EXHIBIT 4.4
PLACEMENT AGREEMENT
among
FIRST BANK STATUTORY TRUST X,
Issuer
FIRST BANKS, INC.,
Sponsor
and
COHEN & COMPANY
Placement Agent
Dated as of August 29, 2007
PLACEMENT AGREEMENT, dated as of August 29, 2007 (this "Agreement"),
among First Bank Statutory Trust X, a statutory trust created under the laws of
the State of Delaware (the "Issuer"), First Banks, Inc., a Missouri corporation,
as Sponsor under the Declaration, as defined below (the "Sponsor" and, together
with the Issuer, the "Trust Parties"), and Cohen & Company, as placement agent
(the "Placement Agent").
WHEREAS, the Issuer proposes to issue U.S. $15,000,000 of its Capital
Securities, designated TP Securities, due September 15, 2037 (the "Securities");
WHEREAS, the Securities will be issued pursuant to an Amended and
Restated Declaration of Trust to be dated as of August 31, 2007 (the
"Declaration"), among First Banks, Inc., as Sponsor, LaSalle Bank National
Association, as Institutional Trustee, LaSalle National Trust Delaware, as
Delaware Trustee, and the Administrators named therein;
WHEREAS, the Issuer has agreed not later than August 31, 2007 ("Closing
Date"), to provide the Placement Agent with a copy of the Declaration and any
other documents required to be delivered pursuant to the terms hereof or the
Declaration;
WHEREAS, the Issuer will use the proceeds from the sale of the
Securities to purchase Debentures (as defined in the Declaration); and
WHEREAS, capitalized terms used herein but not otherwise defined herein
shall have the meaning ascribed thereto in the Declaration;
NOW IT IS HEREBY AGREED as follows:
1. PLACEMENT OF SECURITIES; COMPENSATION.
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(a) On the terms and subject to the conditions of this
Agreement and in reliance upon the representations and warranties herein set
forth, the Issuer hereby appoints the Placement Agent as placement agent to
place Securities, and the Placement Agent hereby accepts such appointment. From
the date hereof until any termination of the Placement Agent's obligations
hereunder, the Placement Agent shall use its reasonable efforts to place
Securities with investors permitted by the terms hereof.
(b) The Securities shall be issued and sold free from all
liens, charges and encumbrances, equities and other third party rights of any
nature whatsoever, together with all rights of any nature.
2. CLOSING. On the Closing Date, delivery of and payment for
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the Securities shall be made at the offices of LaSalle Bank National Association
or such other location or locations as shall be mutually acceptable to the
parties hereto. Delivery of the Securities shall be made against payment of the
purchase price therefor to the order of the Issuer in same day funds by transfer
to an account designated by the Sponsor or by such other means in same day funds
as shall be acceptable to the Placement Agent and Sponsor. Such payment shall be
made upon authorization from the Placement Agent (such authorization to be given
if the conditions to the Placement Agent's obligations set forth herein are
either satisfied or waived) against delivery of the Securities. The Securities
will be in the form requested by the Placement Agent in accordance with the
terms of the Declaration.
3. PAYMENT OF EXPENSES. The Sponsor agrees to pay all costs
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and expenses incident to the performance of the obligations of the Sponsor and
the Issuer under this Placement Agreement, whether or not the transactions
contemplated herein are consummated or this Placement Agreement is terminated,
including all costs and expenses incident to (i) the authorization, issuance,
sale and delivery of the Securities and any taxes payable in connection
therewith; (ii) the fees and expenses of qualifying the Securities under the
securities laws of applicable jurisdictions, and (iii) the fees and expenses of
the counsel, the accountants and any other experts or advisors retained by the
Sponsor or the Issuer; provided, however, that Placement Agent will provide
Sponsor a $10,000 credit for such expenses concurrently with consummation of the
transactions hereunder.
Notwithstanding the foregoing, if the sale of the Securities provided
for in this Placement Agreement is not consummated because any condition set
forth herein to be satisfied by either the Sponsor or the Issuer is not
satisfied, because this Placement Agreement is terminated pursuant to clause
(i), (iii) or (v) of Section 10 or because of any failure, refusal or inability
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on the part of the Sponsor or the Issuer to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder other than by
a reason of a default by the Placement Agent, the Sponsor will reimburse the
Placement Agent upon demand for all reasonable out-of-pocket expenses (including
the fees and all reasonable expenses of special counsel retained by the
Placement Agent, which fees and expenses shall not exceed $12,500) that shall
have been incurred by the Placement Agent in connection with the proposed
placement of the Securities. The Sponsor shall not in any event be liable to the
Placement Agent for the loss of anticipated profits from the transactions
contemplated by this Placement Agreement.
