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1,000,000 Preferred Securities
1st Source Capital Trust II
Floating Rate Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
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March ___, 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:
1st Source Corporation, an Indiana corporation (the "Company"), and
its financing subsidiary, 1st Source Capital Trust II, a Delaware business trust
(the "Trust", and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell to the several underwriters listed on
Schedule I hereto (the "Underwriters"), pursuant to the terms of this
Agreement, 1,000,000 of the Trust's Floating Rate 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 1,000,000 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 100,000 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 SECURITIES;
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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 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
1,000,000.
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 100,000 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 1,000,000. Because the proceeds from
the sale of the Option Preferred Securities will be used to purchase from the
Company its Debentures, the Company shall pay to the Underwriters a
commission of $_____ per Option Preferred Security for each Option Preferred
Security purchased (the "Option Preferred Securities Commission"). The
option hereby granted (the "Option") shall expire 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 March
_____, 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 same day funds, in the amount of the Purchase Price therefor, against
delivery by or on behalf of the Trust to you for the respective accounts of
the several Underwriters of certificates for the Designated Preferred
Securities to be purchased by the Underwriters.
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 such authorized denominations and registered in such names as you shall
request in writing not later than 12:00 noon, St. Louis time, two business
days prior to the Closing Date and, if applicable, the Option Closing Date.
Certificates for Designated Preferred Securities to be purchased by the
Underwriters shall be made available by the Offerors to you for inspection,
checking and packaging at such office as you may designate in writing not
later than 1:00 p.m., St. Louis time, on the last business day prior to the
Closing Date and, if applicable, on the last business day prior to the Option
Closing Date.
Time shall be of the essence, and delivery of the certificates for
the 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, to be dated as of March _____, 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-3 (File Numbers 333-_______,
333-________-01 and 333-________-02) for the registration of the
Designated Preferred Securities, the Guarantee and $27,500,000
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
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apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Offerors by
any of the Underwriters expressly for inclusion in the Prospectus
beneath the heading "Underwriting" and the last sentence on the cover
page of the Prospectus (such information referred to herein as the
"Underwriters' Information").
(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
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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
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representation and warranty does not apply to Underwriters'
Information.
(vi) (A) The Company is duly organized, validly existing
and in good standing under the laws of the State of Indiana, with
full corporate and other power and authority to own, lease and
operate its properties and conduct its business as described in and
contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted and is duly registered
as a bank holding company under the Bank Holding Company Act of 1956,
as amended (the "BHC Act").
(B) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the
Delaware Business Trust Act with the power and authority (trust and
other) to own its property and conduct its business as described in
the Registration Statement and Prospectus, to issue and sell its
common securities (the "Common Securities") to the Company pursuant
to the Trust Agreement, to issue and sell the Designated Preferred
Securities, to enter into and perform its obligations under this
Agreement and to consummate the transactions herein contemplated; the
Trust has no subsidiaries and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or the ownership of its property requires such
qualification, 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 10 subsidiaries. They are listed on
Exhibit A attached hereto and incorporated herein (the
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"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.
1st Source Bank is referred to as the "Bank". Each Subsidiary is a
bank, corporation or business trust duly organized, validly existing
and in good standing under the laws of its respective jurisdiction of
incorporation. Each such Subsidiary has full corporate and other
power and authority to own, lease and operate its properties and to
conduct its business as described in and contemplated by the
Registration Statement and the Prospectus (or, if
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the Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted. The deposit accounts
of the Bank are insured by the Bank Insurance Fund administered by
the Federal Deposit Insurance Corporation (the "FDIC") up to the
maximum amount provided by law, except to the extent the Prospectus
discloses such deposit accounts are insured by the Savings
Association Insurance Fund administered by the FDIC ("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 and conditions set forth in this
Agreement, the Trust Agreement, the Registration
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Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). All corporate
and trust action required to be taken by the Offerors for the
authorization, issuance, sale and delivery of the Designated
Preferred Securities in accordance with such terms and conditions has
been validly and sufficiently taken. The Designated Preferred
Securities, when delivered in accordance with this Agreement, will be
duly and validly issued and outstanding, will be fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust, will be entitled to the benefits of the Trust Agreement, will
not be issued in violation of or subject to any preemptive or similar
rights, and will conform to the description thereof in the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and the
Trust Agreement. None of the Designated Preferred Securities,
immediately prior to delivery, will be subject to any security
interest, lien, mortgage, pledge, encumbrance, restriction upon
voting or transfer, preemptive rights, claim, equity or other defect.
(B) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and
issued as provided in the Indenture and delivered to the Trust
pursuant to the Trust Agreement, will constitute valid and legally
binding obligations of the Company entitled to the benefits of the
Indenture and will conform to the description thereof contained in
the Prospectus.
