). No
material Permit contains any restriction that would materially impair the
ability of the Company or the Subsidiaries to conduct
9
their businesses in the manner consistent with their past practices. Neither the
Offerors nor any of the Subsidiaries has received notice or otherwise has
knowledge of any proceeding or action relating to the revocation or modification
of any material Permit.
(m) Neither of the Offerors nor any of the Subsidiaries is in breach
or violation of its corporate charter, by-laws, operating agreement or other
governing documents (including without limitation, the Trust Agreement) in any
material respect. Neither of the Offerors nor any of the Subsidiaries is, and to
the knowledge of the Offerors, 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, material
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 breach, violation or default
could have a material adverse effect on the condition (financial or otherwise),
earnings, business, affairs, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, and to the knowledge of the
Offerors, no other party has asserted that the Offerors 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 of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Offerors or
the Subsidiaries or any of their respective properties the breach, violation or
default of which could have a material adverse effect on the condition
(financial or otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis.
(n) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) do not and will not
conflict with, result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the Offerors
or the Subsidiaries or the Designated Preferred Securities pursuant to,
constitute a breach or violation of, or constitute a default under, with or
without notice or lapse of time or both, any of the terms, provisions or
conditions of the charter or by-laws or operating agreement of the Company or
the Subsidiaries, the Trust Agreement, the Guarantee, the Indenture, any
indenture, mortgage, deed of trust, loan or credit agreement or note, or any
material contract, lease, franchise, license, Permit or any other agreement or
instrument to which the Offerors or the Subsidiaries is a party or by which any
of them or any of their respective properties may be bound or any order, decree,
judgment, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having jurisdiction
over the Offerors or the Subsidiaries or any of their respective properties
which conflict, creation, imposition, breach, violation or default would have
either singly or in the aggregate a material adverse effect on the condition
(financial or otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors 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
10
in connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Indenture, the Guarantee, the Registration Statement and the
Prospectus, except such as have been obtained under the 1933 Act, the Trust
Indenture Act and from the American Stock Exchange, Inc. relating to the listing
of the Designated Preferred Securities, and such as may be required under state
securities laws or Interpretations or Rules of the National Association of
Securities Dealers, Inc. ("NASD") in connection with the purchase and
distribution of the Designated Preferred Securities by the Underwriters.
(o) The Offerors have all requisite power and authority to enter
into this Agreement, and this Agreement has been duly and validly authorized,
executed and delivered by the Offerors and constitutes the legal, valid and
binding agreement of the Offerors, enforceable against the Offerors in
accordance with its terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable securities laws.
Each of the Indenture, the Trust Agreement, the Guarantee and the Expense
Agreement has been duly authorized by the Company, and, when executed and
delivered by the Company on the Closing Date, each of said agreements will
constitute a valid and legally binding obligation of the Company and will be
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally and
subject to general principles of equity and except as any indemnification or
contribution provisions thereof may be limited under applicable securities laws.
Each of the Indenture, the Trust Agreement and the Guarantee has been duly
qualified under the Trust Indenture Act.
(p) 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, 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 the Subsidiaries hold 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. To the best knowledge of the Company, no hazardous
substances, hazardous wastes, pollutants or contaminants have been deposited or
disposed of in, on or under the properties of the Company or any of the
Subsidiaries (including properties owned, managed or controlled by a Subsidiary
in connection with its lending activities) during the period in which the
Company or the Subsidiary has owned, occupied, managed, controlled or operated
such properties, in violation of any environmental, safety, health or similar
laws or regulations, orders, decrees or permits relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Regulations"), or any order,
judgment, decree or permit which would require
11
remedial action under any Environmental Regulation, excluding any violation or
remedial action which would not have, in the aggregate, a material adverse
effect on the condition (financial or otherwise), earnings, business, affairs,
prospects or results of operations of Company and the Subsidiaries on a
consolidated basis.
(q) KPMG LLP, who have certified the consolidated financial
statements of the Company and its subsidiaries, including the notes thereto,
included or incorporated by reference in the Registration Statement and
Prospectus, are independent public accountants with respect to the Company and
its subsidiaries, as required by the 1933 Act and the 1933 Act Regulations.
(r) The consolidated financial statements including the notes
thereto, included or incorporated by reference 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 balance sheets,
statements of income, comprehensive income, 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, except that the interim financial statements are subject to
normal year-end adjustments and do not include all footnotes required by
generally accepted accounting principles for audited financial statements. The
selected consolidated financial data concerning the Company 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,
have been derived from the financial statements or operating records of the
Company, 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 in the Registration Statement and the Prospectus (or
such Preliminary Prospectus). The other financial, statistical and numerical
information included in the Registration Statement and the Prospectus (or such
Preliminary Prospectus) complies in all material respects with the 1933 Act and
the 1933 Act Regulations, has been derived from the financial statements or
operating records of the Company, presents fairly the information shown therein,
and to the extent applicable has been compiled on a basis consistent with the
consolidated financial statements of the Company included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus).
(s) 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:
(i) neither of the Offerors nor any of the Subsidiaries has
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree which is material to the condition
(financial or otherwise), earnings, business, affairs, prospects or
results of operations of the Offerors and the Subsidiaries on a
consolidated basis;
12
(ii) there has not been any material adverse change in, or any
development which is reasonably likely to have a material adverse
effect on, the condition (financial or otherwise), earnings,
business, affairs, prospects or results of operations of the
Offerors and the Subsidiaries on a consolidated basis, whether or
not arising in the ordinary course of business;
(iii) neither of the Offerors nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions, other than in the ordinary
course of business, which are material to the condition (financial
or otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis;
(iv) Neither of the Offerors has declared or paid any dividend
and neither of the Offerors nor any of the Subsidiaries has become
delinquent in the payment of principal or interest on any
outstanding borrowings;
(v) there has not been any change in the capital stock,
long-term debt, obligations under capital leases or, other than in
the ordinary course of business, short-term borrowings of the
Offerors or the Subsidiaries; and
(vi) there has not occurred any other event and there has
arisen no set of circumstances required to be disclosed pursuant to
the 1933 Act or the 1933 Act Regulations which has not been so set
forth in the Registration Statement or such Prospectus as fairly and
accurately summarized therein.