4. REPRESENTATIONS AND WARRANTIES. Each Trust Party hereby
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represents, warrants and agrees to and with the Placement Agent that, as of the
Closing Date, and as to itself only and not as to the other:
(a) with respect to the Issuer, it is duly formed and validly
existing under the laws of the State of Delaware and, with respect to the
Sponsor, and its significant subsidiaries (as defined in Rule 1-02 of Regulation
S-X) (the "Significant Subsidiaries"), each is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, in
each case, with all requisite power and authority to own or transfer, as
applicable, the Debentures, to conduct its business as required under the
Declaration, this Agreement, or any other documents relating to or otherwise in
connection with the issue and sale of the Securities (collectively, the
"Transaction Documents") and to perform its obligations hereunder and under each
Transaction Document, and is lawfully qualified to do business and is in good
standing in those jurisdictions in which it conducts business and where the
failure to be so qualified or in good standing would have a material adverse
effect on the condition (financial or otherwise), earnings or business of such
Trust Party, whether or not occurring in the ordinary course of business or
would otherwise be material in context of the issuance of the Securities
("Material Adverse Effect");
(b) this Agreement has been duly authorized, executed and
delivered by such Trust Party and constitutes, and each of the Transaction
Documents to which such Trust Party is a party has been duly authorized by such
Trust Party and, when duly executed and delivered by the Placement Agent and the
other parties thereto (if any), on the Closing Date, will constitute, legal,
valid and binding obligations of such Trust Party, except as such obligations
may be limited by bankruptcy, insolvency, reorganization and other similar laws
affecting the rights of creditors generally and the application of general
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law);
(c) neither the Issuer nor the Sponsor nor any of the
Significant Subsidiaries is in breach or violation of, or default under, with or
without notice or lapse of time or both, its corporate charter, bylaws or other
governing documents (including without limitation, the Declaration);
(d) all of the issued and outstanding capital stock of the
Sponsor has been duly authorized and validly issued and is fully paid and
nonassessable;
(e) other than as set forth in Schedule 4(e), all of the issued
and outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable, and is owned by
the Sponsor, directly or through subsidiaries, free of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right; and none of the
issued and outstanding capital stock of the Sponsor or its Significant
Subsidiaries was issued in violation of any preemptive or similar rights arising
by operation of law, under the charter, by-laws or code of regulations of the
Sponsor or any of its Significant Subsidiaries or under any agreement to which
the Sponsor or any of its Significant Subsidiaries is a party or is otherwise
bound;
(f) with respect to the Issuer, on the Closing Date, the
Securities will have been duly authorized by the Issuer and, when duly executed,
authenticated, issued and delivered in accordance with the Declaration against
payment therefor as contemplated herein, will be validly issued and represent
undivided beneficial interests in the assets of the Issuer, entitled to the
benefits provided by the Declaration;
(g) with respect to the Issuer, no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue, sale or delivery of the
Securities, except for those which have been obtained and are in full force and
effect, and no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the consummation of the other transactions contemplated by the Transaction
Documents, except for those which have been obtained and are in full force and
effect, and except where the failure to obtain such consent, approval,
authorization, order, registration or qualification would not have a Material
Adverse Effect;
(h) the execution and delivery of the Transaction Documents,
the issue of the Securities and the consummation of the other transactions
contemplated by the Transaction Documents (and compliance with the terms
thereof) do not and will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under the organizational
documents of such Trust Party; and the execution and delivery of the Transaction
Documents, the issue of the Securities and the consummation of the other
transactions contemplated by the Transaction Documents (and compliance with the
terms thereof) do not and will not conflict with or result in a breach of any
indenture, trust deed, mortgage or other agreement or instrument to which such
Trust Party is a party or by which it or any of its properties is bound, or
infringe any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental body or court, domestic or foreign,
having jurisdiction over such Trust Party or any of its properties, except for
such conflicts, breaches, defaults or infringements that would not have a