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to the
guarantee trustee for the benefit of the Trust, will constitute a
valid and legally binding obligation of the Company and will conform
to the description thereof contained in the Prospectus.
(D) The Agreement as to Expenses and Liabilities (the
"Expense Agreement") has been duly and validly authorized, and, when
duly and validly executed and delivered by the Company, will
constitute a valid and legally binding obligation of the Company and
will conform to the description thereof contained in the Prospectus.
(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
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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 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) in any material respect. 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
Bank), or (B) except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the
Offerors or the Subsidiaries or any of their respective properties
the breach, violation or default of which could have a material
adverse effect on the condition, financial or otherwise, earnings,
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
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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 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, except such as have been obtained under the 1933 Act, the
Trust Indenture Act and from the Nasdaq Stock Market's National
Market relating to the listing of the Designated Preferred
Securities, the Company's Term Loan Agreement dated as of October 2,
1995, the Company's Standby Term Loan Agreement dated September 28,
1994 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 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
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interfere with the use made or proposed to be made of such real or
personal property, and neither the Company nor any of the
Subsidiaries is in default in any material respect of any of the
terms or provisions of any leases.
(xvii) Coopers & Lybrand L.L.P., 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 by incorporation by reference or
otherwise in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) with respect to the Company and the Subsidiaries, comply
in all material respects with the 1933 Act and the 1933 Act
Regulations and present fairly the consolidated financial position of
the Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations, cash flows and shareholders'
equity of the Company and the Subsidiaries for the periods specified
and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The selected
and summary consolidated financial data concerning the 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
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operations of the Offerors and the Subsidiaries on a consolidated
basis, whether or not arising in the ordinary course of business;
(C) neither of the Offerors nor any of the
Subsidiaries 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
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described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and neither the
Offerors nor the Subsidiaries have received any notice of
infringement or conflict with asserted rights of others with respect
to any patents, copyrights, trademarks, service marks, trade names or
other rights 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
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agreement is (with or without notice or lapse of time or both) in
breach or default in any material respect thereunder.
(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 or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), there are no contractual encumbrances
or restrictions or material legal restrictions required to be
described therein, on the ability of the Subsidiaries (A) to pay
dividends or make any other distributions on its capital stock or to
pay any indebtedness owed to the Offerors, (B) to make any loans or
advances to, or investments in, the Offerors or (C) to transfer any
of its property or assets to the Offerors.
(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 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
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Selected Dealers' concessions set forth therein, for re-offering by Selected
Dealers to the public at the public offering price. The Underwriters may
allow, and Selected Dealers may re-allow, a concession set forth in the
Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors jointly and
---------------------------------
severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the
time of execution of this Agreement, to become effective as promptly as
possible. If the Registration Statement has become or becomes effective
pursuant to Rule 430A and information has been omitted therefrom in reliance
on Rule 430A, then, the Offerors will prepare and file in accordance with
Rule 430A and Rule 424(b) 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.
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(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply to the best of their ability
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934
Act Regulations so as to permit the completion of the distribution of the
Designated Preferred Securities as contemplated herein and in the Trust
Agreement and the Prospectus. The Offerors shall not file any amendment to
the registration statement as originally filed or to the Registration
Statement and shall not file any amendment thereto or make any amendment or
supplement to any Preliminary Prospectus or to the Prospectus of which 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
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earnings statement of the Offerors conforming with the requirements of Section
11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the
manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall
furnish to the 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 Effective Date, the Offerors
shall not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities other than pursuant
to this Agreement, any other beneficial interests in the assets of the Trust
or any securities of the Trust or the Company that are substantially similar
to the Designated Preferred Securities, 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
other than the ____% Cumulative Trust Preferred Securities, with a
liquidation amount of $25 per preferred security, issued by 1st Source Capital
Trust I, a Delaware business trust, and the related guarantee and
subordinated debentures, all as more fully described in the Registration
Statement, 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.
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(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, or prepay or give notice of
prepayment (or announce any redemption or call for redemption, or any
repayment or notice of prepayment) 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 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 Agreement, the Indenture and the Guarantee; and
(j) all other costs and expenses incident to the performance of
the obligations of the Company hereunder and under the Trust Agreement that
are not otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to the termination pursuant to the terms
hereof (other than pursuant to Section 9 hereof), the Company will pay you
your 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 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 material respects to counsel for the
Underwriters, and the Offerors and the Subsidiaries shall have furnished to
such counsel all documents and information relating thereto that they may
reasonably request to enable them to pass upon such matters.
(d) 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 Indiana,
and is duly registered as a bank holding company under the BHC Act.
Each of the Subsidiaries is duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation.