(t) 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 Offerors, threatened, against or affecting
the Offerors or the Subsidiaries or any of their respective properties before or
by any court or any regulatory, administrative or governmental official,
commission, board, agency or other authority or body, or any arbitrator, wherein
an unfavorable decision, ruling or finding would have a material adverse effect
on the consummation of this Agreement or the transactions contemplated herein or
the condition (financial or otherwise), earnings, business, affairs, prospects
or results of operations of the Offerors 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.
(u) There are no contracts or other documents required to be filed
as exhibits to the Registration Statement by the 1933 Act or the 1933 Act
Regulations or the Trust Indenture Act (or any rules or regulations thereunder)
which have not been filed as exhibits to or incorporated by reference into 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.
(v) Neither of the Offerors has taken, directly or indirectly, any
action causing or resulting in or which has constituted or which might
reasonably be expected to cause or result
13
in stabilization or manipulation of any security of the Offerors in connection
with the sale or resale of the Designated Preferred Securities in violation of
the Commission's rules and regulations, including, but not limited to,
Regulation M, nor is either Offeror aware of any such action having been taken
or to be taken by any affiliate of the Offerors.
(w) The Offerors and the Subsidiaries own, or possess adequate
rights to use, all patents, copyrights, trademarks, service marks, trade names
and other rights necessary to conduct the businesses now conducted by them in
all material respects or as described in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), and neither of the
Offerors nor 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, business, affairs, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, and the Offerors do not know of
any basis for any such infringement or conflict.
(x) 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 Offerors, is imminent which might be expected to have a
material adverse effect on the condition (financial or otherwise), earnings,
business, affairs, prospects or results of operations of the Offerors 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, business, affairs, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(y) The Offerors and the Subsidiaries have timely and properly
prepared and filed, or have timely and properly filed extensions for, 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, business, affairs, prospects or
results of operations of the Offerors and the Subsidiaries on a consolidated
basis. The Offerors have no knowledge of any tax deficiency which has been or
might be assessed against the Offerors 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, business, affairs,
prospects or results of operations of the Offerors and the Subsidiaries on a
consolidated basis.
(z) Each of the contracts, agreements and instruments described or
ref0erred to in the Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, the most
14
recent Preliminary Prospectus) and each contract, agreement and instrument filed
as an exhibit to the Registration Statement is in full force and effect and is
the legal, valid and binding agreement of the Offerors or the Subsidiaries,
enforceable in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of equity.
Except as disclosed in the Prospectus (or such Preliminary Prospectus), to the
knowledge of the Offerors, 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.
(aa) No relationship, direct or indirect, exists between or among
the Offerors or the Subsidiaries, on the one hand, and the directors, officers,
trustees, shareholders, customers or suppliers of the Offerors or the
Subsidiaries, on the other hand, which is required to be described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) which is not adequately
described therein.
(bb) No person has the right to request or require the Offerors or
the Subsidiaries to register any securities for offering and sale under the 1933
Act by reason of the filing of the Registration Statement with the Commission or
the issuance and sale of the Designated Preferred Securities except as
adequately disclosed in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(cc) The Designated Preferred Securities have been approved for
listing on the American Stock Exchange, subject to official notice of issuance.
(dd) 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 material legal restrictions required
to be described therein, on the ability of any 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 Offerors or (C) to transfer any of its property or assets to
the Offerors.
(ee) Neither of the Offerors nor any Subsidiary is an "investment
company", a company "controlled" by an "investment company" or an "investment
adviser" within the meaning of the Investment Company Act of 1940, as amended
(the "Investment Company Act") or the Investment Advisers Act of 1940, as
amended (the "Advisers Act").
(ff) The Offerors have not distributed and will not distribute prior
to the Closing Date any prospectus in connection with the Offering, other than a
Preliminary Prospectus, the Prospectus, the Registration Statement and the other
materials permitted by the 1933 Act and the 1933 Act Regulations and reviewed by
the Representatives.
(gg) The activities of the Company and the Subsidiaries are
permitted under applicable federal and state banking laws and regulations. The
Company has all necessary approvals, including the approval of the Kentucky
Department of Financial Institutions (the "KDFI") and the Board of Governors of
the Federal Reserve System ("FRB"), as applicable, to own the capital stock of
the Subsidiaries. Neither the Company nor any of the Subsidiaries is a
15
party or subject to any agreement or memorandum with, or directive or other
order issued by, the FRB, the KDFI, the FDIC or other regulatory authority
having jurisdiction over it (each, a "Regulator," and collectively, the
"Regulators"), which imposes any restrictions or requirements not generally
applicable to entities of the same type as the Company and the Subsidiaries.
Neither the Company nor any Subsidiary is subject to any directive from any
Regulator to make any material change in the method of conducting their
respective businesses, and no such directive is pending or threatened by such
Regulators.
(hh) The Bank has properly administered all accounts for which it
acts as a fiduciary, including but not limited to accounts for which it serves
as a trustee, agent, custodian, personal representative, guardian, conservator
or investment advisor, in accordance with the terms of the governing documents
and applicable state and federal law and regulation and common law, except where
the failure to be in compliance would not have a material adverse effect upon
the condition (financial or otherwise), earnings, business, affairs, prospects
or results of operations of the Offerors and the Subsidiaries taken as a whole.
