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EXHIBIT 1.1
1,250,000 Preferred Securities
EBH CAPITAL TRUST I
____% Cumulative Trust Preferred Securities
(Liquidation Amount of $8 per Preferred Security)
UNDERWRITING AGREEMENT
_____________, 1999
STIFEL, NICOLAUS & COMPANY, INCORPORATED
500 North Broadway
St. Louis, Missouri 63102
Dear Sirs:
Enterbank Holdings, Inc., a Delaware corporation (the "Company"), and
its financing subsidiary, EBH Capital Trust I, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the "Offerors"), propose
that the Trust issue and sell to Stifel, Nicolaus & Company, Incorporated (the
"Underwriter"), pursuant to the terms of this Agreement, 1,250,000 of the
Trust's _____% Cumulative Trust Preferred Securities, with a liquidation amount
of $8 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
1,250,000 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 Underwriter, at its option,
up to an additional 125,000 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."
The Offerors hereby confirm as follows their agreement with the
Underwriter in connection with the proposed purchase of the Designated Preferred
Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES,
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Offerors hereby agree that the Trust shall issue and sell to the
Underwriter and the Underwriter agrees to purchase from the Trust, at a purchase
price of $8 per Firm Preferred Security (the "Purchase Price"), 1,250,000
Preferred Securities. 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 the Underwriter a commission of $____________ per Firm Preferred Security
purchased (the "Firm Preferred Securities Commission").
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 Underwriter an option (the "Option") to
purchase all or any portion of the 125,000 Option Preferred Securities, and upon
the
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exercise of such Option in accordance with this Section 1, the Offerors hereby
agree that the Trust shall issue and sell to the Underwriter all or any portion
of the Option Preferred Securities at the same Purchase Price per Option
Preferred Security paid for the Firm Preferred Securities. 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 Underwriter a
commission of $____________ per Option Preferred Security for each Option
Preferred Security purchased (the "Option Preferred Securities Commission"). The
Option hereby granted 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 the Underwriter giving notice (confirmed in writing) to the Trust
setting forth the number of Option Preferred Securities as to which the
Underwriter is 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 the Underwriter, 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 the Underwriter, 501 North Broadway, St. Louis,
Missouri 63102, or such other place as shall be agreed to by the Underwriter and
the Offerors, at 10:00 a.m., St. Louis time, on ________, 1999, or at such other
time not more than five full business days thereafter as the Offerors and the
Underwriter shall determine (the "Closing Date"). The Trust shall deliver or
cause to be delivered to you for the account of the Underwriter against payment
to or upon the order of the Trust of the purchase price in federal or other
immediately available funds, the Firm Preferred Securities in the form of one or
more permanent global securities in definitive form (the "Global Securities")
deposited with the Property Trustee as custodian for the Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent Global Securities will be held only in book-entry
form. If the Underwriter exercises the option to purchase any or all of the
Option Preferred Securities, payment of the Purchase Price and Option Preferred
Securities Commission and delivery of certificates for such Option Preferred
Securities shall be made on the Option Closing Date at the Underwriter's
offices, or at such other place as the Offerors and the Underwriter shall
determine. Upon delivery, the Option Preferred Securities shall be in the form
of one or more global Option Preferred Securities registered in the name of Cede
& Co., as nominee of DTC. Payments for the Designated Preferred Securities 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 the Underwriter for
the account of the Underwriter of certificates for the Designated Preferred
Securities to be purchased by the Underwriter.
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 three business
days after the date of the contract.
