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EXHIBIT 1.1
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2,400,000 Preferred Securities
First Preferred Capital Trust
---% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
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---------- --, 1997
STIFEL, NICOLAUS & COMPANY, INCORPORATED
As Representative of the Several Underwriters
named in Schedule I hereto
500 North Broadway
St. Louis, Missouri 63102
Dear Sirs:
First Banks, Inc., a Missouri corporation (the
"Company") and its financing subsidiary, First Preferred Capital
Trust, 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, 2,400,000 of the Trust's ----% Cumulative Trust
Preferred Securities, with a liquidation amount of $25.00 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 2,400,000 Preferred Securities to
be sold to the Underwriter are herein called the "Firm Preferred
Securities". Solely for the purpose of covering over-allotments
in the sale of the Firm Preferred Securities, the Offerors
further propose that the Trust issue and sell to the
Underwriters, at their option, up to an additional 360,000
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". You are acting as representative of the
Underwriters and in such capacity are sometimes herein referred
to as the "Representative."
The Offerors hereby confirm as follows their agreement
with each of the Underwriters in connection with the proposed
purchase of the Designated Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED
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SECURITIES; DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
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(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,
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severally and not jointly, to purchase from the Trust, at a purchase price of
$25.00 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 Subordinated 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
Representative 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 Representative) 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
2,400,000.
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 360,000 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
you 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 2,400,000. Because the
proceeds from the sale of the Option Preferred Securities will be
used to purchase from the Company its Subordinated 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 30 days after
the date upon which the Registration Statement (as hereinafter
defined) becomes effective and may be exercised only for the
purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Firm
Preferred Securities. The Option may be exercised in whole or in
part at any time (but not more than once) by you giving notice
(confirmed in writing) to 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.
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, 500 North Broadway, 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 ----- --,
1997, or at such other time not more than five full business days
thereafter as the Offerors and you shall determine (the "Closing
Date"). If the Underwriters exercise the option to
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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 Underwriters'
offices, 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 or certified or bank cashier's
check, in clearing house or similar next day available 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.
The Agreement contained herein with respect to the
timing of the Closing Date and Option Closing Date is intended
to, and does, constitute an express agreement, as described in
Rule 15c6-1(c) and (d) promulgated under the 1934 Act (as defined
herein), for a settlement date other than four business days
after the date of the contract.
Certificates for Designated Preferred Securities to be
purchased by the Underwriters shall be delivered by the Offerors
in fully registered form in the name of Cede & Co., the nominee
of the Depositary (as defined in the Prospectus) which shall act
as securities depositary for the Designated Preferred Securities,
not later than 12:00 noon, St. Louis time, two business days
prior to the Closing Date and, if applicable, the Option Closing
Date. Certificates for Designated Preferred Securities to be
purchased by the Underwriters shall be made available by the
Offerors to you for inspection, checking and packaging at the
offices of the Depositary not later than 1:00 p.m., St. Louis
time, on the last business day prior to the Closing Date and, if
applicable, on the last business day prior to the Option Closing
Date.
Time shall be of the essence, and delivery of the
certificates for the Designated Preferred Securities at the time
and place specified pursuant to this Agreement is a further
condition of the 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 State Street Bank and Trust
Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein,
(collectively, the "Trustees"), and the Company, in substantially
the form heretofore delivered to the 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 ( the "Debentures") pursuant to an Indenture, dated as
of -------------, 1997, between the Company and State Street Bank
and Trust Company, as Trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Preferred Securities
pursuant to a Guarantee Agreement between the Company and State
Street Bank and Trust Company, as guarantee trustee (the
"Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
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(a) The Offerors jointly and severally represent and
warrant to, and agree with, each of the Underwriters that:
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(i) The reports filed with the Securities and
Exchange Commission (the "Commission") by the Company under
the Securities Exchange Act of 1934, as amended (the "1934
Act") and the rules and regulations thereunder (the "1934
Act Regulations") at the time they were filed with the
Commission, complied as to form in all material respects
with the requirements of the 1934 Act and the 1934 Act
Regulations and did not contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were
made, not misleading.
(ii) The Offerors have prepared and filed with the
Commission a registration statement on Form S-2 (File
Numbers 333------ and 333-------01) for the registration of
the Designated Preferred Securities, the Guarantee and
$69,000,000 aggregate principal amount of Debentures under
the Securities Act of 1933, as amended (the "1933 Act"),
including the related prospectus subject to completion, and
one or more amendments to such registration statement may
have been so filed, in each case in conformity in all
material respects with the requirements of the 1933 Act, the
rules and regulations promulgated thereunder (the "1933 Act
Regulations") and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the rules and
regulations thereunder. Copies of such registration
statement, including any amendments thereto, each
Preliminary Prospectus (as defined herein) contained therein
and the exhibits, financial statements and schedules to such
registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the
Representative. 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 Representative prior to (or as are agreed to by the
Representative subsequent to) the execution of this
Agreement, or (B) if such registration statement, as it may
have been amended, has not been declared by the Commission
to be effective under the 1933 Act, an amendment to such
registration statement, including a form of final
prospectus, necessary to permit such registration statement
to become effective, a copy of which amendment has been
furnished to and not objected to by the Representative prior
to (or is agreed to by the Representative subsequent to) the
execution of this Agreement. 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
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term "Prospectus" means the prospectus first filed with the
Commission pursuant to Rule 424(b)(1) or (4) or, if no
prospectus is required to be filed pursuant to Rule
424(b)(1) or (4), the prospectus included in the
Registration Statement, in each case including the financial
schedules and all documents (or portions thereof)
incorporated by reference therein under the 1934 Act. The
date on which the Registration Statement becomes effective
is hereinafter referred to as the "Effective Date."
(iii) The documents incorporated by reference
in the Preliminary Prospectus or Prospectus or from which
information is so incorporated by reference, when they
became effective or were filed with the Commission, as the
case may be, complied in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations,
and when read together and with the other information in the
Preliminary Prospectus or Prospectus, as the case may be, at
the time the Registration Statement became or becomes
effective and at the Closing Date and any Option Closing
Date, did not or will not, as the case may be, contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(iv) No order preventing or suspending the use of
any Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) has been issued by
the Commission, nor has the Commission, to the knowledge of
the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary
Prospectus, at the time of filing thereof, (A) complied in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and (B) did not contain an
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading; 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" (such
information referred to herein as the "Underwriters'
Information").
(v) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date
and, if applicable, the Option Closing Date, the
Registration Statement and any post-effective amendment
thereto (A) complied and will comply 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
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be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty does not apply
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to Underwriters' Information.
(vi) (A) The Company is duly organized, validly
existing and in good standing under the laws of the State of
Missouri, with full corporate and other power and authority
to own, lease and operate its properties and conduct its
business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted and is duly
registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is
validly existing as a statutory business trust in good
standing under the Delaware Business Trust Act with the
power and authority (trust and other) to own its property
and conduct its business as described in the Registration
Statement and Prospectus, to issue and sell its common
securities (the "Common Securities") to the Company pursuant
to the Trust Agreement, to issue and sell the Designated
Preferred Securities, to enter into and perform its
obligations under this Agreement and to consummate the
transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and
is in good standing in each jurisdiction in which the
conduct of its business or the ownership of its property
requires such qualification, 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 and described in
the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust
Agreement and the agreements and instruments contemplated by
the Trust Agreement and described in the Prospectus; the
Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the
Prospectus; the Trust is not a party to or subject to any
action, suit or proceeding of any nature; the Trust is not,
and at the Closing Date or any Option Closing Date will not
be, 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.
(vii) The Company has ---- subsidiaries. They
are listed on Exhibit A attached hereto and incorporated
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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 other than the Subsidiaries. First Bank (St. Louis
County, Missouri), First Bank (O'Fallon, Illinois), First
Bank FSB, First Bank & Trust, BankTEXAS, N.A., First
Commercial Bank and Sunrise Bank of California are
collectively referred to as the "Banks". Each Subsidiary is
a bank, bank holding company or corporation duly
incorporated, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation.
Each such Subsidiary has full corporate and other power and
authority to own, lease and operate its properties and to
conduct its
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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 each Bank are insured by the Bank Insurance Fund
administered by the Federal Deposit Insurance Corporation
(the "FDIC") up to the maximum amount provided by law,
except to the extent the Prospectus discloses such deposit
accounts are insured by the Savings Association Insurance
Fund administered by the FDIC ("SAIF") and to such extent
the deposit accounts are so insured up to the maximum amount
provided by law; and no proceedings for the modification,
termination or revocation of any such insurance are pending
or, to the knowledge of the Offerors, threatened.
(viii) The Company and each of the Subsidiaries
is duly qualified to transact business as a foreign
corporation and is in good standing in each other
jurisdiction in which it owns or leases property or conducts
its business so as to require such qualification and in
which the failure to so qualify would, individually or in
the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business,
prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. All of the issued and
outstanding shares of capital stock of the Subsidiaries (A)
have been duly authorized and are validly issued, (B) are
fully paid and nonassessable except to the extent such
shares may be deemed assessable under 12 U.S.C. Section 55
or 12 U.S.C. Section 1831o, and (C) except as disclosed in
the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), are directly owned
by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon voting
or transfer, preemptive rights, claim or equity. Except as
disclosed in the Prospectus, there are no outstanding
rights, warrants or options to acquire or instruments
convertible into or exchangeable for any capital stock or
equity securities of the Offerors or the Subsidiaries.