Neither the Bank nor any of its directors, officers or employees, has committed
any material breach of trust with respect to any such fiduciary account, and the
accountings for each such fiduciary account are true and correct in all material
respects and accurately reflect the assets of such fiduciary account in all
material respects.
(ii) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(jj) The Offerors and the Subsidiaries are in material compliance
with all provisions of Section 517.075, Florida Statutes, relating to doing
business with the Government of Cuba or with any person or affiliate located in
Cuba.
(kk) Each of the Company and the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general or specific
authorizations, (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with U.S. generally accepted accounting
principles and to maintain asset accountability, (C) access to assets is
permitted only in accordance with management's general or specific authorization
and (D) the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences. The books, records and accounts and systems of internal accounting
controls of the Company and each of the Subsidiaries comply in all material
respects with the requirements of Section 13(b)(2) of the 1934 Act.
(ll) Other than as contemplated by this Agreement and as disclosed
in the Registration Statement, the Company has not incurred any liability for
any finder's or broker's fee or agent's commission in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(mm) No report or application filed by the Company or any of its
Subsidiaries with the FRB, the KDFI, the FDIC or any other state or federal
regulatory authority, as of the date it was filed or amended, contained an
untrue statement of a material fact or omitted to state a
16
material fact required to be stated therein or necessary to make the statements
therein not misleading when made or failed to comply in all material respects
with the applicable requirements of the FRB, the KDFI, the FDIC or any other
state or federal regulatory authority, as the case may be.
(nn) Based upon current guidelines of the FRB, the Debentures will
constitute "Tier 1" capital (as defined in 12 C.F.R. Part 225), subject to
applicable regulatory restrictions on the amount thereof that can be included in
Tier 1 capital.
(oo) None of the Offerors, the Subsidiaries or any other person
associated with or acting on behalf of the Offerors or any of the Subsidiaries,
including, without limitation, any director, officer, agent, or employee of any
of the Subsidiaries or the Company has, directly or indirectly, while acting on
behalf of such Offeror or Subsidiary (i) used any corporate funds for unlawful
contributions, gifts, entertainment, or other unlawful expenses relating to
political activity; (ii) made any unlawful contribution to any candidate for
foreign or domestic office, or to any foreign or domestic government officials
or employees or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof or to foreign or domestic political parties or
campaigns from corporate funds, or failed to disclose fully any contribution in
violation of law; (iii) violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any other payment of funds of either or
both of the Offerors or a Subsidiary or retained any funds which constitute a
violation of any law, rule or regulation or which was or is required to be
disclosed in the Registration Statement or the Prospectus pursuant to the
requirements of the 1933 Act or the 1933 Act Regulations.
(pp) The employee benefit plans, including employee welfare benefit
plans, of the Company and each of the Subsidiaries (the "Employee Plans") have
been operated in material compliance with the applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the
Internal Revenue Code of 1986, as amended (the "Code"), all regulations, rulings
and announcements promulgated or issued thereunder and all other applicable
governmental laws and regulations (except to the extent such noncompliance would
not, in the aggregate, have a material adverse effect upon the condition
(financial or otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors or the Subsidiaries on a consolidated basis).
(tt) Neither of the Offerors nor any of the Subsidiaries is required
to register, become licensed or qualify as a broker-dealer with the Commission
under the 1934 Act or under the laws requiring any such registration, licensing
or qualification in any state in which it or its subsidiaries conduct business.
None of the Offerors nor any of the Subsidiaries has been convicted of any crime
or is or is engaged in any conduct that would be a basis for denial, suspension
or revocation of registration of a broker-dealer under Section 15 of the 1934
Act, and to the best knowledge of the Company, there is no basis for, or
proceeding or investigation that is reasonably likely to become the basis for,
any such disqualification, denial suspension or revocation.
17
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
Preferred Securities 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 Trust shall not be reduced as a result of such reduction or
change. Because the NASD may view the Preferred Securities as interests in a
direct participation program, the offering of the Preferred Securities is being
made in compliance with the applicable provisions of Rule 2810 of the NASD's
Conduct Rules.
The Underwriters may reserve and sell such of the Designated
Preferred Securities purchased by the Underwriters as the Underwriters may elect
to dealers chosen by it (the "Selected Dealers") at the public offering price
set forth in the Prospectus less the applicable Selected Dealers' concessions
set forth therein, for re-offering by Selected Dealers to the public at the
public offering price. The 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 Offerors. The Offerors jointly and severally
covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then, the
Offerors will prepare and file in accordance with Rule 430A and Rule 424(b), 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 Representatives of such
timely filing.
(b) The Offerors shall notify you immediately, and, if requested by
you, shall promptly 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 to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement
the Registration Statement, any Preliminary Prospectus or the Prospectus
or for additional information; and
18
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities for offering
or sale in any jurisdiction or the institution or threat of institution of
any proceedings for any of such purposes. The Offerors shall use their
best efforts to prevent the issuance of any such stop order or of any
other such order and if any such order is issued, to cause such order to
be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to
time without charge, as soon as available, as many copies as the Underwriters
may reasonably request of (i) the registration statement as originally filed and
of all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) each Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply to the best of their ability with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Designated
Preferred Securities as contemplated herein and in the Trust Agreement and the
Prospectus. The Offerors shall not file any amendment to the registration
statement as originally filed or to the Registration Statement and shall not
file any amendment thereto or make any amendment or supplement to any
Preliminary Prospectus or to the Prospectus unless you shall previously have
been advised in writing and provided a copy a reasonable time prior to the
proposed filings thereof and to which you or counsel for the Underwriters shall
not have objected. If it is necessary, in the Company's reasonable opinion or in
the reasonable opinion of the Company's counsel to amend or supplement the
Registration Statement or the Prospectus in connection with the distribution of
the Designated Preferred Securities, the Offerors shall forthwith amend or
supplement the Registration Statement or the Prospectus, as the case may be, by
preparing and filing with the Commission (provided the Underwriters or counsel
for the Underwriters do not reasonably object) 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 satisfactory to you and 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 a material
fact or to include a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or if
for any reason it is necessary at any time to amend or supplement the Prospectus
to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall,
subject to the second sentence of this subsection (d), forthwith amend or
supplement the Prospectus by preparing and filing with the Commission, and
furnishing to 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 reasonably satisfactory to you and counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit
19
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(e) The Offerors shall use their best efforts to permit the
Preferred Securities to be eligible for clearance and settlement through the
facilities of DTC.