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 the Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Property Trustee and Delaware Trustee and the
Administrative Trustees named therein (collectively, the
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"Trustees"), and the Company, in substantially the form heretofore delivered to
the Underwriter, 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 Junior Subordinated Debentures
(the "Debentures") pursuant to an Indenture between the Company and Wilmington
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 Wilmington Trust Company, as guarantee trustee
(the "Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to,
and agree with, the Underwriter that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities
Exchange Act of 1934, as amended (the "1934 Act") and the rules and
regulations thereunder (the "1934 Act Regulations") at the time they
were filed with the Commission, complied as to form 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 ________
and ________) for registration of the issuance of the Designated
Preferred Securities, the Guarantee and up to $11,000,000 aggregate
principal amount of Debentures under the Securities Act of 1933, as
amended (the "1933 Act"), including the related prospectus subject to
completion, and one or more amendments to such Registration Statement
may have been so filed, in each case in conformity in all material
respects with the requirements of the 1933 Act, the rules and
regulations promulgated thereunder (the "1933 Act Regulations") and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the rules and regulations thereunder. Copies of such
registration statement, including any amendments thereto, any
Preliminary Prospectus (as defined herein) 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 Underwriter. 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 Underwriter prior to (or as are agreed to by
the Underwriter 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 Underwriter prior to (or is agreed to by the
Underwriter subsequent to) the execution of this Agreement. As used in
this Agreement, the term "Registration Statement" means such
registration statement, as amended, if applicable, 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
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Rule 430A and included in the Prospectus; the term "Preliminary
Prospectus" means each prospectus subject to completion filed with
such registration statement or any amendment thereto, including all
documents (or portions thereof) incorporated by reference therein
under the 1934 Act (including the prospectus subject to completion, if
any, included in the Registration Statement and each prospectus filed
pursuant to Rule 424(a) under the 1933 Act); and the term "Prospectus"
means the prospectus first filed with the Commission pursuant to Rule
424(b)(1) or (4) or, if no prospectus is required to be filed pursuant
to Rule 424(b)(1) or (4), the prospectus included in the Registration
Statement, in each case including the financial schedules and all
documents (or portions thereof) incorporated by reference therein
under the 1934 Act. The date on which the Registration Statement
becomes effective is hereinafter referred to as the "Effective Date."
(iii) The documents incorporated by reference in any
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
any 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, any 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. Any Preliminary Prospectus,
at the time of filing thereof, (A) complied in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations,
and (B) did not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Offerors by the Underwriter expressly for inclusion in
the Prospectus beneath the heading "Underwriting" (such information
referred to herein as the "Underwriter's 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; provided, however, that this representation and warranty
does not apply to the Underwriter's Information. At the Effective Date
and at all times when the Prospectus is required to be delivered in
connection with offers and sales of Designated Preferred Securities,
including, without limitation, the Closing Date and, if applicable,
the Option Closing Date, the Prospectus, as amended or supplemented,
(A) complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder), and
(B) did not contain and will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under
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which they were made, not misleading; provided, however, that this
representation and warranty does not apply to the Underwriter's
Information.
(A) The Company is duly organized, validly existing and
in good standing under the laws of the State of Delaware, 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, any 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.
(vi) The Company has [six] subsidiaries, which are listed on
Exhibit A attached hereto and incorporated by reference herein (the
"Subsidiaries"). The Company does not own or control, directly or
indirectly, more than 5% of any class of equity security of any
corporation, association or other entity other than the Subsidiaries.
Each Subsidiary is a corporation, bank or trust duly organized,
incorporated or created, as the case may be, validly existing and in
good standing under the laws of its respective jurisdiction of
incorporation, organization or creation, as the case may be. Each such
Subsidiary has full corporate and other power and authority to own,
lease and operate its properties and to conduct its business as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, any Preliminary
Prospectus) and as currently being conducted. The deposit accounts of
Enterprise Bank (the "Bank") are insured by the Bank Insurance Fund
administered by the Federal Deposit Insurance Corporation (the "FDIC")
up to the maximum amount provided by law, and no proceedings for the
modification, termination or revocation of any such insurance are
pending or, to the knowledge of the Offerors, threatened.
(vii) The Company and each of the Subsidiaries is duly
qualified to transact business as a foreign corporation, bank or
trust, as the case may be, and is in good standing in
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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, affairs 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, any 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.
(viii) 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, any
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, any 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.
(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 Statement and the
Prospectus (or, if the Prospectus is not in existence, any 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
represent valid 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, any 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.
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(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 Registration Statement and the
Prospectus.