Material Adverse Effect;
(i) there are no pending actions, suits or proceedings against
or affecting such Trust Party or any of its properties and, to the best of such
Trust Party's knowledge, no such suits or proceedings are threatened or
contemplated that individually or in aggregate could reasonably be expected to
have a Material Adverse Effect on the Issuer's issuance of the Securities;
(j) no event has occurred since January 1, 2007 which, had the
applicable Securities already been issued, would reasonably be expected to
(whether or not with the giving of notice and/or the passage of time and/or the
fulfillment of any other requirement) constitute an Event of Default under the
Declaration;
(k) neither the Issuer nor any affiliate of the Issuer nor any
person acting on behalf thereof has made offers or sales of the Securities under
circumstances that would require the registration of the Securities under the
U.S. Securities Act of 1933, as amended (the "Securities Act");
(l) with respect to the Issuer, any taxes, fees and other
governmental charges in connection with the execution and delivery of this
Agreement and any Transaction Document or the execution, delivery and sale of
the Securities have been or will be paid on or prior to the Closing Date;
(m) there are no contracts, agreements or understandings
between any of the Trust Parties or any affiliate thereof and any person
granting such person the right to require the Issuer to file a registration
statement under the Securities Act, with respect to any Securities owned or to
be owned by such person; and
(n) in the case of each offer or sale of Securities, no form
of general solicitation or general advertising was used by the Issuer or its
representatives, including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper, magazine or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
Neither the Issuer nor any person acting on its behalf (other than the Placement
Agent) has offered or sold, nor will the Issuer or any person acting on its
behalf (other than the Placement Agent) offer or sell directly or indirectly,
any Securities or any other security in any manner that, assuming the accuracy
of the representations and warranties and the performance of the covenants given
by the Placement Agent, would reasonably be expected to render the issuance and
sale of any of the Securities as contemplated hereby a violation of Section 5 of
the Securities Act or the registration or qualification requirements of any
state securities laws, nor has the Issuer authorized, nor will it authorize, any
person to act in such manner.
(o) The audited consolidated financial statements (including
the notes thereto) and schedules of the Sponsor and its consolidated
subsidiaries for the year ended December 31, 2006 (the "Financial Statements")
and the interim unaudited consolidated financial statements of the Sponsor and
its consolidated subsidiaries for the period ended June 30, 2007 (the "Interim
Financial Statements") provided to the Placement Agent are the most recent
available audited and unaudited consolidated financial statements of the Sponsor
and its consolidated subsidiaries, respectively, and fairly present in all
material respects, in accordance with generally accepted accounting principles,
the financial position of the Sponsor and its consolidated subsidiaries, and the
results of operations and changes in financial condition as of the dates and for
the periods therein specified, subject, in the case of Interim Financial
Statements, to year-end adjustments. There has been no material adverse change
or development with respect to the Financial Statements or earnings of the
Sponsor and its subsidiaries, taken as a whole. Such consolidated financial
statements and schedules have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The accountants of the Sponsor who
certified the Financial Statements are independent public accountants of the
Sponsor and its Subsidiaries within the meaning of the Securities Act and the
rules and regulations thereunder as in effect on the date of this Agreement.
(p) The Sponsor's report on FR Y-9C and FR Y-9LP dated June 30,
2007, provided to the Placement Agent is the most recent available such report
and the information therein fairly presents in all material respects the
financial information of the Sponsor and its subsidiaries, required by such
form.
(q) Since the respective dates of the Financial Statements, the
Interim Financial Statements and the FR Y-9C and FR Y-9LP, there has been no
material adverse change or development with respect to the financial condition
or earnings of the Sponsor and its subsidiaries, taken as a whole.
(r) The Sponsor is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "Bank Holding
Company Act"), and the regulations of the Board of Governors of the Federal
Reserve System (the "Federal Reserve"), and the deposit accounts of the
Sponsor's subsidiary depository institutions are insured by the Federal Deposit
Insurance Corporation ("FDIC") to the fullest extent permitted by law and the
rules and regulations of the FDIC, and no proceeding for the termination of such
insurance is pending or, to the knowledge of the Sponsor, threatened.