(f) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than sixteen
(16) months after the Effective Date, a consolidated earnings statement of the
Offerors in reasonable detail, covering a period of at least twelve (12)
consecutive months beginning after the Effective Date, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall
furnish to the Representatives copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the Commission) or the
American Stock Exchange, any other national securities exchange, or other
self-regulatory organization, and such other documents, reports and information
concerning the business and financial conditions of the Offerors as the
Representatives may reasonably request, other than such documents, reports and
information for which the Offerors have the legal obligation not to reveal to
the Representatives.
(i) Until the earlier of the Option Closing Date or the expiration
of the Option, the Offerors shall not, directly or indirectly, offer for sale,
sell or agree to sell or otherwise dispose of any Designated Preferred
Securities other than pursuant to this Agreement, any other beneficial interests
in the assets of the Trust or any securities of the Trust or the Company that
are substantially similar to the Designated Preferred Securities or the
Debentures, including any guarantee of such beneficial interests or
substantially similar securities, or securities convertible into or exchangeable
for or that represent the right to receive any such beneficial interest or
substantially similar securities, without the prior written consent of the
Representatives.
(j) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to be listed on the American Stock Exchange or
in lieu thereof to be listed, quoted or included on or in another national
securities exchange, or the Nasdaq National Market and to remain so listed,
quoted or included for at least five (5) years from the Effective Date or for
such shorter period as may be specified in a written consent of the
Representatives, provided this shall not prevent the Company from redeeming the
Designated Preferred Securities pursuant to the terms of the Trust Agreement. If
the Designated Preferred Securities are then listed and are exchanged for
Debentures, the Company will use its best efforts to have the Debentures
promptly listed on the American Stock Exchange or another national stock
exchange or in lieu thereof to
20
be included in the Nasdaq National Market or to be listed, quoted or included on
a national securities exchange or other organization in or on which the
Designated Preferred Securities are then listed, quoted or included, and to have
the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Option to
purchase the Option Preferred Securities shall expire or (ii) the day following
the Option Closing Date with respect to any Option Preferred Securities that the
Underwriters shall elect to purchase, except as described in or contemplated by
the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any
action (or refrain from taking any action) which will result in the Offerors or
the Subsidiaries incurring any material liability or obligation, direct or
contingent, or enter into any material transaction, except in the ordinary
course of business, and there will not be any material change in the financial
position, capital stock, or any material increase in long-term debt, obligations
under capital leases or short-term borrowings of the Offerors and the
Subsidiaries on a consolidated basis.
(l) Except as contemplated by the Prospectus and pursuant to a
publicly announced stock repurchase program to purchase shares of Company common
stock, the Offerors shall not, for a period of 180 days after the date hereof,
without the prior written consent of the Representatives, purchase, redeem or
call for redemption, or prepay or give notice of prepayment (or announce any
redemption or call for redemption, or any repayment or notice of prepayment) any
of the Offerors' securities.
(m) The Offerors shall not take, directly or indirectly, any action
designed to result in or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of any
security of the Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Offerors will not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities (the "Offering") without your prior consent.
(o) The Offerors shall inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution of the
Securities by the Underwriters if either of the Offerors or any of the
Subsidiaries commences engaging in business with the government of Cuba or with
a person or affiliate located in Cuba, with such information to be provided
within ninety (90) days after the commencement thereof or after a change occurs
with respect to previously reported information.
5. Payment of Expenses. Whether or not this Agreement is terminated or the
sale of the Designated Preferred Securities 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
21
expenses incident to the performance of the obligations of the Offerors under
this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements), the certificates for the Designated Preferred Securities and the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(b) all fees, expenses and disbursements of the Offerors' counsel
and accountants;
(c) all fees and disbursements of counsel for the Underwriters in
connection with the preparation of the Preliminary and Final Blue Sky Memoranda
and any legal investment surveys and any supplements thereto;
(d) all filing fees and expenses incurred in connection with filings
made with the NASD;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the American Stock Exchange;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture and the Guarantee; and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to the termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
out-of-pocket expenses in connection herewith or in
22
contemplation of the performance of your obligations hereunder, including
without limitation travel expenses, fees, expenses and disbursements of counsel
or other out-of-pocket expenses incurred by you in connection with any
discussion of the Offering or the contents of the Registration Statement, any
investigation of the Offerors and the Subsidiaries, or any preparation for the
marketing, purchase, sale or delivery of the Designated Preferred Securities, in
each case following presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
6. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Preferred Securities and,
following exercise of the Option, the Option Preferred Securities, are subject
to the accuracy of the representations and warranties and to compliance with the
agreements of the Offerors herein as of the date hereof and as of the Closing
Date (or in the case of the Option Preferred Securities, if any, as of the
Option Closing Date), to the accuracy of the written statements of the Offerors
made pursuant to the provisions hereof, to the performance by the Offerors of
their covenants and obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as 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 Offerors or the Representatives, 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) Neither the Registration Statement or any post-effective
amendment thereto, nor the Prospectus or any amendment or supplement thereto,
shall contain an untrue statement of a 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 the light of the
circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Trust Agreement, and
the Designated
23
Preferred Securities, and the authorization and form of the Registration
Statement and Prospectus, other than financial statements and other financial
data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be satisfactory
in all material respects to counsel for the Underwriters, and the Offerors and
the Subsidiaries shall have furnished to such counsel all documents and
information relating thereto that they may reasonably request to enable them to
pass upon such matters.