(D) The Agreement as to Expenses and Liabilities to be
entered into by the Company and the Trust (the "Expense Agreement")
has been duly authorized, and, when duly and validly executed and
delivered by the Company, will constitute a valid and legally binding
obligations of the Company and will conform to the description thereof
contained in the Registration Statement and the Prospectus.
(ix) 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, any Preliminary
Prospectus) and as currently being conducted, except in each case for
any such noncompliance which would not have a material adverse effect
on the condition (financial or otherwise), earnings business,
prospects, affairs or results of operations of the Company and the
Subsidiaries on a consolidated basis. Neither the Company nor any
non-banking subsidiary of the Company directly or indirectly engages
in any activity prohibited by the Board of Governors of the Federal
Reserve System or the BHC Act or which is not listed at 12 C.F.R.
225.25.
(x) 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, any Preliminary Prospectus) and as currently being
conducted in all material respects, except where the failure to obtain
or possess any Permit would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, affairs or results of
operations of the Company and the Subsidiaries on a consolidated
basis. All such Permits are in full force and effect and each of the
Offerors and the Subsidiaries are in all material respects complying
therewith, and no event has occurred that allows, or after notice or
lapse of time would allow, revocation or termination thereof or will
result in any other material impairment of the rights of the holder of
any such Permit, subject in each case to such qualification as may be
adequately disclosed in the Prospectus (or, if the Prospectus is not
in existence, any Preliminary Prospectus) except where such
revocation, termination or impairment would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects, affairs, or
results of operations of the Company and the Subsidiaries on a
consolidated basis. 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 except
where such revocation, termination or impairment would not,
individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), earnings, business, prospects,
affairs or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xi) Neither of the Offerors nor any of the Subsidiaries are
in breach or violation of their corporate charter, by-laws or other
governing documents (including without
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limitation, the Trust Agreement) in any material respect. Neither of
the Offerors nor any of the Subsidiaries is, and to the knowledge of
the Offerors no other party is, in violation, breach or default (with
or without notice or lapse of time or both) in the performance or
observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license, 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 a material
adverse effect on the condition (financial or otherwise), earnings,
business, prospects, affairs or results of operations of the Company
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, any Preliminary Prospectus), any
order, decree, judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or
foreign, having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties the breach, violation or default of
which could have a material adverse effect on the condition (financial
or otherwise), earnings, business, prospects, affairs or results of
operations of the Company and the Subsidiaries on a consolidated
basis.
(xii) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement, the Trust Agreement, the Guarantee, the Indenture, the
Registration Statement and the Prospectus (or, if the Prospectus in
not in existence, any 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, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license, Permit or any other agreement or instrument to
which the Offerors or the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound or any order,
decree, judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or
foreign, having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties which conflict, creation,
imposition, breach, violation or default would have either singly or
in the aggregate a material adverse effect on the condition (financial
or otherwise), earnings, business, prospects, affairs 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 (or any Preliminary Prospectus), except
such as have been obtained under the 1933 Act and the Trust Indenture
Act and from the American Stock Exchange, Inc. relating to the listing
of the Designated Preferred Securities, and such as may be required
under state securities laws or Interpretations or Rules of the
National Association of Securities Dealers, Inc. ("NASD") in
connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriter.
(xiii) 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
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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.
(xiv) 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, any Preliminary Prospectus) or such as
do not materially affect the value of such property in the aggregate
and do not materially interfere with the use made or proposed to be
made of such property; and all of the leases under which the Company
or the Subsidiaries hold real or personal property are valid, existing
and enforceable leases and in full force and effect with such
exceptions as are not material and do not materially interfere with
the use made or proposed to be made of such real or personal property,
and neither the Company nor any of the Subsidiaries is in default in
any material respect of any of the terms or provisions of any leases,
except, in each case where the failure to so possess or the existence
of such default would not individually or on the aggregate, have a
material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, affairs or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xv) KPMG LLP, who have certified certain of the
consolidated financial statements of the Company and the Subsidiaries,
including the notes thereto, incorporated by reference 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.