(s) Neither the Sponsor nor any of its Significant Subsidiaries
is subject to or party to, or has received any notice or advice that any of them
may become subject to any investigation with respect to, any cease-and-desist
order, agreement, consent decree, memorandum of understanding or other
regulatory enforcement action, proceeding or order with or by, or is a party to
any commitment letter or similar undertaking to, or is subject to any directive
by, or has been a recipient of any supervisory letter from, or has adopted any
board resolutions at the request of, any Regulatory Agency (as defined below)
that currently restricts in any material respect the conduct of their business
or that in any material manner relates to their capital adequacy, their credit
policies or their management or their business (each, a "Regulatory Agreement"),
nor has the Sponsor or any of its subsidiaries been advised by any Regulatory
Agency that it is considering issuing or requesting any such Regulatory
Agreement; and there is no unresolved violation, criticism or exception by any
Regulatory Agent with respect to any report or statement relating to any
examinations of the Sponsor or any of its Significant Subsidiaries which, in the
reasonable judgment of the Sponsor, is expected to result in a Material Adverse
Effect. As used herein, the term "Regulatory Agency" means any federal or state
agency charged with the supervision or regulation of depositary institutions or
holding companies of depository institutions, or engaged in the insurance of
depository institution deposits, or any court, administrative agency or
commission or other governmental agency, authority or instrumentality having
supervisory or regulatory authority with respect to the Sponsor or its
Significant Subsidiaries.
(t) The Sponsor has no present intention to exercise its option
to defer payments of interest on the Debentures as provided in the Indenture.
The Sponsor believes that the likelihood that it would exercise its right to
defer payments of interest on the Debentures as provided in the Indenture at any
time during which the Debentures are outstanding is remote.
(u) The Sponsor is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases properties or conducts
business, except where the failure to be so qualified would not, singularly or
in the aggregate, have a Material Adverse Effect, and holds all approvals,
authorizations, orders, licenses, certificates and permits from governmental
authorities necessary for the conduct of its business, except where the failure
to hold such approvals, authorizations, orders, licenses, certificates and/or
permits would not, singularly or in the aggregate, have a Material Adverse
Effect. Each of the Significant Subsidiaries is duly qualified to do business as
a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or leases
properties or conducts business, except where the failure to be so qualified
would not, singularly or in the aggregate, have a Material Adverse Effect, and
holds all approvals, authorizations, orders, licenses, certificates and permits
from governmental authorities necessary for the conduct of its business, except
where the failure to hold such approvals, authorizations, orders, licenses,
certificate and/or permits would not, singularly or in the aggregate, have a
Material Adverse Effect.
5. UNDERTAKINGS BY THE ISSUER. The Issuer agrees with the
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Placement Agent as follows:
(a) Neither the Issuer, nor any of its affiliates nor any
person authorized to act on its behalf (other than the Placement Agent), will
engage in any directed selling efforts with respect to the Securities to any
U.S. Person except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act. Terms used in
this paragraph have the meanings given to them by Regulation S under the
Securities Act.
(b) Neither the Issuer, nor any of its affiliates nor any
person authorized to act on its behalf (other than the Placement Agent), will
make offers or sales of Securities under circumstances that would require the
registration of the Securities under the Securities Act.
(c) For so long as any of the Securities are outstanding and
are "restricted securities" within the meaning of Rule 144, the Issuer will
provide or cause to be provided to any holder of Securities and any prospective
purchaser of the Securities designated by such a holder, upon the request of
such holder or prospective purchaser, the information required to be provided to
such holder or prospective purchaser by Rule 144A(d)(4).
(d) During the period from the date of this Agreement to the
Closing Date, the Sponsor and the Issuer shall use their best efforts to cause
their representations and warranties contained in Section 4 hereof to be true as
of the Closing Date, after giving effect to the transactions contemplated by
this Agreement, as if made on and as of the Closing Date.
(e) The Sponsor and the Issuer will not claim and will actively
resist any attempts by others to claim the benefits of any usury laws against
holders of Capital Securities or the Debentures.
(f) The Sponsor shall not identify the Placement Agent i
n a press release or any other written public statement without the consent of
such Placement Agent, except as required by applicable law.