Each of the Company and the Subsidiaries has full corporate power and
authority to own or lease its properties and to conduct its business
as such business is described in the Prospectus and is currently
conducted in all material respects. To the best of such counsel's
knowledge, 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. To the best of such counsel's knowledge, the capital stock
of the Company authorized and issued as of December 31, 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. 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;
(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,
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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 Indiana law
in connection with the transactions contemplated by this Agreement in
connection with the purchase and distribution of the Designated
Preferred Securities by the 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.
(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
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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 reasonably be
expected to have a material adverse effect on the consummation of
this Agreement or the issuance and sale of the Designated Preferred
Securities as contemplated herein 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
the Trust Indenture Act, the Company's Term Loan Agreement dated as
of October 2, 1995, the Company's Standby Term Loan Agreement dated
as of September 28, 1994, 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 and any documents incorporated
therein by reference (other than the financial statements or other
financial data included therein or omitted therefrom and
Underwriters' Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations as of their
respective dates of effectiveness.
(xiii) To the best of such counsel's knowledge, there are
no contracts, agreements, leases or other documents of a character
required to be disclosed in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement that are not
so disclosed or filed.
(xiv) The statements under the captions "Description of the
Preferred Securities", "Description of the Subordinated Debentures",
"Description of the Guarantee", "Relationship Among the Preferred
Securities, the Subordinated Debentures and the Guarantee", "Certain
Federal Income Tax Consequences", "ERISA Considerations",
"Regulation", "Governmental Policies and Legislation", and
"Legislative Developments" in the Prospectus or incorporated therein
by reference, insofar as such statements constitute a summary of
legal and regulatory matters, documents or instruments referred to
therein, are accurate descriptions of the matters summarized therein
in all material respects and fairly present the information called
for with respect to such legal matters, documents and instruments,
other than financial and statistical data as to which said counsel
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 described in or contemplated by the
Prospectus, to the best of such counsel's knowledge, there are no
contractual encumbrances or restrictions, or material legal
restrictions required to be described therein on the ability of the
Subsidiaries (A) to pay dividends or make any other distributions on
its capital stock or to pay indebtedness owed to the Offerors, (B) to
make any loans or advances to, or investments in, the Offerors or (C)
to transfer any of its property or assets to the Offerors.
(xvii) To the best of such counsel's knowledge, (A) the
business and operations of the Offerors and the Subsidiaries comply
in all material respects with all statutes, ordinances, laws, rules
and regulations applicable thereto and which are material to the
Offerors and the Subsidiaries on a consolidated basis, except 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. In giving such opinion, such counsel may rely as to
matters of Delaware law upon (A) the opinion of Richards, Layton and Finger
described herein and (B) the opinion of Vincent A. Tamburo, general counsel
of the Company, as to certain matters regarding the Company and the
Subsidiaries, and such counsel shall state in its opinion the amount of
reliance it is placing on the opinion of such Company counsel and that such
reliance is, in the view of such counsel, reasonable under the circumstances.
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Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with you and your counsel,
at which conferences such counsel made inquiries of such officers,
representatives and accountants and discussed in detail the contents of the
Registration Statement and Prospectus and the documents incorporated therein
by reference (without taking further action to verify independently the
statements made in the Registration Statement and the Prospectus, and without
assuming responsibility for the accuracy or completeness of such statements,
except to the extent expressly provided above) and such counsel has no reason
to believe (A) that the Registration Statement or any amendment thereto
(except for the financial statements and related schedules and statistical
data 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 or the documents
incorporated therein by reference (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 in light of the circumstances under which
they were made, 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 Company, as sponsor, 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,
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the Designated Preferred Securities will be, subject to the
qualifications set forth in paragraph (v) below, fully paid and
nonassessable beneficial interest in the assets of the Trust and
entitled to the benefits of the Trust Agreement. The form of
certificates to evidence the Designated Preferred Securities has been
approved by the Trust and is in due and proper form and complies with
all applicable requirements of the Delaware Business Trust Act.
(v) Holders of Designated Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to shareholders of private,
for-profit corporations organized under the General Corporation Law
of the State of Delaware. Such opinion may note that the holders of
Designated Preferred Securities may be obligated to make payments as
set forth in the Trust Agreement.
(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 Coopers & Lybrand L.L.P. a letter, dated the date of this Agreement and
the Closing Date (and, if applicable, the
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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 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
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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 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
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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 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.