(ix) The capital stock of the Company and the
equity securities of the Trust conform to the description
thereof contained in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary
Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized
and validly issued and are fully paid and nonassessable, and
no such shares were issued in violation of the preemptive or
similar rights of any security holder of an Offeror; no
person has any preemptive or similar right to purchase any
shares of capital stock or equity securities of the
Offerors. Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding rights, options or
warrants to acquire any securities of the Offerors, and
there are no outstanding securities convertible into or
exchangeable for any such securities and no restrictions
upon the voting or transfer of any capital stock of the
Company or equity securities of the Trust pursuant to the
Company's corporate charter or bylaws, the Trust Agreement
or any agreement or other instrument to which an Offeror is
a party or by which an Offeror is bound.
(x) (A) The Trust has all requisite power and
authority to issue, sell and deliver the Designated
Preferred Securities in accordance with and upon the terms
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and conditions set forth in this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate and trust action
required to be taken by the Offerors for the authorization,
issuance, sale and delivery of the Designated Preferred
Securities in accordance with such terms and conditions has
been validly and sufficiently taken. The Designated
Preferred Securities, when delivered in accordance with this
Agreement, will be duly and validly issued and outstanding,
will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, will be entitled to
the benefits of the Trust Agreement, will not be issued in
violation of or subject to any preemptive or similar rights,
and will conform to the description thereof in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) and the Trust Agreement. None of the Designated
Preferred Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage, pledge,
encumbrance, restriction upon voting or transfer, preemptive
rights, claim, equity or other defect.
(B) The Debentures have been duly and
validly authorized, and, when duly and validly executed,
authenticated and issued as provided in the Indenture and
delivered to the Trust pursuant to the Trust Agreement, will
constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and will
conform to the description thereof contained in the
Prospectus.
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and
delivered to the guarantee trustee for the benefit of the
Trust, will constitute a valid and legally binding
obligation of the Company and will conform to the
description thereof contained in the Prospectus.
(xi) The Offerors and the Subsidiaries have
complied in all material respects with all federal, state
and local statutes, regulations, ordinances and rules
applicable to the ownership and operation of their
properties or the conduct of their businesses as described
in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and as currently being
conducted.
(xii) The Offerors and the Subsidiaries have
all material permits, easements, consents, licenses,
franchises and other governmental and regulatory
authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own
and lease their properties and conduct their businesses in
the manner described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and as
currently being conducted in all material respects. All
such Permits are in full force and effect and each of the
Offerors and the Subsidiaries are in all material respects
complying therewith, and no event has occurred that allows,
or after notice or lapse of time would allow, revocation or
termination thereof or will result in any other material
impairment of the rights of the holder of any such Permit,
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). Such Permits contain no
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restrictions that would materially impair the ability of the Company or
the Subsidiaries to conduct their businesses in the manner
consistent with their past practices. Neither the Offerors
nor any of the Subsidiaries have received notice or
otherwise has knowledge of any proceeding or action relating
to the revocation or modification of any such Permit.
(xiii) Neither of the Offerors nor any of the
Subsidiaries is in breach or violation of their corporate
charter, by-laws or other governing documents (including
without limitation, the Trust Agreement). Neither of the
Offerors nor any of the Subsidiaries are, 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, Permit or any other agreement or
instrument to which it is a party or by which it or any of
its properties may be bound, which such breach, violation or
default could have material adverse consequences to the
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
Banks), 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, affairs,
business, prospects, or results of operations of the
Offerors and the Subsidiaries on a consolidated basis.
(xiv) The execution, delivery and performance
of this Agreement and the consummation of the transactions
contemplated by this Agreement, the Trust Agreement, the
Registration Statement and the Prospectus (or, if the
Prospectus in not in existence, the most recent Preliminary
Prospectus) do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of
the Offerors or the Subsidiaries or the Designated Preferred
Securities pursuant to, constitute a breach or violation of,
or constitute a default under, with or without notice or
lapse of time or both, any of the terms, provisions or
conditions of the charter or by-laws of the Company or the
Subsidiaries, the Trust Agreement, the Guarantee, the
Indenture, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license,
Permit or any other agreement or instrument to which 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, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated
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basis. No authorization, approval, consent or order of, or filing,
registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by
this Agreement, the Trust Agreement, the Indenture, the
Guarantee, the Registration Statement and the Prospectus (or
such Preliminary Prospectus), except such as may be required
under the 1933 Act, and such as may be required under state
securities laws in connection with the purchase and
distribution of the Designated Preferred Securities by the
Underwriters. 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 Indenture, the Guarantee, the Registration
Statement and the Prospectus, except such as have been
obtained under the 1933 Act, and such as may be required
under state securities laws or Interpretations or Rules of
the National Association of Securities Dealers, Inc.
("NASD") in connection with the purchase and distribution of
the Designated Preferred Securities by the Underwriters.
(xv) The Offerors have all requisite corporate
power and authority to enter into this Agreement and this
Agreement has been duly and validly authorized, executed and
delivered by the Offerors and constitutes the legal, valid
and binding agreement of the Offerors, enforceable against
the Offerors in accordance with its terms, except as the
enforcement thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally and except as any
indemnification or contribution provisions thereof may be
limited under applicable securities laws. Each of the
Indenture, the Trust Agreement, the Guarantee and the
Agreement as to Expenses and Liabilities (the "Expense
Agreement") has been duly authorized by the Company, and,
when executed and delivered by the Company on the Closing
Date, each of said agreements will constitute a valid and
legally binding obligation of the Company and will be
enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy or other laws
relating to or affecting creditors' rights generally and
except as any indemnification or contribution provisions
thereof may be limited under applicable securities laws.
Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act and
will conform to the description thereof contained in the
Prospectus.
(xvi) The Company and the Subsidiaries have
good and marketable title in fee simple to all real property
and good title to all personal property owned by them and
material to their 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
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neither the Company nor any of the Subsidiaries is in default in any
material respect of any of the terms or provisions of any leases.
(xvii) KPMG Peat Marwick LLP, who have
certified certain of the consolidated financial statements
of the Company and the Subsidiaries including the notes
thereto, included in the Registration Statement and
Prospectus, are independent public accountants with respect
to the Company and the Subsidiaries, as required by the 1933
Act and the 1933 Act Regulations.
(xviii) The consolidated financial statements
including the notes thereto, included in the Registration
Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) with
respect to the Company and the Subsidiaries comply in all
material respects with the 1933 Act and the 1933 Act
Regulations and present fairly the consolidated financial
position of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations, cash
flows and shareholders' equity of the Company and the
Subsidiaries for the periods specified and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis. The selected and
summary consolidated financial data concerning the Offerors
and the Subsidiaries included in the Registration Statement
and the Prospectus (or such Preliminary Prospectus) comply
in all material respects with the 1933 Act and the 1933 Act
Regulations, present fairly the information set forth
therein, and have been compiled on a basis consistent with
that of the consolidated financial statements of the
Offerors and the Subsidiaries in the Registration Statement
and the Prospectus (or such Preliminary Prospectus). The
other financial, statistical and numerical information
included in the Registration Statement and the Prospectus
(or such Preliminary Prospectus) comply in all material
respects with the 1933 Act and the 1933 Act Regulations,
present fairly the information shown therein, and to the
extent applicable have been compiled on a basis consistent
with the consolidated financial statements of the Company
and the Subsidiaries included in the Registration Statement
and the Prospectus (or such Preliminary Prospectus).
(xix) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), except as otherwise
stated therein:
(A) neither of the Offerors nor any of the
Subsidiaries have sustained any loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action,
order or decree which is material to the condition
(financial or otherwise), earnings, business, prospects
or results of operations of the Offerors and the
Subsidiaries on a consolidated basis;
(B) there has not been any material adverse
change in, or any development which is reasonably
likely to have a material adverse effect on, the
condition (financial or otherwise), earnings, business,
prospects or results of operations of the Offerors and
the Subsidiaries on a consolidated basis, whether or
not arising in the ordinary course of business;
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(C) neither of the Offerors nor any of the
Subsidiaries have incurred any liabilities or
obligations, direct or contingent, or entered into any
material transactions, other than in the ordinary
course of business which is material to the condition
(financial or otherwise), earnings, business, prospects
or results of operations of the Offerors and the
Subsidiaries on a consolidated basis;
(D) neither of the Offerors have declared or
paid any dividend, and neither of the Offerors nor any
of the Subsidiaries have become delinquent in the
payment of principal or interest on any outstanding
borrowings; and
(E) there has not been any change in the
capital stock, equity securities, long-term debt,
obligations under capital leases or, other than in the
ordinary course of business, short-term borrowings of
the Offerors or the Subsidiaries.
(xx) 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 could have a material adverse effect on the
consummation of this Agreement or the transactions
contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or
results of operations of the 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.
(xxi) There are no contracts or other
documents required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act
Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as
exhibits or incorporated by reference to the Registration
Statement, or that are required to be summarized in the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) that are not so
summarized.