6. SELLING RESTRICTIONS. The Placement Agent represents and
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warrants to the Issuer that:
(a) It understands that the Securities have not been and will
not be registered under the Securities Act and may not be offered or sold within
the United States except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act. It has not
offered or sold, and will not offer or sell, the Securities within the United
States except to persons whom it reasonably believes to be (a) Qualified
Institutional Buyers (as defined in Rule 144A under the Securities Act), (b)
institutional Accredited Investors (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) or (c) a person who is not a "U.S. Person" (as
such term is defined in Rule 902 under the Securities Act) that is not acquiring
the Securities for the account or benefit of any U.S. Person in an offer and
sale that constitutes an "offshore transaction" under Regulation S of the
Securities Act. In connection with any offer or sale in the United States or to
or for the benefit of a U.S. Person, it will take reasonable steps to ensure
that the purchaser of such Securities is aware that such offer or sale is being
made in reliance on Rule 144A or Regulation D in a manner that would not require
registration of the Securities under the Securities Act or any blue sky law of
any State and that future transfers of the Securities may not be made except in
compliance with applicable securities laws.
(b) Neither it nor any person acting on its behalf has engaged
or will engage in any form of general solicitation or general advertising (as
those terms are used in Rule 502(c) of Regulation D) in connection with any
offer or sale of the Securities in the United States.
(c) It will not offer or sell the Securities outside the United
States, except in accordance with the representations described herein and the
restrictions set forth below:
It has offered and sold the Securities, and will offer and sell the
Securities, during the applicable Distribution Compliance Period (as
defined in Rule 902 of Regulation S), only in accordance with Rule 903
or 904 of Regulation S under the Securities Act. Accordingly, it
represents and agrees that neither it, nor any of its affiliates nor
any person acting on its or their behalf has engaged or will engage in
any directed selling efforts with respect to the Securities, and that
it and they have complied and will comply with the offering
restriction requirements of Regulation S. It agrees that, at or prior
to the confirmation of sale of Securities, it shall have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases the Securities through it during the
applicable Distribution Compliance Period a confirmation or notice of
substantially the following effect:
"The Securities offered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. Persons (i) as part of their
distribution at any time or (ii) until forty calendar days after
the later of the commencement of the offering of the Securities
or the Closing Date, to persons other than the Placement Agent or
other distributors in reliance on Regulation S and the Closing
Date, except in either case in accordance with Regulation S or
Regulation D or other exemptive provisions under the Securities
Act. Terms used above have the meanings given to them by
Regulation S."
(d) It acknowledges that no action has been or will be taken by
the Issuer or any other person that would permit the offer or sale of the
Securities in any jurisdiction where action to implement such offer or sale of
the Securities is required. The Placement Agent shall not offer or sell any
Securities in any jurisdiction except in compliance with applicable law, and the
Placement Agent agrees, at its own expense, to comply with all such laws. The
Placement Agent shall at its own expense obtain any consent, approval or
authorization required for it to offer or sell the Securities under the laws or
regulations of any jurisdiction where it proposes to make offers or sales of
Securities.
7. CONDITIONS PRECEDENT. The obligations of the Placement
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Agent hereunder shall be subject to the accuracy of the representations and
warranties of each Trust Party contained herein as of the date hereof, and, as
of the Closing Date (as if made on the Closing Date), to the accuracy of the
statements of each Trust Party made in any certificates delivered pursuant
hereto on such date, to the performance by each Trust Party of its obligations
hereunder, and to the following additional conditions:
(a) The Issuer shall have obtained all governmental
authorizations required, if any, in connection with the issue and sale of the
Securities and the performance of its obligations hereunder and under the
Transaction Documents to which it is a party.
(b) Each Trust Party shall have furnished to the Placement
Agent a certificate of such Trust Party signed by, in the case of the Issuer, an
Administrator and, in the case of the Sponsor, the principal executive,
financial or accounting officer of the Issuer, dated the Closing Date, to the
effect that such signatory has examined this Agreement and that the
representations and warranties of such party in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and such party has performed all its
obligations and satisfied all the conditions on its part to be satisfied at or
prior to the Closing Date.
(c) The Placement Agent, the Trustees and the Purchaser (as
defined below) shall have been furnished with the opinion of counsel for the
Trust Parties substantially in the form set out in Annex A dated on the date
hereof and in a form reasonably acceptable to the Placement Agent.
(d) The conditions precedent to the performance by the Issuer
of its obligations under the Declaration shall have been satisfied or waived.