(xvi) The consolidated financial statements including the
notes thereto, incorporated by reference in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, any
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 consolidated financial data concerning the Offerors and the
Subsidiaries included in the Registration Statement and the Prospectus
(or any 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 any Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration
Statement and the Prospectus (or any 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
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consolidated financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or any
Preliminary Prospectus).
(xvii) 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, any Preliminary Prospectus), except as
otherwise stated therein:
(A) neither of the Offerors nor any of the Subsidiaries
has sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree which is material to the condition (financial or
otherwise), earnings, business, prospects, affairs 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, affairs or results of 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, affairs or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis;
(D) neither of the Offerors has declared or paid any
dividend other than the Company's regular dividends on its common, and
neither of the Offerors nor any of the Subsidiaries has become
delinquent in the payment of principal or interest on any outstanding
borrowings; and
(E) there has not been any change in the capital stock,
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.
(xviii) Except as set forth in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, any
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, business, prospects, affairs 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 any Preliminary Prospectus) and is not
so disclosed.
(xix) 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
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Prospectus (or, if the Prospectus is not in existence, any Preliminary
Prospectus) that are not so summarized.
(xx) 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.
(xxi) The Offerors and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names and other rights necessary to conduct the
businesses now conducted by them in all material respects or as
described in the Prospectus (or, if the Prospectus is not in
existence, any 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, business,
prospects, affairs 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.
(xxii) Except as adequately disclosed in the Prospectus (or,
if the Prospectus is not in existence, any Preliminary Prospectus), no
labor dispute involving the Company or the Subsidiaries exists or, to
the knowledge of the Offerors, is imminent which might be expected to
have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, affairs 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, any 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, business, prospects, affairs or results of
operations of the Company and the Subsidiaries on a consolidated
basis.
(xxiii) 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, business,
prospects, affairs or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. The Offerors have no knowledge
of any tax deficiency which has been or might be assessed against the
Offerors or the Subsidiaries which, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the condition (financial or otherwise), earnings, business, prospects,
affairs or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xxiv) 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, any
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
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other laws relating to or affecting creditors' rights generally.
Except as disclosed in the Prospectus (or any Preliminary Prospectus),
to the knowledge of the Offerors, no other party to any such agreement
is (with or without notice or lapse of time or both) in breach or
default in any material respect thereunder.
(xxv) 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, any Preliminary Prospectus)
which is not adequately described therein.
(xxvi) 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, any Preliminary Prospectus).
(xxvii) The Designated Preferred Securities have been
approved for trading on The American Stock Exchange, Inc. subject to
official notice of issuance.
(xxviii) Except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, any Preliminary
Prospectus), there are no contractual encumbrances or restrictions or
material legal restrictions required to be described therein, on the
ability of any of the Subsidiaries (A) to pay dividends or make any
other distributions on its capital stock or to pay any indebtedness
owed to the Company, (B) to make any loans or advances to, or
investments in, the Offerors or (C) to transfer any of its property or
assets to the Offerors.
(xxix) Neither of the Offerors is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xxx) 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 Underwriter.
3. OFFERING BY THE UNDERWRITER. After the Registration Statement
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriter proposes to offer the Firm
Preferred Securities for sale to the public upon the terms and conditions set
forth in the Prospectus. The Underwriter 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 Underwriter may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriter as the Underwriter may elect to dealers
chosen by it (the "Selected Dealers") at the public offering price set forth in
the Prospectus less the applicable Selected Dealers' concessions set forth
therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriter may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
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4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors jointly and
severally covenant with the Underwriter 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
Underwriter of such timely filing.
(b) The Offerors shall notify the Underwriter 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 Underwriter, from time to
time without charge, as soon as available, as many copies as the Underwriter 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) any Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply 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 the Underwriter shall not previously have been advised in
writing and provided a copy a reasonable time prior to the proposed filings
thereof or to which the Underwriter or the Underwriter's counsel shall object.