(xxii) Neither of the Offerors has taken,
directly or indirectly, any action designed to result in or
which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the
price of any security of the Offerors to facilitate the sale
or resale of the Designated Preferred Securities, and
neither of the Offerors is aware of any such action taken or
to be taken by any affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own,
or possess adequate rights to use, all patents, copyrights,
trademarks, service marks, trade names and other rights
necessary to conduct the businesses now conducted by them in
all material respects or as described in the Prospectus (or,
if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and neither the Offerors nor the
Subsidiaries have received any notice of infringement or
conflict with asserted rights of others with respect to any
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patents, copyrights, trademarks, service marks, trade names
or other rights which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, and the Offerors do
not know of any basis for any such infringement or conflict.
(xxiv) 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, affairs, business,
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 have
received notice of any existing or threatened labor dispute
by the employees of any of its principal suppliers,
customers or contractors which might be expected to have a
material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or
results of operations of the Company and the Subsidiaries on
a consolidated basis.
(xxv) The Offerors and the Subsidiaries have
timely and properly prepared and filed all necessary
federal, state, local and foreign tax returns which are
required to be filed and have paid all taxes shown as due
thereon and have paid all other taxes and assessments to the
extent that the same shall have become due, except such as
are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a
material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or
results of operations of the 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, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries
on a consolidated basis.
(xxvi) Each of the material contracts,
agreements and instruments described or referred to in the
Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) and each contract, agreement and instrument
filed as an exhibit to the Registration Statement is in full
force and effect and is the legal, valid and binding
agreement of the Offerors or the Subsidiaries, enforceable
in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting
creditors' rights generally. 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.
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(xxvii) 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.
(xxviii) 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).
(xxix) The Designated Preferred Securities have
been approved for quotation on the Nasdaq National Market
subject to official notice of issuance.
(xxx) 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,
on the ability of the Subsidiaries (A) to pay dividends or
make any other distributions on its capital stock or to pay
any indebtedness owed to the Company, (B) to make any loans
or advances to, or investments in, the Company or (C) to
transfer any of its property or assets to the Company.
(xxxi) Neither of the Offerors is an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company
Act").
(xxxii) 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 Representative.
3. OFFERING BY THE UNDERWRITERS. After the
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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.
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.
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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) copies of the Prospectus or, if
required by Rule 430A, a post-effective amendment to the
Registration Statement (including the Prospectus) containing all
information so omitted and will provide evidence satisfactory to
the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and
confirm such notice in writing:
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, has
become effective, or when the Prospectus or any supplement
to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests
from the Commission;
(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
(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
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statement as originally filed or to the Registration Statement and shall not
file any amendment thereto or make any amendment or supplement to any
Preliminary Prospectus or to the Prospectus of which you shall not previously
have been advised in writing and provided a copy a reasonable
time prior to the proposed filings thereof or to which you or
counsel for the Underwriter shall object. If it is necessary, in
the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel to amend or supplement the Registration
Statement or the Prospectus in connection with the distribution
of the Designated Preferred Securities, the Offerors shall
forthwith amend or supplement the Registration Statement or the
Prospectus, as the case may be, by preparing and filing with the
Commission (provided the Underwriters or counsel for the
Underwriters does 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 reasonably 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 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
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 to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel
for the Underwriters in order to qualify the Designated
Preferred Securities for offering and sale under the securities
or blue sky laws of such jurisdictions as you may reasonably
request and shall continue such qualifications in effect so long
as may be advisable for distribution of the Designated Preferred
Securities; provided, however, that the Offerors shall not be
required to qualify to do business as a foreign corporation or
file a general consent to service of process in any jurisdiction
in connection with the foregoing. The Offerors shall file such
statements and reports as may be required by the laws of each
jurisdiction in which the Designated Preferred Securities have
been qualified as above. The Offerors will notify you
immediately of, and confirm in writing, the suspension of
qualification of the Designated Preferred Securities or threat
thereof in any jurisdiction.
(f) The Offerors shall make generally available to
their security holders in the manner contemplated by Rule 158 of
the 1933 Act Regulations and furnish to you as soon as
practicable, but in any event not later than 16 months after the
Effective Date, a consolidated earnings statement of the Offerors
conforming with the requirements of Section 11(a) of the 1933 Act
and Rule 158.
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(g) The Offerors shall use the net 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 Representative copies of all
reports and communications (financial or otherwise) furnished by
the Offerors to the holders of the Designated Preferred
Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than
portions for which confidential treatment has been obtained from
the Commission) or with any national securities exchange or the
Nasdaq National Market and such other documents, reports and
information concerning the business and financial conditions of
the Offerors as the Representative may reasonably request, other
than such documents, reports and information for which the
Offerors has the legal obligation not to reveal to the
Representative.
(i) For a period of 30 days from the date hereof, the
Offerors shall not, directly or indirectly, offer for sale, sell
or agree to sell or otherwise dispose of any Designated Preferred
Securities, 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,
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 Representative.
(j) The Offerors shall use their best efforts to cause
the Designated Preferred Securities to become quoted on the
Nasdaq National Market, or in lieu thereof a national securities
exchange, and to remain so quoted for at least five years from
the Effective Date or for such shorter period as may be specified
in a written consent of the Representative, provided this shall
not prevent the Company from redeeming the Designated Preferred
Securities pursuant to the terms of the Trust Agreement. If the
Designated Preferred Securities are exchanged for Debentures, the
Company will use its best efforts to have the Debentures promptly
listed on the Nasdaq National Market or other organization on
which the Designated Preferred Securities are then listed, and to
have the Debentures promptly registered under the 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 Underwriters' 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) The Offerors shall not, for a period of 180 days
after the date hereof, without the prior written consent of the
Representative, purchase, redeem or call for redemption,
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or prepay or give notice of prepayment (or announce any redemption
or call for redemption, or any repayment or notice of prepayment)
of any of the 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 to facilitate the sale or resale of the
Designated Preferred Securities 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 written consent.
5. PAYMENT OF EXPENSES. Whether or not this Agreement
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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 expenses incident to the performance
of the obligations of the Offerors under this Agreement,
including:
(a) the preparation, printing, filing, delivery and
shipping of the initial registration statement, the Preliminary
Prospectus or Prospectuses, the Registration Statement and the
Prospectus and any amendments or supplements thereto, and the
printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected
dealers agreements), the certificates for the Designated
Preferred Securities and the Preliminary and Final Blue Sky
Memoranda and any legal investment surveys and any supplements
thereto;
(b) all fees, expenses and disbursements of the
Offerors' counsel and accountants;
(c) all fees and expenses incurred in connection with
the qualification of the Designated Preferred Securities,
Debentures and the Guarantee under the securities or blue sky
laws of such jurisdictions as you may request, including all
filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary
and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(d) all fees and expenses incurred in connection with
filings made with the NASD;
(e) any applicable fees and other expenses incurred in
connection with the listing of the Designated Preferred
Securities and, if applicable, the Guarantee and the Debentures
on the Nasdaq National Market;
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(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 Agreements, the Indenture and
the Guarantee; and
(j) all other costs and expenses incident to the
performance of the obligations of the Company hereunder and under
the Trust Agreement that are not otherwise specifically provided
for in this Section 5.
If the sale of Designated Preferred Securities
contemplated by this Agreement is not completed for any reason
whatsoever, whether or not such termination is allowable
hereunder, the Company will pay you your accountable out-of-
pocket expenses in connection herewith or in contemplation of the
performance of your obligations hereunder, including without
limitation travel expenses, reasonable fees, expenses and
disbursements of counsel or other out-of-pocket expenses incurred
by you in connection with any discussion of the Offering 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
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obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise of the option
granted by the Offerors in Section 1 of this Agreement, the
Option Preferred Securities, are subject, in your sole
discretion, to the accuracy of and compliance with the
representations and warranties and agreements of the Offerors
herein as of the date hereof and as of the Closing Date (or in
the case of the Option Preferred Securities, if any, as of the
Option Closing Date), to the accuracy of the written statements
of the Offerors made pursuant to the provisions hereof, to the
performance by the Offerors of their covenants and obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared
effective prior to the time of execution hereof, the Registration
Statement shall become effective not later than 10:00 a.m., St.
Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and
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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 Representative, shall be
contemplated by the Commission or any state authority. Any
request on the part of the Commission or any state authority for
additional information (to be included in the Registration
Statement or Prospectus or otherwise) shall have been disclosed
to you and complied with to your satisfaction and to the
satisfaction of counsel for the Underwriters.
(b) No Underwriter shall have advised the Company at
or before the Closing Date (and, if applicable, the Option
Closing Date) that the Registration Statement or any post-
effective amendment thereto, or the Prospectus or any amendment
or supplement thereto, contains an untrue statement of a fact
which, in your opinion, is material or omits to state a fact
which, in your opinion, is material and is required to be stated
therein or is necessary to make statements therein (in the case
of the Prospectus or any amendment or supplement thereto, in
light of the circumstances under which they were made) not
misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Trust Agreement, and the Designated Preferred
Securities, and the authorization and form of the Registration
Statement and Prospectus, other than financial statements and
other financial data, and all other legal matters relating to
this Agreement and the transactions contemplated hereby or by the
Trust Agreement shall be satisfactory in all 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) Lewis, Rice & Fingersh, L.C., 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
State of Missouri, and is duly registered as a bank holding
company under the BHC Act. Each of the Subsidiaries is duly
incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation. Each of the
Company and the Subsidiaries has full corporate power and
authority to own or lease its properties and to conduct its
business as such business is described in the Prospectus and
is currently conducted in all material respects. All
outstanding shares of capital stock of the Subsidiaries have
been duly authorized and validly issued and are fully paid
and nonassessable except to the extent such shares may be
deemed assessable under 12 U.S.C. Section 1831 and, to the
best of such counsel's knowledge, except as disclosed in the
Prospectus, there are no outstanding rights, options or
warrants to purchase any such shares or securities
convertible into or exchangeable for any such shares.