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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 to Sections 6(h),
6(i) or 6(l) hereof) or the registration statement as originally filed or the
Registration Statement, any Preliminary Prospectus or the Prospectus, or in
any amendment or supplement thereto, (ii) upon any blue sky application or
other document executed by the Company or the Trust specifically for that
purpose or based upon written information furnished by the Company or the
Trust filed in any state or other jurisdiction in order to qualify any of the
Designated Preferred Securities under the securities laws thereof (any such
application, document or information being hereinafter referred to as a "Blue
Sky Application"), (iii) any omission or alleged omission to state a material
fact in the registration statement as originally filed or the Registration
Statement, the Preliminary Prospectus or the Prospectus, or in any amendment
or supplement thereto, or in any Blue Sky Application required to be stated
therein or necessary to make the statements therein not misleading, and
against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and 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 or supplement thereto, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
(iv) the enforcement of this indemnification provision or the contribution
provisions of Section 7(d); and shall reimburse each such indemnified party
for any reasonable legal or other expenses as incurred, but in no event less
frequently than 30 days after each invoice is submitted, incurred by them in
connection with investigating or defending against or appearing as a third-
party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses
might later be held to be improper, in which case such payments shall be
promptly refunded; provided, however, that the Offerors shall 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 the Underwriters'
Information; provided, that the indemnification contained in this paragraph
--------
with respect to any Preliminary Prospectus shall not inure to the benefit of
any Underwriter (or of any person controlling any Underwriter) to the extent
any such losses, claims, damages, liabilities or expenses directly results
from the fact that such Underwriter sold Designated Preferred Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have been
furnished to you in sufficient time to distribute same with or prior to the
written confirmation of the sale involved), if required by law, and if such
loss, claim, damage, liability or expense would not have arisen but for the
failure to give or send such person such document. The foregoing indemnity
agreement is
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in addition to any liability the Company or the Trust may otherwise have to
any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless each Offeror, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls an Offeror within the meaning of the 1933 Act, to the same extent as
required by the foregoing indemnity from the Company to each Underwriter, but
only with respect to the Underwriters' Information 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.
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An indemnifying party shall not, without the prior written consent
of each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within
the meaning of the 1933 Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes a release
of each such indemnified party reasonably satisfactory to each such
indemnified party and each such controlling person from all liability arising
out of such claim, action, suit or proceeding or unless the indemnifying
party shall confirm in a written agreement with each indemnified party, that
notwithstanding any federal, state or common law, such settlement, compromise
or consent shall not alter the right of any indemnified party or controlling
person to indemnification or contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and
the Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative 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
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otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls an Offeror
within the meaning of the 1933 Act, each officer and trustee of an Offeror
who shall have signed the Registration Statement and each director of an
Offeror shall have the same rights to contribution as the Offerors subject in
each case to the preceding sentence. The obligations of the Offerors under
this paragraph (d) shall be in addition to any liability which the Offerors
may otherwise have and the obligations of the Underwriters under this
paragraph (d) shall be in addition to any liability that the Underwriters may
otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 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
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Offerors and the Subsidiaries on a consolidated basis, whether or not arising
in the ordinary course of business;
(d) There has occurred any outbreak of hostilities or other
calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in your
reasonable judgment, impracticable to market the Designated Preferred
Securities or enforce contracts for the sale of the Designated Preferred
Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or 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, Indiana or Michigan 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.
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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.
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.
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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 100 North Michigan Street, South Bend, Indiana 46601, Attention: Larry E.
Lentych (with a 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.
[The remainder of this page is intentionally left blank.]
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If the foregoing is in accordance with the your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this shall become a binding agreement between the Company, the Trust and you
in accordance with its terms.
Very truly yours,
1st SOURCE CORPORATION
By:____________________________________
Name:
Title:
1st SOURCE CAPITAL TRUST II
By:____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of March ___, 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
1st Source Bank
1st Source Leasing, Inc.
1st Source Insurance, Inc.
1st Source Capital Corporation
Trustcorp Mortgage Company
1st Source Capital Trust I
1st Source Capital Trust II
1st Source Auto Leasing, Inc. (inactive)
1st Source Travel, Inc. (inactive)
FBT Capital Corporation (inactive)
40
1,000,000 Preferred Securities
1st Source Capital Trust II
Floating Rate Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
AGREEMENT AMONG UNDERWRITERS
----------------------------
March ___, 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 1st Source
Corporation, an Indiana corporation (the "Company") and its financing
subsidiary, 1st Source Capital Trust II, 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 1,000,000 of the Trust's Floating
Rate 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 I 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 100,000 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-3 (Registration Nos. 333-______, 333-______-01 and
333-______-02) 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 filed 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
41
statement, including amendments thereto, relating to the Designated Preferred
Securities, as filed 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
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 10% of the 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 (a) to an account designated by you by wire transfer, or
(b) 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 same day 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 or wire
transfer 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 over-allotments shall be made for the accounts of the several
Underwriters as nearly as
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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 distribution, we will otherwise comply with Rule 10b-6.
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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 100,000
Designated Preferred 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
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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, 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
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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 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.
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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
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.
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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 1 to the
Underwriting Agreement
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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