If it is necessary, in the Offerors' reasonable
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opinion or in the reasonable opinion of the Offerors' 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
Underwriter or the Underwriter's counsel does not object), and furnishing to the
Underwriter such number of copies as the Underwriter 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 the Underwriter and the Underwriter's
counsel). 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 the Underwriter, such number of copies as the Underwriter may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Prospectus (in form and substance satisfactory to the
Underwriter and the Underwriter's counsel) 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 the Underwriter and the
Underwriter's counsel in order to qualify the Designated Preferred Securities
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Underwriter 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 the
Underwriter 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 the Underwriter as soon as practicable, but in any event not later
than 16 months after the Effective Date, a consolidated earnings statement of
the Offerors conforming with the requirements of Section 11(a) of the 1933 Act
and Rule 158.
(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 Underwriter 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 Stock Market's National Market and
such other documents, reports and information concerning the business and
financial conditions of the Offerors as the Underwriter may reasonably request,
other than such documents, reports and information for which the Offerors has
the legal obligation not to reveal to the Underwriter.
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(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, without the prior written consent
of the Underwriter.
(j) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to become listed for trading on The American
Stock Exchange, Inc. 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 Underwriter, 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 for
trading on The American Stock Exchange, Inc. 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 Underwriter's
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 Underwriter shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, and there will not be any material
change in the financial position, capital stock, or any material increase in
long-term debt, obligations under capital leases or short-term borrowings of the
Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the
date hereof, without the prior written consent of the Underwriter, purchase,
redeem or call for redemption, or prepay or give notice of prepayment (or
announce any redemption or call for redemption, any repayment or notice of
prepayment) of any of the Offerors' securities, other than common stock of the
Company and the redemption of the Preferred Securities pursuant to their terms.
(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 the prior written consent of the
Underwriter.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is terminated
or the sale of the Designated Preferred Securities to the Underwriter 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:
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(a) the preparation, printing, filing, delivery and shipping of
the initial registration statement, any 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), 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 the
Underwriter may request, including all filing fees and fees and disbursements of
counsel for the Underwriter 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 and the Depository Trust Company;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on The American Stock Exchange, Inc.;
(f) the cost of furnishing to the Underwriter 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 Underwriter;
(i) all expenses incident to the preparation, execution and
delivery of the Trust Agreement, the Indenture, the Guarantee and the Expense
Agreement; 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 termination pursuant to the terms hereof, the
Company will pay the Underwriter its accountable out-of-pocket expenses in
connection herewith or in contemplation of the performance of its obligations
hereunder, including without limitation travel expenses, reasonable fees,
expenses and disbursements of counsel or other out-of-pocket expenses incurred
by the Underwriter 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 Underwriter
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other than in accordance with paragraph (c) above, or for the reimbursement of
any expenses of the Underwriter.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter 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 the Underwriter's 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 date as the Underwriter
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
Underwriter, 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 the Underwriter and complied with to the
satisfaction of the Underwriter and counsel for the Underwriter.
(b) The Underwriter shall not 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 the Underwriter's opinion, is material or omits to state a
fact which, in the Underwriter's 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 Underwriter, 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) Armstrong Teasdale LLP, counsel for the Offerors, shall have
furnished to the Underwriter 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 Underwriter, 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 Delaware, and
is duly registered as a bank holding company under the BHC Act. Each of the
Subsidiaries is duly incorporated, organized or created, as the case may
be, validly existing and in good standing under the laws of its
jurisdiction of
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incorporation, organization or creation, as the case may be. Each of the
Company and the Subsidiaries has full corporate power and authority to own
or lease its properties and to conduct its business as such business is
described in the Prospectus and is currently conducted in all material
respects. All outstanding shares of capital stock of the Subsidiaries have
been duly authorized and validly issued and are fully paid and
nonassessable except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 1831 and, to the best of such counsel's knowledge,
except as disclosed in the Prospectus, there are no outstanding rights,
options or warrants to purchase any such shares or securities convertible
into or exchangeable for any such shares.