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(ii) The capital stock, Debentures and Guarantee
of the Company and the equity securities of the Trust
conform to the description thereof contained in the
Prospectus in all material respects. The capital stock of
the Company authorized and issued as of September 30, 1996
is as set forth under the caption "Capitalization" in the
Prospectus, has been duly authorized and validly issued, and
is fully paid and nonassessable. The form of certificates
to evidence the Designated Preferred Securities has been
approved by the Trust and is in due and proper form and
complies with all applicable requirements. To the best of
such counsel's knowledge, there are no outstanding rights,
options or warrants to purchase, no other outstanding
securities convertible into or exchangeable for, and no
commitments, plans or arrangements to issue, any shares of
capital stock of the Company or equity securities of the
Trust, except as described in the Prospectus.
(iii) The issuance, sale and delivery of the
Designated Preferred Securities and Debentures in accordance
with the terms and conditions of this Agreement and the
Indenture have been duly authorized by all necessary actions
of the Offerors. All of the Designated Preferred Securities
have been duly and validly authorized and, when delivered in
accordance with this Agreement will be duly and validly
issued, fully paid and nonassessable, and will conform to
the description thereof in the Registration Statement, the
Prospectus and the Trust Agreement. The Designated
Preferred Securities have been approved for quotation on the
Nasdaq National Market subject to official notice of
issuance. There are no preemptive or other rights to
subscribe for or to purchase, and 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 or the Subsidiaries pursuant to the corporate
charter, by-laws or other governing documents (including
without limitation, the Trust Agreement) of the Offerors or
the Subsidiaries, or, to the best of such counsel's
knowledge, any agreement or other instrument to which either
Offeror or any of the Subsidiaries is a party or by which
either Offeror or any of the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and
trust power to enter into and perform their obligations
under this Agreement, and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors
and constitutes the legal, valid and binding obligations of
the Offerors enforceable in accordance with its terms,
except as the enforcement hereof or thereof may be limited
by general principles of equity and by bankruptcy or other
laws relating to or affecting creditors' rights generally,
and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and
certain remedies may not be available in the case of a non-
material breach.
(v) Each of the Indenture, the Trust Agreement
and the Guarantee has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and
of general principles of equity;
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(vi) The Debentures have been duly authorized,
executed, authenticated and delivered by the Company, are
entitled to the benefits of the Indenture and are legal,
valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, subject
to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general
principles of equity;
(vii) The Expense Agreement has been duly
authorized, executed and delivered by the Company, and is a
valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general
principles of equity;
(viii) To the best of such counsel's knowledge,
neither of the Offerors nor any of the Subsidiaries is in
breach or violation of, or default under, with or without
notice or lapse of time or both, its corporate charter, by-
laws or governing document (including without limitation,
the Trust Agreement). The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated by this Agreement, and the Trust
Agreement do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of
the Offerors or the Subsidiaries or the Designated Preferred
Securities pursuant to, or constitute a material breach or
violation of, or constitute a material default under, with
or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws or
governing document (including without limitation, the Trust
Agreement) of the Offerors or the Subsidiaries, or to the
best of such counsel's knowledge, any material contract,
indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license or any other
agreement or instrument to which either Offeror or the
Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or any order,
decree, judgment, franchise, license, Permit, rule or
regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign,
known to such counsel having jurisdiction over the Offerors
or the Subsidiaries or any of their respective properties
which, in each case, is material to the Offerors and the
Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of, or filing, registration or
qualification with, any person (including, without
limitation, any court, governmental body or authority) is
required under Missouri 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.
(ix) To the best of such counsel's knowledge,
holders of securities of the Offerors either do not have any
right that, if exercised, would require the Offerors to
cause such securities to be included in the Registration
Statement or have waived such right. To the best of such
counsel's knowledge, neither the Offerors nor any of the
Subsidiaries is a party to any agreement or other instrument
which grants rights for or relating to the registration of
any securities of the Offerors.
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(x) 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 the
Offerors or the Subsidiaries is or may be a party, and (ii)
no action, suit or proceeding is pending or threatened in
writing against or affecting the Offerors or the
Subsidiaries or any of their properties, before or by any
court or governmental official, commission, board or other
administrative agency, authority or body, or any arbitrator,
wherein an unfavorable decision, ruling or finding could
have a material adverse effect on the consummation of this
Agreement or the issuance and sale of the Designated
Preferred Securities as contemplated herein or the condition
(financial or otherwise), earnings, affairs, business, 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 and is not
so disclosed.
(xi) No authorization, approval, consent or order
of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body
or authority) is required in connection with the
transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus,
except such as have been obtained under the 1933 Act, and
except such as may be required under state securities laws
or Interpretations or Rules of the NASD in connection with
the purchase and distribution of the Designated Preferred
Securities by the Underwriters.
(xii) The Registration Statement and the
Prospectus and any amendments or supplements thereto (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.
(xiii) To the best of such counsel's knowledge,
there are no contracts, agreements, leases or other
documents of a character required to be disclosed in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so
disclosed or filed.
(xiv) The statements under the captions
"Description of Other Capital Stock", "Supervision and
Regulation", "Description of the Preferred Securities",
"Description of the Subordinated Debentures", "Description
of the Guarantee", "Relationship Among the Preferred
Securities, the Subordinated Debentures and the Guarantee",
"Certain Federal Income Tax Consequences", "Book Entry
Issuance" and "ERISA Considerations" in the Prospectus,
insofar as such statements constitute a summary of legal and
regulatory matters, documents or proceedings referred to
therein are accurate in all material respects and fairly
present the information called for with respect to such
legal matters, documents and proceedings, other than
financial and statistical data as to which said counsel
expresses no opinion or belief.
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(xv) Such counsel has been advised by the staff of
the Commission that the Registration Statement has become
effective under the 1933 Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made within the
time period required by Rule 424(b); to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for a stop order are pending or
threatened by the Commission.
(xvi) Except as set forth in the Prospectus,
to the best of such counsel's knowledge, there are no
contractual encumbrances or restrictions, or material legal
restrictions on the ability of the Subsidiaries (A) to pay
dividends or make any other distributions on its capital
stock or to pay indebtedness owed to the Offerors, (B) to
make any loans or advances to, or investments in, the
Offerors or (C) to transfer any of its property or assets to
the Offerors.
(xvii) To the best of such counsel's knowledge,
(A) the business and operations of the Offerors and the
Subsidiaries comply in all material respects with all
statutes, ordinances, laws, rules and regulations applicable
thereto and which are material to the Offerors and the
Subsidiaries on a consolidated basis, except in those
instances where non-compliance would not materially impair
the ability of the Offerors and the Subsidiaries to conduct
their business; and (B) the Offerors and the Subsidiaries
possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all
permits, consents, licenses, franchises and governmental and
regulatory authorizations ("Permits") and required to
conduct their businesses as described in the Prospectus and
which are material to the Offerors and the Subsidiaries on a
consolidated basis, except in those instances where the loss
thereof or non-compliance therewith would not have a
material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries
on a consolidated basis; to the best of such counsel's
knowledge, all such Permits are valid and in full force and
effect, and, to the best of such counsel's knowledge, no
action, suit or proceeding is pending or threatened which
may lead to the revocation, termination, suspension or non-
renewal of any such Permit, except in those instances where
the loss thereof or non-compliance therewith would not
materially impair the ability of the Offerors or the
Subsidiaries to conduct their businesses.
In giving the above opinion, such counsel may state
that, insofar as such opinion involves factual matters, they have
relied upon certificates of officers of the Offerors including,
without limitation, certificates as to the identity of any and
all material contracts, indentures, mortgages, deeds of trust,
loans or credit agreements, notes, leases, franchises, licenses
or other agreements or instruments, and all material permits,
easements, consents, licenses, franchises and government
regulatory authorizations, for purposes of paragraphs (viii),
(xiii) and (xvii) hereof and certificates of public officials.
Such counsel shall also confirm that, in connection
with the preparation of the Registration Statement and
Prospectus, such counsel has participated in conferences with
officers and representatives of the 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
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and Prospectus and such counsel has no reason to believe (A) that the
Registration Statement or any amendment thereto (except for the financial
statements and related schedules and statistical data included
therein or omitted therefrom 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, in the light of the
circumstances under which they were made, not misleading or
(B) that the Prospectus or any amendment or supplement thereto
(except for the financial statements and related schedules and
statistical data 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 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 and Finger, 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 such
counsel, to the effect that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act and, under the Trust
Agreement and the Delaware Business Trust Act, has the trust
power and authority to conduct its business as described in
the Prospectus.
(ii) The Trust Agreement is a legal, valid and
binding agreement of the Trust and the Trustees, and is
enforceable against the Trust and the Trustees, in
accordance with its terms.