(d) Stites & Harbison, PLLC ("S&H"), counsel for the Offerors, 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 Commonwealth of
Kentucky, and is duly registered as a bank holding company under the BHC
Act. Each of the Subsidiaries is validly existing and in active status or
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 power and authority to own or lease its properties and to conduct
its business as such business is described in the Prospectus;
(ii) The capital stock, Debentures and Guarantee of the
Company and the equity securities of the Trust conform to the description
thereof contained in the Prospectus in all material respects. The capital
stock of the Company authorized as of March 31, 2001 is as set forth under
the caption "Capitalization" in the Prospectus, and the shares issued and
outstanding as indicated in this opinion have been duly authorized and
validly issued and are fully paid and nonassessable, except to the extent
that such shares may be deemed assessable under 12 U.S.C. Section 1831o.
To the best of such counsel's knowledge, and except as described in the
Registration Statement or the Prospectus (or if the Prospectus is not yet
in existence, the most recent Preliminary Prospectus), there are no
outstanding rights, options or warrants to purchase, no other outstanding
securities convertible into or exchangeable for, and no commitments, plans
or arrangements to issue, any shares of capital stock of the Company or
equity securities of the Trust;
(iii) The issuance, sale and delivery of the Designated
Preferred Securities and Debentures in accordance with the terms and
conditions of this Agreement and the Indenture have been duly authorized
by all necessary actions of the Offerors.
(iv) The Designated Preferred Securities have been duly
authorized by the Trust Agreement and, when issued and sold in accordance
with the Trust Agreement will be duly and validly issued, fully paid and
nonassessable beneficial interests in the assets of the Trust and entitled
to the benefits of the Trust Agreement, and will conform in all material
respects to the description thereof in the Registration Statement and the
Prospectus. The Designated Preferred Securities have been approved for
listing on the American Stock Exchange, subject to official notice of
issuance.
24
(v) 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 or
equity securities of the Offerors pursuant to the corporate charter,
by-laws or other governing documents (including without limitation, the
Trust Agreement) of the Offerors or any of the Subsidiaries, or, to the
best of such counsel's knowledge, any agreement or other instrument to
which either Offeror or any of the Subsidiaries is a party or by which
either Offeror or any of the Subsidiaries may be bound.
(vi) The Offerors have all requisite corporate and trust power
to enter into and perform their obligations under this Agreement, and this
Agreement has been duly and validly authorized, executed and delivered by
the Offerors and constitutes the legal, valid and binding obligations of
the Offerors enforceable against the Offerors in accordance with its
terms, except as the enforcement hereof or thereof may be limited by
general principles of equity and by bankruptcy or other laws relating to
or affecting creditors' rights generally, and except as the
indemnification and contribution provisions hereof may be limited under
applicable laws and certain remedies may not be available in the case of a
non-material breach;
(vii) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act, has been
duly authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally and of general principles of
equity;
(viii) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the benefits
of the Indenture and are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms,
subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity;
(ix) The Expense Agreement has been duly authorized, executed
and delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity;
(x) To the best of such counsel's knowledge, neither of the
Offerors nor any of the Subsidiaries is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, by-laws or governing document (including without
limitation, the Trust Agreement). The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated by
this Agreement, and the Trust Agreement do not and will not conflict with,
result in
25
the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or
the Subsidiaries or the Designated Preferred Securities pursuant to, or
constitute a material breach or violation of, or constitute a material
default under, with or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws, operating
agreement or governing document (including without limitation, the Trust
Agreement) of the Offerors or the Subsidiaries, or to the best of such
counsel's knowledge, any indenture, mortgage, deed of trust, loan or
credit agreement, note, material contract, lease, franchise, license or
any other agreement or instrument to which either Offeror or the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or any order, decree, judgment, franchise,
license, material Permit, or rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or
foreign, known to such counsel having jurisdiction over the Offerors or
the Subsidiaries or any of their respective properties. 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 Kentucky law in connection with the
transactions contemplated by this Agreement in connection with the
purchase and distribution of the Designated Preferred Securities by the
Underwriters;
(xi) To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right that, if
exercised, would require the Offerors to cause such securities to be
included in the Registration Statement or have waived such right. To the
best of such counsel's knowledge, neither the Offerors nor any of the
Subsidiaries is a party to any agreement or other instrument which grants
rights for or relating to the registration of any securities of the
Offerors;
(xii) Except as set forth in the Registration Statement and
the Prospectus, to the best of such counsel's knowledge, (i) no action,
suit or proceeding at law or in equity is pending or threatened in writing
to which any of the Offerors or the Subsidiaries is or could reasonably be
expected to become a party, and (ii) no action, suit or proceeding is
pending or threatened in writing against or affecting the Offerors or the
Subsidiaries or any of their properties, before or by any court or
governmental official, commission, board or other administrative agency,
authority or body, or any arbitrator, wherein an unfavorable decision,
ruling or finding could reasonably be expected to have a material adverse
effect on the consummation of this Agreement or the issuance and sale of
the Designated Preferred Securities as contemplated herein which is
required to be disclosed in the Registration Statement or the Prospectus