(ii) The capital stock, Debentures and Guarantee of the
Company and the equity securities of the Trust conform to the description
thereof contained in the Prospectus in all material respects. The capital
stock of the Company authorized and issued as of June 30, 1999 is as set
forth under the caption "Capitalization" in the Prospectus, has been duly
authorized and validly issued, and is fully paid and non-assessable. 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, the Trust 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
trading on The American Stock Exchange, Inc., subject to official notice of
issuance. In connection with the issuance of the Designated Preferred
Securities, there are no preemptive or other rights to subscribe for or to
purchase any shares of capital stock or equity securities of the Offerors
or the subsidiaries. Other than as disclosed in the Prospectus there are 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 nonmaterial 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,
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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, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to
the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its terms, subject
to the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
(viii) To the best of such counsel's knowledge, neither of
the Offerors nor any of the Subsidiaries is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, by-laws or governing document (including without
limitation, the Trust Agreement). The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated by
this Agreement, and the Trust Agreement do not and will not conflict with,
result in the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or
the Subsidiaries or the Designated Preferred Securities pursuant to, or
constitute a material breach or violation of, or constitute a material
default under, with or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws or governing
document (including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or to the best of such counsel's knowledge,
any material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license or any other agreement or
instrument to which either Offeror or the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or any
order, decree, judgment, franchise, license, Permit, rule or regulation of
any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties which, in each case, is material to the Offerors and
the Subsidiaries on a consolidated basis. No authorization, approval,
consent or order of, or filing, registration or qualification with, any
person (including, without limitation, any court, governmental body or
authority) is required under Missouri law in connection with the
transactions contemplated by this Agreement in connection with the purchase
and distribution of the Designated Preferred Securities by the Underwriter.
(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 Subsidiaries is or may be a party, and (ii) no
action, suit or proceeding is pending or threatened in writing against or
affecting the
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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, 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, 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 Underwriter.
(xii) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial statements or
other financial and statistical data included therein or omitted therefrom
and Underwriter's 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 or issuance. The documents incorporated by reference in
the Registration Statement and the Prospectus and any amendments or
supplements thereto (other than the financial statements or other financial
and statistical data included therein or omitted therefrom and
Underwriter's Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations as of their respective dates
of filing.
(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 Junior Subordinated Debentures,"
"Description of the Guarantee," "Relationship Among the Preferred
Securities, the Junior Subordinated Debentures and the Guarantee," "Certain
Federal Income Tax Consequences," and "ERISA Considerations" in the
Prospectus, insofar as such statements constitute a summary of legal and
regulatory matters, documents or instruments referred to therein are
accurate descriptions of the matters summarized therein in all material
respects and fairly present the information called for with respect to such
legal matters, documents and instruments, other than financial and
statistical data as to which said counsel expresses no opinion or belief.
(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.
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(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, business, prospects, affairs 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 addition, it is contemplated that such counsel in giving the above
opinion shall rely on the opinion of Richards, Layton & Finger, special Delaware
counsel to the Offerors as to certain matters relating to the Trust and the
Designated Preferred Securities which are governed by Delaware law.
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 the Underwriter and the
Underwriter's 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 (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 Underwriter's
Information, as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or (B)
that the Prospectus or any amendment or supplement thereto (except for the
financial statements and related schedules and statistical data
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included therein or omitted therefrom or Underwriter's 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, in light of the circumstances under which they were
made, not misleading or (C) that there is any amendment to the Registration
Statement required to be filed that has not already been filed.
(e) Richards, Layton & Finger, special Delaware counsel to the
Offerors, shall have furnished to the Underwriter 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 Company and the Trustees, and is enforceable against the
Company and the Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business
Trust Act, the execution and delivery of the Underwriting Agreement by the
Trust, and the performance by the Trust of its obligations thereunder, have
been authorized by all requisite trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been duly
authorized by the Trust Agreement, and when issued and sold in accordance
with the Trust Agreement, the Designated Preferred Securities will be,
subject to the qualifications set forth in paragraph (v) below, fully paid
and nonassessable beneficial interest in the assets of the Trust and
entitled to the benefits of the Trust Agreement. 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 material
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.