(iii) Under the Trust Agreement and the
Delaware Business Trust Act, the execution and delivery of
the Underwriting Agreement by the Trust, and the performance
by the Trust of its obligations thereunder, have been
authorized by all requisite trust action on the part of the
Trust.
(iv) The Designated Preferred Securities have been
duly authorized by the Trust Agreement, and when issued and
sold in accordance with the Trust Agreement, the Designated
Preferred Securities will be, subject to the qualifications
set forth in paragraph (v) below, fully paid and
nonassessable beneficial interest in the assets of the Trust
and entitled to the benefits of the Trust Agreement.
(v) Holders of Designated 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
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Preferred Securities may be obligated to make payments as
set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Preferred
Securities is not subject to preemptive rights.
(vii) The issuance and sale by the Trust of
the Designated Preferred Securities and the Common
Securities, the execution, delivery and performance by the
Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate
(a) the Trust Agreement, or (b) any applicable Delaware law,
rule or regulation.
Such opinion may state that it is limited to the laws
of the State of Delaware and that the opinion expressed in
paragraph (ii) above is subject to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance
and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless
of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
(f) 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 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
law of the United States and the State of Missouri, and upon the
opinions of Lewis, Rice & Fingersh, L.C. and Richards, Layton and
Finger described herein.
(g) On the date of this Agreement and on the Closing
Date (and, if applicable, any Option Closing Date), the
Representative shall have received from KPMG Peat Marwick LLP a
letter, dated the date of this Agreement and the Closing Date
(and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Representative, confirming
that they are independent public accountants with respect to
Company, 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 and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by
the American Institute of Certified Public Accountants as
described in SAS No. 71, "Interim Financial
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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
and 1933 Act Regulations or are not in conformity with U.S.
generally accepted accounting principles applied on a basis
substantially consistent, except as noted in the
Registration Statement, with the basis for the audited
consolidated financial statements of the Company included in
the Registration Statement.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with U.S. generally
accepted auditing standards, consisting of a reading of the
unaudited interim financial statements and other information
referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the
Company, inspection of the minute books of the Company since
the date of the latest audited financial statements of the
Company included 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 shareholders equity of the Company, or any changes,
decreases or increases in other items specified by the
Underwriters, in each case as compared with amounts
shown in the latest unaudited interim consolidated
statement of financial condition of the Company
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 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 Representative, in each
case as compared with the comparable period of the
preceding year and with any other period of
corresponding length specified by the Underwriters,
except in each case for 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
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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 Underwriters which are derived from the
general accounting records and consolidated financial
statements of the Company which appear in the Registration
Statement specified by the Underwriters 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
exceptions from such agreement specified in Clause (iv) above, it
shall be a further condition to the obligations of the
Underwriters that the Representative shall have determined, after
discussions with officers of the Company 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 Representative, or (z)
reflect a material change in items specified in Clause (iv) above
from the amounts shown in the Preliminary Prospectus distributed
by the Underwriters in connection with the offering contemplated
hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option
Closing Date, you shall have received certificates of the chief
executive officer and the chief financial and accounting officer
of the Company, which certificates shall be deemed to be made on
behalf of the Company dated as of the Closing Date and, if
applicable, the Option Closing Date, evidencing satisfaction of
the conditions of Section 6(a) and stating that (i) the
representations and warranties of the Company set forth in
Section 2(a) hereof are accurate as of the Closing Date and, if
applicable, the Option Closing Date, and that the Offerors have
complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to such
Closing Date; (ii) since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change in the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis; (iii) since such dates
there has not been any material transaction entered into by the
Offerors or the Subsidiaries other than transactions in the
ordinary course of business; and (iv) 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 order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and (v) covering such other matters
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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.
(i) 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
satisfied by the Trust on or prior to the Closing Date and since
the most recent date as of which information is given in the
Prospectus, except as contemplated by the Prospectus, the Trust
has not incurred any material liabilities or obligations, direct
or contingent, or entered into any material transactions not in
the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise)
of the Trust.
(j) On the Closing Date, you shall have received duly
executed counterparts of the Trust Agreement, the Guarantee, the
Indenture and the Expense Agreement.
(k) 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.
(l) 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 agree to jointly and severally
indemnify and hold harmless each Underwriter, each of its
directors, officers and agents, and each person, if any, who
controls any Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and
reasonable attorney fees and expenses), joint or several, arising
out of or based (i) upon any untrue statement or alleged untrue
statement of a material fact made by the Company or the Trust
contained in Section 2(a) of this Agreement (or any certificate
delivered by the Company or the Trust pursuant hereto Section
6(l) hereto) or the registration statement as originally filed or
the Registration Statement,
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any Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, (ii) upon any blue sky application or other document
executed by the Company or the Trust specifically for that purpose or based
upon written information furnished by the Company or the Trust filed
in any state or other jurisdiction in order to qualify any of the
Designated Preferred Securities under the securities laws thereof
(any such application, document or information being hereinafter
referred to as a "Blue Sky Application"), (iii) any omission or
alleged omission to state a material fact in the registration
statement as originally filed or the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application) required to
be stated therein or necessary to make the statements therein not
misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of
investigation and attorney 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 of supplement thereto, or arising
out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or
(iv) the enforcement of this indemnification provision or the
contribution provisions of Section 7(d); and shall reimburse each
such indemnified party for any reasonable legal or other expenses
as incurred, but in no event less frequently than 30 days after
each invoice is submitted, incurred by them in connection with
investigating or defending against or appearing as a third-party
witness in connection with any such loss, claim, damage,
liability or action, notwithstanding the possibility that
payments for such expenses might later be held to be improper, in
which case such payments shall be promptly refunded; provided,
---------
however, that the Offerors shall 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 information furnished in writing to the
Offerors through the you by or on behalf of any Underwriter
expressly for use therein beneath the heading "Underwriting;"
provided, that the indemnification contained in this
- --------
paragraph with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or of any 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 information relating to such Underwriter
furnished in writing to an Offeror through such Underwriter by or
on behalf of it expressly for use in connection with the
registration statement as originally filed, the Registration
Statement, any
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Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
beneath the heading "Underwriting" or in a Blue Sky Application. The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to any such indemnified party.
(c) If any action or claim shall be brought or
asserted against any indemnified party or any person controlling
an indemnified party in respect of which indemnity may be sought
from the indemnifying party, such indemnified party or
controlling person shall promptly notify the indemnifying party
in writing, and the indemnifying party shall assume the defense
thereof, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of all
expenses; provided, however, that the failure so to notify
-----------------
the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under
such paragraph, and further, shall only relieve it from liability
under such paragraph to the extent prejudiced thereby. Any
indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such indemnified party or
such controlling person unless (i) the employment thereof has
been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the
defense or to employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action
(including any impleaded parties) include both such indemnified
party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been
advised by such counsel that there may be one or more legal
defenses available to it that are different from or in addition
to those available to the indemnifying party (in which case, if
such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense
of such action on behalf of such indemnified party or such
controlling person) it being understood, however, that the
indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions
in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any
time and for all such indemnified party and controlling persons,
which firm shall be designated in writing by the indemnified
party (and, if such indemnified parties are Underwriters, by you,
as Representative). 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),
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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 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 Underwriters
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation.
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For purposes of this paragraph (d), each person who
controls 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 and the representations and
warranties of the Offerors set forth in this Agreement shall
remain operative and in full force and effect, regardless of
(i) any investigation made by or on behalf of 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 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 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
Representative materially impairs the investment quality of the
Designated Preferred Securities;
(c) There has been since the respective dates as of
which information is given in the Registration Statement or the
Prospectus, any materially adverse change in, or any development
which is reasonably likely to have a material adverse effect on,
the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and
the Subsidiaries on a consolidated basis, whether or not arising
in the ordinary course of business;
(d) There has occurred any outbreak of hostilities or
other calamity or crisis or material change in general economic,
political or financial conditions, or internal conditions, the
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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 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, Missouri, Illinois, Texas or California
authorities; or
(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 such Designated Preferred Securities if
the aggregate number of Designated Preferred Securities to be
purchased by such non-defaulting Underwriters shall exceed 110%
of the aggregate underwriting commitments set forth in Schedule I
----------
hereto, and provided further, that no non-defaulting Underwriter
----------------
shall be obligated to purchase 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 Representative
may in its 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 Representative does 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 Representative to purchase such Designated
Preferred Securities on such terms.
In the event that the Representative 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.
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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 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 Representative shall
release the Designated Preferred Securities for initial public
offering. The Representative shall notify the Offerors
immediately after it has taken any action which causes this
Agreement to become effective.
Until such time as this Agreement shall have become
effective, it may be terminated by the Offerors, by notifying you
or by you, as Representative 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 or any termination or cancellation of this Agreement
and shall survive delivery of and payment for the Designated
Preferred Securities.
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 11901 Olive Boulevard, St. Louis, Missouri 63141,
Attention: Allen H. Blake (with a
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copy to Lewis, Rice & Fingersh, L.C., 500 North Broadway, Suite 2000, St.