and is not so disclosed;
(xiii) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act, and the Trust Indenture Act, and
except such as may be required under state securities laws or
Interpretations or Rules of the NASD in connection with the purchase and
distribution of
26
the Designated Preferred Securities by the Underwriters, as to which such
counsel need express no opinion;
(xiv) 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, 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;
(xv) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required
to be disclosed in the Registration Statement or Prospectus or to be filed
as exhibits to the Registration Statement that are not so disclosed or
filed;
(xvi) The statements under the captions "Description of the
Trust," "Description of the Preferred Securities," "Description of the
Debentures," "Book-Entry Issuance," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Debentures and the
Guarantee," "Federal Income Tax Consequences," and "ERISA Considerations"
in, and "Supervision and Regulation," and "Item 3. Legal Proceedings" in
the Company's Annual Report on Form 10-K for the year ended December 31,
2000, incorporated by reference into, the Prospectus, insofar as such
statements constitute a summary of legal and regulatory matters, documents
or instruments referred to therein, are accurate descriptions of the
matters summarized therein in all material respects and fairly present the
information called for with respect to such legal matters, documents and
instruments, other than financial and statistical data as to which said
counsel shall not be required to express any opinion or belief;
(xvii) 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; and
(xviii) Except as described in the Prospectus, to the best of
such counsel's knowledge, there are no contractual encumbrances or
restrictions, or material legal restrictions required to be described
therein on the ability of any of the Subsidiaries (A) to pay dividends or
make any other distributions on its capital stock or to pay indebtedness
owed to the Offerors, (B) to make any loans or advances to, or investments
in, the Offerors or (C) to transfer any of its property or assets to the
Offerors.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation, certificates as to the
identity of any and all indentures, mortgages, deeds of trust, loan or credit
agreements, notes, material contracts, leases, franchises, licenses or other
27
agreements or instruments, and all material Permits, easements, consents,
licenses, franchises and government regulatory authorizations, for purposes of
paragraphs (x), (xi), (xv) and (xviii) hereof and certificates of public
officials. In giving such opinion, such counsel may rely as to matters of
Delaware law upon the opinion of Richards, Layton & Finger, P.A. described
herein.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement and Prospectus and the documents incorporated therein by reference
(without taking further action to verify independently the statements made in
the Registration Statement and the Prospectus, and without assuming
responsibility for the accuracy or completeness of such statements, except to
the extent expressly provided above) and such counsel has no reason to believe
(A) that the Registration Statement or any amendment thereto (except for the
financial statements and related schedules and statistical data and exhibits
included therein or omitted therefrom or Underwriters' 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 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 (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 and exhibits included therein or omitted
therefrom or Underwriters' 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 a material fact or omitted or omits to state any material fact
required to be stated therein or necessary, in the light of the circumstances
under which they were made, to make the statements therein not misleading, or
(C) that there is any amendment to the Registration Statement required to be
filed that has not already been filed.
(e) Richards, Layton & Finger, P.A., special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of 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 Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
(ii) The Trust Agreement constitutes a valid and binding
obligation of the Company and the Trustees and is enforceable against the
Company and the Trustees in accordance with its terms.
28
(iii) Under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority (i) to execute and
deliver, and to perform its obligations under this Agreement, (ii) to
issue and perform its obligations under the Trust Securities, and (iii) to
conduct its business as described in the Prospectus.
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Trust of the Underwriting
Agreement, and the performance by the Trust of its obligations under the
Underwriting Agreement, have been duly authorized by all necessary trust
action on the part of the Trust.
(v) The Preferred Securities have been duly authorized by the
Trust Agreement and are validly issued and, subject to the qualification
expressed in paragraph (vi) below, fully paid and nonassessable beneficial
interests in the assets of the Trust and are entitled to the benefits of
the Trust Agreement. The form Preferred Securities Certificate has been
duly authorized by the Trust and complies with all applicable requirements
of the Delaware Business Trust Act.
(vi) Holders of Preferred Securities, as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to shareholders of private, for-profit corporations organized
under the General Corporation Law of the State of Delaware. Such opinion
may note that the holders of Designated Preferred Securities may be
obligated to make payments as set forth in the Trust Agreement.
(vii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Preferred Securities is not subject to
preemptive rights.
(viii) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation by the
Trust of the transactions contemplated by this Agreement, do not violate
(a) any provisions of the Trust Agreement, or (b) any applicable Delaware
law, rule or regulation.
(xi) Neither the execution, delivery and performance by the
Trust of the Underwriting Agreement, nor the offering, issuance, sale or
delivery of the Preferred Securities, requires the consent or approval of,
the withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any action in
respect of, any governmental authority or agency of the State of Delaware,
other than the filing of the Certificate of Trust with the Secretary of
State.
Such opinion may state that it is limited to the laws of the State
of Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the
29
effect of applicable public policy on the enforceability of provisions relating
to indemnification or contribution.