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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) Lewis, Rice & Fingersh, L.C., counsel for the Underwriter,
shall have furnished the Underwriter 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 the Underwriter 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, Lewis, Rice & Fingersh, L.C. 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 Armstrong Teasdale LLP and Richards, Layton & Finger described
herein.
(g) On the date of this Agreement and on the Closing Date (and,
if applicable, any Option Closing Date), the Underwriter shall have received
from KPMG LLP, a letter, dated the date of this Agreement and the Closing Date
(and, if applicable, the Option Closing Date), respectively, in form and
substance satisfactory to the Underwriter, 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 incorporated by reference 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 incorporated by reference 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 or incorporated by
reference in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and such
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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 Underwriter, in
each case as compared with amounts shown in the latest unaudited
interim consolidated statement of financial condition of the Company
incorporated by reference in the Registration Statement except in each
case for changes, increases or decreases which the Registration
Statement specifically discloses, have occurred or may occur or which
are described in such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements of the Company
included in the Registration Statement to the specified date referred
to in Clause (iii)(A), there were any decreases in the consolidated
interest income, net interest income, or net income of the Company or
in the per share amount of net income of the Company, or any changes,
decreases or increases in any other items specified by the
Underwriter, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Underwriter, 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 Underwriter which are derived
from the general accounting records and consolidated financial statements
of the Company incorporated by reference 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 and have found them to be
in agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in Clauses (iii)(A)
or (iii)(B), above, or any exceptions from such agreement specified in Clause
(iv) above, it shall be a further condition to the obligations of the
Underwriter that the Underwriter 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 Underwriter, or (z) reflect a
material change in items specified in Clause (iv) above from the amounts shown
in the Preliminary Prospectus distributed by the Underwriter in connection with
the offering contemplated hereby or from the amounts shown in the Prospectus.
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(h) At the Closing Date and, if applicable, the Option Closing
Date, the Underwriter 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,
business, prospects, affairs or results of operations of the Company and the
Subsidiaries on a consolidated basis; (iii) since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there has not been any material transaction entered into by the Offerors or the
Subsidiaries other than transactions in the ordinary course of business; (iv)
they have carefully examined the Registration Statement and the Prospectus as
amended or supplemented and 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 the Underwriter 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, the Underwriter shall have received a certificate of an Administrative
Trustee 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, the Underwriter 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
Underwriter's participation in such offering.
(l) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Offerors shall have furnished to the Underwriter and counsel
for the Underwriter all such other documents, certificates and opinions as such
parties shall 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 the Underwriter. The Offerors shall furnish the
Underwriter with conformed copies of such opinions, certificates, letters and
other documents as the Underwriter shall reasonably request.
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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 Underwriter's obligations hereunder may be terminated by the Underwriter 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 Underwriter to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors agree to jointly and severally indemnify and
hold harmless the Underwriter, each of its directors, officers and agents, and
each person, if any, who controls the 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 of this Agreement (or any certificate delivered
by the Company or the Trust pursuant to Sections 6(h), 6(i) or 6(l) hereto) or
the registration statement as originally filed or the Registration Statement,
any Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, (ii) upon any blue sky application or other document executed by the
Company or the Trust specifically for that purpose or based upon written
information furnished by the Company or the Trust filed in any state or other
jurisdiction in order to qualify any of the Designated Preferred Securities
under the securities laws thereof (any such application, document or information
being hereinafter referred to as a "Blue Sky Application"), (iii) any omission
or alleged omission to state a material fact in the registration statement as
originally filed or the Registration Statement, any Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application required to be stated therein or necessary to make the statements
therein not misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorney fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment of supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or (iv) the enforcement of this indemnification provision
or the contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable legal or other expenses as incurred, but in
no event less frequently than 30 days after each invoice is submitted, incurred
by them in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Offerors shall not be liable in any such
case to the extent, but only to the extent, that any such losses, claims,
damages, liabilities and expenses arise out of or are based upon any untrue
statement or omission or allegation thereof that has been made therein or
omitted therefrom in reliance upon and in conformity with the Underwriter's
Information; provided, that the indemnification contained in this paragraph with
respect to any Preliminary Prospectus shall not inure to the benefit of the
Underwriter (or of any person controlling the 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 the Underwriter
in sufficient time to distribute same with or prior to the written confirmation
of the sale involved), if required by law, and if such loss, claim, damage,
liability or expense would not have arisen but for the failure to give or send
such person such document. The foregoing indemnity agreement is in addition to
any liability the Company or the Trust may otherwise have to any such
indemnified party.