Louis, Missouri 63102, Attention: Thomas C. Erb, Esq.; and notices to the
Underwriters shall be sent to Stifel, Nicolaus & Company, Incorporated, 500
North Broadway, Suite 1500, St. Louis, Missouri 63102, Attention:
Rick E. Maples (with a copy to Bryan Cave LLP, 211 North
Broadway, Suite 3600, St. Louis, Missouri 63102, Attention:
Frederick W. Scherrer, Esq.). In all dealings with the Company
under this Agreement, Stifel, Nicolaus & Company, Incorporated
shall act as representative 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 by Stifel, Nicolaus & Company,
Incorporated on behalf of the Underwriters, as if the same shall
have been made or given in writing by the 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.
If the foregoing is in accordance with the your
understanding of our agreement, please sign and return to us a
counterpart hereof, whereupon this shall become a binding
agreement between the Company, the Trust and you in accordance
with its terms.
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Very truly yours,
FIRST BANKS, INC.
By:------------------------------
Name:
Title:
FIRST PREFERRED CAPITAL TRUST
By:------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of ----------- --, 1997.
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:---------------------------
Name:
Title:
For itself and as Representative of the several Underwriters
named in Schedule I hereto.
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SCHEDULE I
----------
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EXHIBIT A
LIST OF SUBSIDIARIES
39
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2,400,000 Preferred Securities
First Preferred Capital Trust
----% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security
AGREEMENT AMONG UNDERWRITERS
----------------------------
------------, 1997
Stifel, Nicolaus & Company, Incorporated
As Representative of the Several Underwriters
500 North Broadway, Suite 1500
St. Louis, Missouri 63102
1. UNDERWRITING AGREEMENT. We understand that First
Banks, Inc., a Missouri corporation (the "Company") and its
financing subsidiary, First Preferred Capital Trust, a Delaware
business trust (the "Trust", and hereinafter together with the
Company, the "Offerors"), propose to enter into an underwriting
agreement in substantially the form attached (the "Underwriting
Agreement") with you and other prospective underwriters (including
us) (collectively, the "Underwriters") providing for the several
purchase by the Underwriters from the Trust 2,400,000 of the
Trust's ----% Cumulative Trust Preferred Securities with a
liquidation amount of $25.00 per Preferred Security upon the terms
stated in the Underwriting Agreement (such Preferred Securities are
herein referred to as the "Firm Preferred Securities"), in which we
will agree in accordance with the terms thereof to purchase the
number of Firm Preferred Securities set forth opposite our name in
Schedule II thereto. In addition, the Trust proposes to grant to
the Underwriters, upon the terms stated in the Underwriting
Agreement, the right to purchase up to an additional 360,000
Preferred Securities (the "Option Preferred Securities"), identical
to the Firm Preferred Securities, for the sole purpose of covering
over-allotments in the sale of the Firm Preferred Securities. The
Firm Preferred Securities and the Option Preferred Securities are
collectively referred to herein as the "Designated Preferred
Securities."
2. REGISTRATION STATEMENT AND PROSPECTUS. The
Designated Preferred Securities are more particularly described in
a registration statement on Form S-2 (Registration Nos. 333------
and 333-------01) filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the
"Act"). Amendments to such registration statement have been or are
being filed, or a form of prospectus is being flied pursuant to
Rule 424(b) and Rule 430A under the Act, in which, with our consent
hereby confirmed, we have been named as one of the Underwriters of
the Designated Preferred Securities. A copy of the registration
statement as filed and a copy of each amendment as filed (excluding
exhibits) have heretofore been delivered to us. We confirm that we
have examined the registration statement, including amendments
thereto, relating to the Designated Preferred Securities, as filed
42
with the Commission, that we are willing to accept the
responsibilities of an Underwriter under the Act in respect of the
registration statement, and we are willing to proceed with a public
offering of the Designated Preferred Securities in the manner
contemplated. The registration statement and the related
prospectus may be further amended, but no such amendment or change
shall release or affect our obligations hereunder or under the
Underwriting Agreement. As used herein, the terms "Registration
Statement" and "Prospectus" shall have the same meanings as specified
in the Underwriting Agreement.
3. AUTHORITY OF REPRESENTATIVE. We hereby authorize
you, acting on our behalf, as our representative (a) to complete,
execute, and deliver the Underwriting Agreement, to determine the
public offering price of the Designated Preferred Securities and
the underwriting discount with respect thereto and to make such
variations, if any, as in your judgment are appropriate and are not
material, provided that the respective amount of Designated
Preferred Securities set forth opposite our name in Schedule II
thereto shall not be increased without our consent, except as
provided herein, (b) to waive performance or satisfaction by the
Offerors of obligations or conditions included in the Underwriting
Agreement if in your judgment such waiver will not have a material
adverse effect upon the interests of the Underwriters, and (c) to
take such actions as in your discretion may be necessary or
advisable to carry out the Underwriting Agreement, this Agreement,
and the transactions for the accounts of the several Underwriters
contemplated thereby and hereby. We also authorize you to
determine all matters relating to the public advertisement of the
Designated Preferred Securities.
4. PUBLIC OFFERING. We authorize you, with respect to
any Designated Preferred Securities which we so agree to purchase,
to reserve for sale, and on our behalf to sell, to dealers selected
by you (including you or any of the other Underwriters, such
dealers so selected being hereinafter called "Selected Dealers") and
to others all or part of our Designated Preferred Securities as you
may determine. Reservations for sales to persons other than
Selected Dealers shall be as nearly as practicable in proportion to
the respective underwriting obligations of the Underwriters, unless
you agree to a smaller proportion at the request of an Underwriter.
Reservations for sales to Selected Dealers need not be in such
proportion. All sales of reserved Designated Preferred Securities
shall be as nearly as practicable in proportion to the respective
reservations as calculated from day to day.
In your discretion, from time to time, you may add to the
reserved Designated Preferred Securities any Designated Preferred
Securities retained by us remaining unsold, and you may upon our
request release to us any of our Designated Preferred Securities
reserved but not sold. Any Designated Preferred Securities so
released shall not thereafter be deemed to have been reserved.
Upon termination of this Agreement, or prior thereto at your
discretion, you shall deliver to our account any of our Designated
Preferred Securities reserved but not sold and delivered, except
that if the aggregate of all reserved but unsold and undelivered
Designated Preferred Securities is less than ------------
Designated Preferred Securities, you are authorized to sell such
Designated Preferred Securities for the accounts of the several
Underwriters at such price or prices as you may determine.
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Sales of reserved Designated Preferred Securities shall
be made to Selected Dealers at the public offering price less the
Selected Dealers' Concession pursuant to the Selected Dealer
Agreement in substantially the form attached hereto, and to others
at the public offering price. Underwriters and Selected Dealers
may reallow a concession to other dealers as set forth in the
Selected Dealer Agreement.
After advice from you that the Designated Preferred
Securities are released for sale to the public, we will offer to
the public in conformity with the terms of the offering set forth
in the Prospectus such of our Designated Preferred Securities as
you advise us are not reserved. We authorize you after the
Designated Preferred Securities are released for sale to the
public, in your discretion, to change the public offering price of
the Designated Preferred Securities and the concession, and to buy
Designated Preferred Securities for our account from Selected
Dealers at the public offering price less such amount not in excess
of the Selected Dealers' Concession as you may determine.
Sales of Designated Preferred Securities between
Underwriters may be made with your prior consent, or as you deem
advisable for blue sky purposes.
We agree that we will not sell to any accounts over which
we exercise discretionary authority any Designated Preferred
Securities which we have agreed to purchase under the Underwriting
Agreement.
5. ADDITIONAL PROVISIONS REGARDING SALES. You may, in
your discretion, charge our account with an amount equal to the
Selected Dealers' Concession in respect of each Designated
Preferred Security purchased under the Underwriting Agreement by
you and not sold by you for our account (and each Designated
Preferred Security which you believe has been substituted therefor)
which may be delivered against a purchase contract made by you for
our account prior to the later of (a) the termination of all of the
provisions referred to in Section 10 hereof or (b) the covering by
you of any short position created by you for our account, or in
lieu of such charge, require us to repurchase on demand at the
total cost thereof (including commissions), plus transfer taxes,
any such Designated Preferred Security so delivered.
6. PAYMENT AND DELIVERY. At or before 9:00 a.m., New
York City time, on the Closing Date (as defined in the Underwriting
Agreement) and on each Option Closing Date (as defined in the
Underwriting Agreement), we will deliver to you at your office at
500 North Broadway, Suite 1500, St. Louis, Missouri 63102,
Attention: Syndicate Department, a certified or bank cashiers'
check payable to your order, in clearing house funds, in the amount
equal to the initial offering price set forth in the Prospectus
less the Selected Dealers' Concession in respect of the number of
Firm Preferred Securities or Option Preferred Securities, as the
case may be, to be purchased by us pursuant to the Underwriting
Agreement. We authorize you for our account to make payment of the
purchase price for the Designated Preferred Securities to be
purchased by us against delivery to you of such Designated
Preferred Securities, and the difference between such price and the
amount of our check delivered to you therefor shall be credited to
our account. Unless we notify you at least three full business
days prior to such Closing Date to make other
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arrangements, you may, in your discretion, advise the Offerors to prepare our
certificates in our name. If you have not received our funds as requested,
you may in your discretion make such payment on our behalf, in which event we
will reimburse you promptly. Any such payment by you shall not relieve us
from any of our obligations hereunder or under the Underwriting Agreement.