(f) Bryan Cave 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 Designated Preferred Securities, 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 reasonably request to enable them to pass on such matters. In giving such
opinion, Bryan Cave LLP may rely as to matters of fact upon statements and
certifications of officers of the Offerors and of other appropriate persons and
may rely as to matters of law, other than the laws of the United States and the
State of Missouri, upon the opinions of S&H and Richards, Layton & Finger, P.A.
described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from KPMG 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 Representatives, confirming that they are
independent public accountants with respect to Company (which shall be inclusive
of its subsidiaries for purposes of this Section 6(g)), 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 audited by them and included in the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to their attention that caused them to believe
that, if applicable, the unaudited interim consolidated financial
statements of the Company included in the Registration Statement do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act, 1933 Act Regulations, 1934 Act and 1934 Act
Regulations, including without limitation, Regulation S-K, or are not in
conformity with U.S. generally accepted accounting principles applied on a
basis substantially consistent, except as noted in the Registration
Statement, with the basis for the audited consolidated financial
statements of the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the
30
unaudited interim financial statements and other information referred to
below, a reading of the latest available unaudited condensed consolidated
financial statements of the Company, inspection of the minute books of the
Company since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Registration
Statement, inquiries of officials of the Company responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to 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
consolidated capital stock of the Company, any increase in the
consolidated debt of the Company, any decreases in consolidated
total assets or stockholders' equity of the Company, or any changes,
decreases or increases in other items specified by the
Representatives, in each case as compared with amounts shown in the
latest unaudited interim consolidated statement of financial
condition of the Company included in the Registration Statement
except in each case for changes, increases or decreases which the
Registration Statement specifically discloses, have occurred or may
occur or which are described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements of the Company included in
the Registration Statement to the specified date referred to in
clause (iii)(A), there were any decreases in the consolidated
interest income, net interest income, or net income of the Company
or in the per share amount of net income of the Company, or any
changes, decreases or increases in any other items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Registration Statement discloses
have occurred or may occur, or which are described in such letter.
(iv) In addition to the audit referred to in 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 Representatives which are
derived from the general accounting records and consolidated financial
statements of the Company which appear in the Registration Statement, and
have compared such amounts, percentages and financial information with the
accounting records and the material derived from such records and
consolidated financial statements of the Company 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
31
exceptions from such agreement specified in clause (iv) above, it shall be a
further condition to the obligations of the Underwriters that the
Representatives shall have determined, after discussions with officers of the
Company responsible for financial and accounting matters, that such changes,
decreases, increases or exceptions as are set forth in such letters do not (x)
reflect a material adverse change in the items specified in clause (iii)(A)
above as compared with the amounts shown in the latest unaudited consolidated
statement of financial condition of the Company included in the Registration
Statement, (y) reflect a material adverse change in the items specified in
clause (iii)(B) above as compared with the corresponding periods of the prior
year or other period specified by the Representatives, 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.
(h) [Reserved].
(i) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the Chairman and Chief Executive Officer
or the President and the Treasurer of the Company, which certificates shall be
deemed to be made on behalf of the Company dated as of the Closing Date and, if
applicable, the Option Closing Date, evidencing satisfaction of the conditions
of Section 6(a) and stating that (i) the representations and warranties of the
Company set forth in Section 2(a) hereof are accurate as of the Closing Date
and, if applicable, the Option Closing Date, and that each of the Offerors has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such Closing Date; (ii) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change in the
condition (financial or otherwise), earnings, business, affairs, prospects or
results of operations of the Offerors and the Subsidiaries on a consolidated
basis; (iii) since such dates there has not been any material transaction
entered into by the Offerors or the Subsidiaries other than transactions in the
ordinary course of business; and (iv) they have carefully examined the
Registration Statement and the Prospectus as amended or supplemented 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
as of their respective effective or issue dates, contained, and the Prospectus
as amended or supplemented at such Closing Date (and, if applicable, the Option
Closing Date), contains any untrue statement of a material fact, or omits to
state a material fact required to be stated therein or necessary, in the light
of the circumstances under which they were made, to make the statements therein,
not misleading; and (v) covering such other matters as you may reasonably
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) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received a certificate of an authorized representative of the
Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or
32
satisfied by the Trust on or prior to the Closing Date and since the most recent
date as of which information is given in the Prospectus, except as described in
the Prospectus, the Trust has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions not
in the ordinary course of business and there has not been any material adverse
change in the condition (financial or otherwise) of the Trust.
(k) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(l) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the Underwriters'
participation in such offering.
(m) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors 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 of the Underwriters' obligations hereunder may be terminated by you on
notice to the Company at, or at any time before, the Closing Date or the Option
Closing Date, as applicable. Any such termination shall be without liability of
the Underwriters to the Offerors.