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(b) The Underwriter 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 the Underwriter, but only with respect to the Underwriter's
Information. The foregoing indemnity agreement is in addition to any liability
which the 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. 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 shall be a final
judgment for the plaintiff in any such action, the indemnifying party shall
indemnify and hold harmless any indemnified party and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
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(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
Underwriter 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 Underwriter 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 Underwriter 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 Underwriter, 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
Underwriter 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 Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Offerors and the Underwriter 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), the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by the
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that the Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls the
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 Underwriter under this paragraph (d) shall be in addition
to any liability that the Underwriter 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 the Underwriter or any person
controlling the 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 the Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling the Underwriter or an
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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. The Underwriter shall have the right to terminate
this Agreement at any time at or prior to the Closing Date or, with respect to
the Underwriter's 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 Underwriter 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 Underwriter materially impairs the investment quality of the Designated
Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or otherwise),
earnings, business, prospects, affairs or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(d) There has occurred any outbreak of hostilities or other
calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in the
Underwriter's 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 Stock Market's National Market shall have
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority;
(f) A banking moratorium shall have been declared by either
federal or Missouri authorities; or
(g) Any action shall have been taken by any government in
respect of its monetary affairs which, in the Underwriter's 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 Underwriter except as
provided in Sections 5 and 7 hereof.
9. 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
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the Commission declares the Registration Statement effective. The Company shall
immediately notify the Underwriter 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 Underwriter shall
release the Designated Preferred Securities for initial public offering, and the
Underwriter 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 the Underwriter or by the
Underwriter, by notifying either Offeror, except that the provisions of Sections
5 and 7 shall at all times be effective.
10. 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 Underwriter 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 Underwriter or controlling persons of
the Underwriter or any termination or cancellation of this Agreement and shall
survive delivery of and payment for the Designated Preferred Securities.
11. 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 Offerors shall be sent to 150 North
Meramac, Clayton, Missouri 63105, Attention: Fred H. Eller (with a copy to
Armstrong Teasdale LLP, One Metropolitan Square, St. Louis, Missouri 63102,
Attention: John L. Gillis, Jr., Esq.) and notices to the Underwriter shall be
sent to Stifel, Nicolaus & Company, Incorporated, 501 North Broadway, Ninth
Floor, St. Louis, Missouri 63102, Attention: Rick E. Maples (with a copy to
Lewis, Rice & Fingersh, L.C., 500 North Broadway, Suite 2000, St. Louis,
Missouri 63102, Attention: Thomas C. Erb, Esq.).
12. PARTIES. The Agreement herein set forth is made solely for the
benefit of the Underwriter and the Offerors and, to the extent expressed,
directors, trustees and officers of the Offerors, any person controlling the
Offerors or the Underwriter, and their respective successors and assigns. No
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser, in
his status as such purchaser, from the Underwriter of the Designated Preferred
Securities.
13. 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.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
If the foregoing is in accordance with the Underwriter's 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 the
Underwriter in accordance with its terms.
Very truly yours,
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ENTERBANK HOLDINGS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
EBH CAPITAL TRUST I
By:
--------------------------------------
Name:
------------------------------------
Title: Administrative Trustee
----------------------------------
CONFIRMED AND ACCEPTED,
as of , 1999.
----------------------------
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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EXHIBIT A
LIST OF SUBSIDIARIES
Enterprise Bank
EBH Capital Trust I
[To be completed.]