We authorize you for our account to accept delivery of
our Designated Preferred Securities from the Trust and to hold such
of our Designated Preferred Securities as you have reserved for
sale to Selected Dealers and others and to deliver such Designated
Preferred Securities against such sales. You will deliver to us
our unreserved Designated Preferred Securities as promptly as
practicable.
Notwithstanding the foregoing provisions of this
Section 6, if you so notify us, payment for and delivery of our
Designated Preferred Securities may be made through the facilities
of The Depository Trust Company, if we are a member, unless we have
otherwise notified you prior to a date to be specified by you, or,
if we are not a member, settlement may be made through a
correspondent who is a member pursuant to instructions we may send
to you prior to such specified date.
As promptly as practicable after you receive payment for
reserved Designated Preferred Securities sold for our account, you
will remit to us the purchase price paid by us for such Designated
Preferred Securities and credit or debit our account with the
difference between the sale price and such purchase price.
7. AUTHORITY TO BORROW. In connection with the
transactions contemplated in the Underwriting Agreement or this
Agreement, we authorize you, in your discretion, to advance your
own funds for our account, charging current interest rates, to
arrange loans for our account and in connection therewith to
execute and deliver any notes or other instruments and hold or
pledge as security any of our Designated Preferred Securities or
any Preferred Securities of the Trust purchased for our account.
Any lender may rely upon your instructions in all matters relating
to any such loan.
Any of our Designated Preferred Securities and any
Preferred Securities of the Trust purchased for our account held
by you may from time to time be delivered to us for carrying
purposes, and any such securities will be delivered to you upon
demand.
8. STABILIZATION AND OTHER MATTERS. We authorize you
in your discretion to make purchases and sales of the Preferred
Securities of the Trust for our account in the open market or
otherwise, for long or short account, on such terms as you deem
advisable and in arranging sales to overallot. If you have
purchased Preferred Securities for stabilizing purposes prior to
the execution of this Agreement, such purchases shall be treated
as having been made pursuant to the foregoing authorization. We
also authorize you, either before or after the termination of the
offering provisions of this Agreement, to cover any short position
incurred pursuant to this Section on such terms as you deem
advisable. All such purchases and sales and
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over-allotments shall be made for the accounts of the several Underwriters as
nearly as practicable in proportion to their respective underwriting
obligations. Our net commitment under this Section (excluding any
commitment incurred under the Underwriting Agreement upon exercise
of the right to purchase Option Preferred Securities) shall not,
at the end of any business day, exceed 15 percent of our maximum
underwriting obligation. We will on your demand take up and pay
for at cost any Preferred Securities so purchased or sold or over-
allotted for our account, and, if any other Underwriter defaults
in its corresponding obligation, we will assume our proportionate
share of such obligation without relieving the defaulting
Underwriter from liability. We will be obligated in respect of
purchases and sales made for our account hereunder whether or not
any proposed purchase of the Designated Preferred Securities from
the Trust is consummated. The existence of this provision is no
assurance that the price of the Designated Preferred Securities
will be stabilized or that, if stabilizing is commenced, it may not
be discontinued at any time.
We agree to advise you, from time to time upon your
request, during the term of this Agreement, of the number of
Designated Preferred Securities retained by us remaining unsold,
and will, upon your request, sell to you for the accounts of one
or more of the several Underwriters such number of such Designated
Preferred Securities as you may designate at such prices, not less
than the net price to Selected Dealers nor more than the public
offering price, as you may determine.
If you effect any stabilizing purchase pursuant to this
Section 8, you will notify us promptly of the date and time when
the first stabilizing purchase was effected and the date and time
when stabilizing was terminated. You will retain such information
as is required to be retained by you as "Manager" pursuant to Rule
17a-2 under the Securities Exchange Act of 1934, as amended (the
"1934 Act"). We agree that we will not effect any stabilizing
purchases without your express authorization, and, if any purchases
are effected, we agree to furnish to you not later than three
business days following the date upon which stabilization was
commenced such information as is required under Rule 17a-2(d).
With respect to the Underwriting Agreement, you are also
authorized in your discretion (a) to exercise the option therein as
to all or any part of the Option Preferred Securities, and to
terminate such option in whole or in part prior to its expiration,
(b) to postpone the Closing Date and the Option Closing Date
referred to in the Underwriting Agreement, and any other time or
date specified therein, (c) to exercise any right of cancellation
or termination, (d) to arrange for the purchase by other persons
(including yourselves or any other Underwriter) of any Designated
Preferred Securities not taken up by any defaulting Underwriter and
(e) to consent to such other changes in the Underwriting Agreement
as in your judgment do not materially adversely affect the
substance of our rights and obligations thereunder.
We further agree that (a) prior to the termination of
this Agreement we will not, directly or indirectly, bid for or
purchase any Designated Preferred Securities for our own account,
except as provided in this Agreement and in the Underwriting
Agreement, and (b) prior to the completion (as defined in Rule 10b-6
under the 1934 Act) of our participation in this
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distribution, we will otherwise comply with Rule 10b-6.
9. ALLOCATION OF EXPENSES AND SETTLEMENT. We authorize
you to charge our account with (a) all transfer taxes on Designated
Preferred Securities purchased by us pursuant to the Underwriting
Agreement and sold by you for our account, (b) Selected Dealers'
Concessions in connection with the purchase, marketing and sale of
the Designated Preferred Securities for our account, and (c) our
proportionate share (based upon our underwriting obligation) of all
other expenses incurred by you under this Agreement and in
connection with the purchase, carrying, sale and distribution of
the Designated Preferred Securities. Your determination of the
amount and allocation of such expenses shall be conclusive. In the
event of the default of any Underwriter in carrying out its
obligations hereunder, the expenses chargeable to such Underwriter
pursuant to this Agreement and not paid by it, as well as any
additional losses or expenses arising from such default, may be
proportionately charged by you against the other Underwriters not
so defaulting (including such other persons who purchase Designated
Preferred Securities upon a default by an Underwriter pursuant to
Section 11 hereof), without, however, relieving such defaulting
Underwriter from its liability therefor.
As soon as practicable after termination of this
Agreement, the accounts hereunder will be settled, but you may
reserve from distribution such amount as you deem necessary to
cover possible additional expenses. You may at any time make
partial distributions of credit balances or call for payment of
debit balances. Any of our funds in your hands may be held with
your general funds without accountability for interest.
Notwithstanding the termination of this Agreement or any
settlement, we will pay (a) our proportionate share (based on our
underwriting obligation) of all expenses and liabilities which may
be incurred by or for the accounts of the Underwriters, including
any liability based on the claim that the Underwriters constitute
an association, unincorporated business or other separate entity,
and of any expenses incurred by you or any other Underwriter with
your approval in contesting any such claim or liability, and (b)
any transfer taxes paid after such settlement on account of any
sale or transfer for our account.
10. TERMINATION. The offering provisions of this
Agreement shall terminate 30 days from the date hereof unless
extended by you. You may extend said provisions for a period or
periods not exceeding an additional 30 days in the aggregate,
provided that the Selected Dealer Agreements, if any, are similarly
extended. Whether extended or not, said provisions may be
terminated in whole or in part by notice from you.
11. DEFAULT BY UNDERWRITERS. Default by one or more
Underwriters in respect of their obligations hereunder or under the
Underwriting Agreement shall not release us from any of our
obligations or in any way affect the liability of any defaulting
Underwriter to the other Underwriters for damages resulting from
such default. In case of such default by one or more Underwriters,
you are authorized to increase, pro rata with other non-defaulting
Underwriters, the number of Designated Preferred Securities which
we shall be obligated to purchase pursuant to the Underwriting
Agreement, provided that the aggregate amount of all such increases
for our account shall not exceed our pro rata share of -----------
Designated Preferred
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Securities; and you are further authorized to arrange, but shall not be
obligated to arrange, for the purchase by other persons, who may include
yourselves or other Underwriters, of all or a portion of any aggregate amount
not taken up. In the event any such arrangements are made, the respective
numbers of Designated Preferred Securities to be purchased by the
non-defaulting Underwriters and by any such other persons shall be
taken as the basis for the underwriting obligations under this
Agreement.
12. POSITION OF REPRESENTATIVE. Except as otherwise
specifically provided in this Agreement, you shall have full
authority to take such action as you may deem advisable in respect
of all matters pertaining to the Underwriting Agreement and this
Agreement and in connection with the purchase, carrying, sale, and
distribution of the Designated Preferred Securities (including
authority to terminate the Underwriting Agreement as provided
therein). You shall be under no liability to us for or in respect
of the value of the Designated Preferred Securities or the validity
or the form thereof, the Registration Statement, any preliminary
prospectus, the Prospectus, the Underwriting Agreement, or other
instruments executed by the Offerors, or others; or for or in
respect of the issuance, transfer, or delivery of the Designated
Preferred Securities; or for the performance by the Offerors, or
others of any agreement on its or their part; nor shall you be
liable under any of the provisions hereof or for any matters
connected herewith, except for your own want of good faith, for
obligations expressly assumed by you in this Agreement and for any
liabilities imposed upon you by the Act. No obligations on your
part shall be implied or inferred herefrom. Authority with respect
to matters to be determined by you, or by you and the Offerors,
pursuant to the Underwriting Agreement, shall survive the
termination of this Agreement.