7. Indemnification and Contribution.
(a) The Offerors jointly and 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 upon: (i) any untrue statement or alleged
untrue statement of a material fact made by the Company or the Trust contained
in the registration statement as originally filed or the Registration Statement,
any Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto; (ii) any omission or alleged omission to state a material fact in the
registration statement as originally filed or the Registration Statement, the
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, required to be stated therein or necessary to make the statements
therein not misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorneys' fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to
33
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; or (iii) the
enforcement of this indemnification provision or the contribution provisions of
Section 7(d); 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, incurred by them in connection with investigating or
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action, notwithstanding the possibility
that payments for such expenses might later be held to be improper, in which
case such payments shall be promptly refunded; provided, however, that the
Offerors shall not 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 the Underwriters' Information; 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 person
controlling any Underwriter) to the extent any such losses, claims, damages,
liabilities or expenses directly results from the fact that such Underwriter
sold Designated Preferred Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (as amended or supplemented if any amendments or supplements thereto
shall have been furnished to you in sufficient time to distribute same with or
prior to the written confirmation of the sale involved), if required by law, and
if such loss, claim, damage, liability or expense would not have arisen but for
the failure to give or send such person such document. The foregoing indemnity
agreement is in addition to any liability the Company or the Trust may otherwise
have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each Offeror, each of its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls an
Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters' Information. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to any
such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has
34
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 fees and expenses of more than one separate
firm of attorneys at any time and for all such indemnified parties and
controlling persons, which firm shall be designated in writing by the
indemnified party(ies) (and, if such indemnified parties are Underwriters, by
you, as Representatives). 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 with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative
35
benefits referred to in clause (i) above but also the relative fault of the
Offerors on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Designated Preferred Securities
(before deducting expenses) received by the Offerors bear to the total
underwriting discounts, commissions and compensation received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), 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 an Offeror within
the meaning of the 1933 Act, each officer and trustee of an Offeror who shall
have signed the Registration Statement and each director of an Offeror shall
have the same rights to contribution as the Offerors subject in each case to the
preceding sentence. The obligations of the Offerors under this paragraph (d)
shall be in addition to any liability which the Offerors may otherwise have, and
the obligations of the Underwriters under this paragraph (d) shall be in
addition to any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 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 an Underwriter) or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror), (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any Underwriter or
of an Offeror, such
36
directors, trustees or officers (or of any person controlling an Underwriter or
an Offeror) shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. Termination. You shall have the right to terminate this Agreement at
any time by written notice at or prior to the Closing Date or, with respect to
the Underwriters' obligation to purchase the Option Preferred Securities, at any
time at or prior to the Option Closing Date, without liability on the part of
the Underwriters to the Offerors, if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which in the judgment of the
Representatives materially impairs the investment quality of the Designated
Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or otherwise),
earnings, business, affairs, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(d) There has occurred any outbreak of hostilities or other calamity
or crisis or material change in general economic, political or financial
conditions, or internal conditions, the effect of which on the financial markets
of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Designated Preferred Securities or enforce contracts
for the sale of the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or in 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 Kentucky authorities; or
37
(g) Any action shall have been taken by any government in respect of
its monetary affairs which, your reasonable judgment, has a material adverse
effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8,
the Offerors shall not then be under any liability to the Underwriters 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 Designated Preferred Securities
hereunder, the other Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Designated Preferred
Securities 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 that portion of such Designated Preferred
Securities to the extent that the aggregate number of Designated Preferred
Securities to be purchased by such non-defaulting Underwriters shall exceed 110%
of the aggregate underwriting commitments with respect to such non-defaulting
Underwriters as set forth in Schedule I hereto, and provided further, that no
non-defaulting Underwriter shall be obligated to purchase Designated Preferred
Securities to the extent that the number of such Designated Preferred Securities
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 Designated Preferred Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, 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 Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company do not arrange
for the purchase of any Designated Preferred Securities 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 Designated Preferred
Securities 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 for 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
Designated Preferred Securities 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
38
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 or the Company, 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
Underwriters 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 Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it
may be terminated by the Offerors, by notifying you or by you, as
Representatives of the several Underwriters, by notifying either Offeror, 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
Offerors and their officers and trustees 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 Offerors or controlling persons of
either Offeror, or by or on behalf of the Underwriters or controlling persons of
the Underwriters, and the obligations of the Company pursuant to Section 5 shall
survive delivery of and payment for the Designated Preferred Securities and
shall survive any termination or cancellation of this Agreement.
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 either Offeror shall be sent to 1040
East Main Street, Louisville, Kentucky 40206, Attention: Chief Financial Officer
(with a copy to Stites & Harbison, PLLC, 400 West Market Street, Suite 1800,
Louisville, Kentucky 40202-3352, Attention: C. Craig Bradley, Jr., Esq.; and
notices to the Underwriters shall be sent to Stifel, Nicolaus & Company,
Incorporated, One Financial Plaza, 501 North Broadway, 9th Floor, St. Louis,
Missouri 63102, Attention: Rick E. Maples; and to J.J.B. Hilliard, W.L. Lyons,
Inc., 2200 West Henderson Road, 18th Floor, Columbus, Ohio 43220, Attention:
Douglas J. Walouke, CFA, (with a copy to Bryan Cave LLP, 211 North Broadway,
Suite 3600, St. Louis, Missouri 63102, Attention: Harold R. Burroughs, Esq.). In
all dealings with the Company under this Agreement, Stifel, Nicolaus & Company,
Incorporated and J.J.B.
39
Hilliard, W.L. Lyons, Inc. shall act jointly as representatives of and on behalf
of the several Underwriters, and the Company shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of the Underwriters,
made or given jointly by Stifel, Nicolaus & Company, Incorporated and J.J.B.
Hilliard, W.L. Lyons, Inc. on behalf of the Underwriters, as if the same shall
have been made or given in writing by the Underwriters. No statement, request,
notice, agreement or action issued or taken in connection with the Offering by
either Stifel, Nicolaus & Company, Incorporated or J.J.B. Hilliard, W.L. Lyons,
Inc., acting alone, without the express written agreement of the other party,
shall be valid and binding against the other or the several Underwriters.
13. Parties. The Agreement herein set forth is made solely for the benefit
of the Underwriters and the Offerors and, to the extent expressed, directors,
trustees and officers of the Offerors, any person controlling the Offerors or
the Underwriters, 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 the Underwriters of the Designated Preferred Securities.
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.
40
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 between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
S.Y. BANCORP, INC.
By: ____________________________________
Name: ______________________________
Title:
S.Y. BANCORP CAPITAL TRUST I
By: ____________________________________
Name: ______________________________
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of ______________, 2001
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By: ____________________________________
Name: ______________________________
Title: _____________________________
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
J.J.B. HILLIARD, W.L. LYONS, INC.
By: ____________________________________
Name: ______________________________
Title: _____________________________
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
SCHEDULE I
Underwriter Number of Preferred Securities
----------- ------------------------------
Stifel, Nicolaus & Company, Incorporated
J.J.B. Hilliard, W.L. Lyons, Inc.
---------
Total 1,800,000
=========
EXHIBIT A
LIST OF SIGNIFICANT DIRECT AND INDIRECT SUBSIDIARIES
Stock Yards Bank & Trust Company
*Bourbon Properties, LLC
*Indicates direct or indirect wholly-owned subsidiary of Stock Yards Bank &
Trust Company