In taking all actions hereunder, except in the
performance of your own obligations hereunder and under the
Underwriting Agreement, you shall act only as the representative
of each of the Underwriters. The commitments and liabilities of
each of the several Underwriters are several in accordance with
their respective purchase obligations and are not joint or joint
and several. Nothing contained herein shall constitute the
Underwriters partners or render any of them liable to make payments
otherwise than as herein provided. If for federal income tax
purposes the Underwriters should be deemed to constitute a
partnership, then each Underwriter elects to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A, of the Internal
Revenue Code of 1986, as amended, and agrees not to take any
position inconsistent with such election. Each Underwriter
authorizes Stifel, Nicolaus & Company, Incorporated, in its
discretion, on behalf of such Underwriter, to execute such evidence
of such election as may be required by the Internal Revenue
Service.
13. COMPENSATION TO REPRESENTATIVE. As compensation for
your services in connection with the purchase of the Designated
Preferred Securities and the management of the public offering of
the Designated Preferred Securities, we agree to pay you and
authorize you to charge our account with an amount equal to
$-------------- per share of the Designated Preferred Securities
which we have agreed to purchase pursuant to the Underwriting
Agreement.
14. INDEMNIFICATION AND FUTURE CLAIMS. Each
Underwriter, including you,
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agrees to indemnify, hold harmless and reimburse each other Underwriter and
each person, if any, who controls any other Underwriter within the meaning of
Section 15 of the Act, and any successor of any other Underwriter, to the
extent that, and upon the terms upon which, each Underwriter will be
obligated pursuant to the Underwriting Agreement to indemnify, hold
harmless and reimburse the Offerors, its directors, officers, and
controlling persons, therein specified.
In the event that at any time any person other than an
Underwriter asserts a claim against one or more of the Underwriters
or against you as representative of the Underwriters arising out of
an alleged untrue statement or omission in the Registration
Statement (or any amendment thereto) or in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or relating to any transaction contemplated by this
Agreement, we authorize you to make such investigation, to retain
such counsel for the Underwriters and to take such action in the
defense of such claim as you may deem necessary or advisable. You
may settle such claim with the approval of a majority in interest
of the Underwriters. We will pay our proportionate share (based
upon our underwriting obligation) of all expenses incurred by you
(including the fees and expenses of counsel for the Underwriters)
in investigating and defending against such claim and our
proportionate share of the aggregate liability incurred by all
underwriters in respect of such claim (after deducting any
contribution or indemnification obtained pursuant to the
Underwriting Agreement, or otherwise, from persons other than
Underwriters), whether such liability is the result of a judgment
against one or more of the Underwriters or the result of any such
settlement. There shall be credited against any amount paid or
payable by us pursuant to this paragraph any loss, damage,
liability or expense which is incurred by us as a result of any
such claim asserted against us, and if such loss, claim, damage,
liability, or expense is incurred by us as a result of any such
claim against us, and if such loss, claim, damage, liability, or
expense is incurred by us subsequent to any payment by us pursuant
to this paragraph, appropriate provision shall be made to effect
such credit, by refund or otherwise. Any Underwriter may retain
separate counsel at its own expense. A claim against or liability
incurred by a person who controls an Underwriter shall be deemed to
have been made against or incurred by such Underwriter. In the
event of default by any Underwriter in respect of its obligations
under this Section, the non-defaulting Underwriters shall be
obligated to pay the full amount thereof in the proportions that
their respective underwriting obligations bear to the underwriting
obligations of all non-defaulting Underwriters, without relieving
such defaulting Underwriter of its liability hereunder. Our
agreements contained in this Section will remain in full force and
effect regardless of any investigation made by or on behalf of such
other Underwriter or controlling person and will survive the
delivery of and payment for the Designated Preferred Securities and
the termination of this Agreement and the similar agreements
entered into with the other Underwriters.
15. BLUE SKY AND OTHER MATTERS. You will not have any
responsibility with respect to the right of any Underwriter or
other person to sell the Designated Preferred Securities in any
jurisdiction notwithstanding any information you may furnish in
that connection. We authorize you to file a New York Further State
Notice, if required, and to make and carry out on our behalf any
agreements which you may deem necessary in order to procure
registration or
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qualification of any of the Designated Preferred Securities in any
jurisdiction, and we will at your request make such payments, and furnish to
you such information, as you may deem required by reason of any such
agreements.
We authorize you to file on behalf of the several
Underwriters with the National Association of Securities Dealers,
Inc. (the "NASD") such documents and information, if any, which are
available or have been furnished to you for filing pursuant to the
applicable rules, statements, and interpretations of the NASD.
16. TITLE TO DESIGNATED PREFERRED SECURITIES. The
Designated Preferred Securities purchased by the respective
Underwriters shall remain the property of such Underwriters until
sold and no title to any such Designated Preferred Securities shall
in any event pass to you by virtue of any of the provisions of this
Agreement.
17. CAPITAL REQUIREMENTS. We confirm that the
incurrence by us of our obligations under this Agreement and under
the Underwriting Agreement will not place us in violation of Rule
15c3-1 under the 1934 Act or of any applicable rules relating to
capital requirements of any securities exchange or association to
which we are subject.
18. LIABILITY FOR FUTURE CLAIMS. Neither any statement
by you of any credit or debit balance in our account nor any
reservation from distribution to cover possible additional expenses
relating to the Designated Preferred Securities will constitute any
representation by you as to the existence or nonexistence of
possible unforeseen expenses or liabilities of or charges against
the several Underwriters. Notwithstanding the distribution of any
net credit balance to us, we will be and remain liable for, and
will pay on demand, (a) our proportionate share (based upon our
underwriting obligation) of all expenses and liabilities which may
be incurred by or for the accounts of the Underwriters, including
any liability which may be incurred by the Underwriters or any of
them based on the claim that the Underwriters constitute an
association, unincorporated business, partnership, or any separate
entity, and (b) any transfer taxes paid after such settlement on
account of any sale or transfer for our account.
19. ACKNOWLEDGMENT OF REGISTRATION STATEMENT, ETC. We
hereby confirm that we have examined the Registration Statement
(including any amendments or supplements thereto) and Prospectus
relating to the Designated Preferred Securities filed with the
Commission, that we are willing to accept the responsibilities of
an underwriter thereunder and that we are willing to proceed as
therein contemplated. We confirm that we have authorized you to
advise the Offerors on our behalf (a) as to the statements to be
included in any preliminary prospectus and in the Prospectus
(including any supplement thereto) relating to the Designated
Preferred Securities under the heading "Underwriting," insofar as
they relate to us, and (b) that there is no information about us
required to be stated in said Registration Statement or said
preliminary prospectus or the Prospectus (including any supplement
thereto) other than as set forth in the Underwriters' Questionnaire
previously delivered by us to you and the Offerors. We understand
that the aforementioned documents are subject to further change and
that we will be
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supplied with copies of any amendment or amendments to the Registration
Statement and of any amended Prospectus promptly, if and when received by you,
but the making of such changes and amendments will not release us or affect
our obligations hereunder or under the Underwriting Agreement.
20. NOTICES AND GOVERNING LAW. Any notice from you to
us shall be mailed, telephoned, or telegraphed to us at our address
as set forth in the Underwriters' Questionnaire. Any notice from
us to you shall be deemed to have been duly given if mailed,
telephoned or telegraphed to you at 500 North Broadway, Suite
1500, St. Louis, Missouri 63102, Attention: Syndicate Department.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Missouri.
21. OTHER PROVISIONS. We represent that we are actually
engaged in the investment banking or securities business and that
we are a member in good standing of the NASD or, if we are not such
a member, that we are a foreign dealer not eligible for membership
in the NASD and that we will not offer or sell any Designated
Preferred Securities in, or to persons who are nationals or
residents of, the United States of America. In making sales of
Designated Preferred Securities, if we are such a member, we agree
to comply with all applicable rules of the NASD, including, without
limitation, the NASD's Interpretation with respect to Free-Riding
and Withholding and Section 24 of Article III of the NASD's Rules
of Fair Practice, or if we are a foreign dealer, we agree to comply
with such Interpretation and Sections 8, 24 and 36 of such Article
as though we were such a member, and with Section 25 as that
Section applies to a non-member broker or dealer in a foreign
country. We confirm that you have heretofore delivered to us such
number of copies of the Prospectus as have been reasonably
requested by us, and we further confirm that we have complied and
will comply with Rule 15c2-8 under the 1934 Act concerning delivery
of each preliminary prospectus and the Prospectus, and that we will
furnish to persons who receive a confirmation of sale a copy of the
Prospectus filed pursuant to Rule 424(b) or Rule 424(c) under the
Act. We are aware of our statutory responsibilities under the Act,
and you are authorized on our behalf to so advise the Commission.
22. COUNTERPARTS. This Agreement may be signed in any
number of counterparts which, taken together, shall constitute one
and the same instrument, and you may confirm the execution of such
counterparts by facsimile signature.
-------------------------------------------------
As Attorney-in-Fact for each of the several
Underwriters named in Schedule II to the
Underwriting Agreement
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Confirmed as of the date first above written.
STIFEL, NICOLAUS & COMPANY, INCORPORATED
As Representative of the Several Underwriters
By: ----------------------------------------------------
Name:
Title:
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