(e) Prior to the Closing Date, the Issuer shall furnish to the
Placement Agent such further information, certificates and documents as the
Placement Agent may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates referred to in or contemplated by this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Placement Agent and its counsel, this Agreement and all
obligations of the Placement Agent hereunder may be canceled by the Placement
Agent at, or at any time prior to, the Closing Date. Notice of such cancellation
shall be given to the Issuer in writing or by telephone or facsimile confirmed
in writing.
8. INDEMNIFICATION.
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(a) Each Trust Party agrees, jointly and severally, to
indemnify and hold harmless the Placement Agent and each person, if any, who
controls the Placement Agent within the meaning of the Securities Act, or the
U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
respective affiliates, officers, directors and employees of the Placement Agent
and each such person (and each and all referred to in Section 8(b) as an
"indemnified party"), against any losses, claims, damages or liabilities, joint
or several, to which the Placement Agent or such controlling person and the
respective affiliates, officers, directors and employees of the Placement Agent
and each such person may become subject, under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are connected with the execution and
delivery by such Trust Party, and the consummation by such Trust Party of the
transactions contemplated by, this Agreement or any other Transaction Document;
provided, however that each Trust Party will not be liable to an indemnified
party if and to the extent that any such loss, claim, damage or liability was
the result of negligence or willful misconduct of such indemnified party. Each
Trust Party agrees, jointly and severally, to reimburse the Placement Agent and
each such affiliate, officer, director, employee or controlling person for any
legal or other expenses reasonably incurred by the Placement Agent and each such
affiliate, officer, director, employee or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action
arising out of or being connected with the execution and delivery by such Trust
Party, and the consummation by such Trust Party of the transactions contemplated
by, this Agreement or the other Transaction Documents. This indemnity agreement
will be in addition to any liability that any of the Trust Parties may otherwise
have.
(b) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission and/or delay to so notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party unless
such omission and/or delay caused actual prejudice to the indemnifying party; in
case any such action is brought against any indemnified party, and it notified
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may elect by
written notice, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. Counsel provided by the indemnifying party may represent
the indemnifying party as well as all indemnified parties hereunder subject to
the following provisions. If the defendants in any action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to or in
conflict with those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. The reasonable fees and expenses of such
separate counsel for the indemnified party shall be paid by the indemnifying
party. Notwithstanding anything to the contrary contained herein, such
indemnified party may continue any such action on its own at its own expense.
The indemnifying party may avoid its duty to indemnify under this Section 8 if
the indemnified party, without the prior written consent of the indemnifying
party (which consent shall not be unreasonably withheld), effects any settlement
or compromise of, or consents to the entry of any judgment in, any pending or
threatened action in respect of which any indemnifying party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnifying party from all liability on any claims that are the subject matter
of such action. The indemnifying party shall not be liable for any settlement of
any claim effected without its consent.
9. CONTRIBUTION.
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(a) In order to provide for just and equitable contribution in
circumstances under which the indemnification provided for in Section 8 hereof
is for any reason held to be unenforceable for the benefit of an Indemnified
Party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Sponsor and the
Trust, on the one hand, and the Placement Agent, on the other hand, from the
offering of the Securities or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above, but also the
relative fault of the Sponsor and the Trust, on the one hand, and the Placement
Agent, on the other hand, in connection with the statements, omissions or
breaches, which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
(b) The Sponsor and the Trust and the Placement Agent agree
that it would not be just and equitable if contribution pursuant to this Section
9 were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 9. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an Indemnified Party and referred to above in this Section
9 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement, omission or alleged omission or breach or
alleged breach.
(c) No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(d) For purposes of this Section 9, the Placement Agent, each
person, if any, who controls the Placement Agent within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and the respective
partners, directors, officers, employees and agents of the Placement Agent or
any such controlling person shall have the same rights to contribution as the
Placement Agent, while each officer and director of the Sponsor, each trustee of
the Trust and each person, if any, who controls the Sponsor within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Sponsor and the Trust.
10. TERMINATION. This Agreement shall be subject to termination
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in the absolute discretion of the Placement Agent, by written notice given to
the Sponsor and the Issuer prior to delivery of and payment for the Securities,
if prior to such time (i) a downgrading shall have occurred in the rating
accorded the Sponsor's debt securities or preferred stock, if any, by any
"nationally recognized statistical rating organization," as that term is used by
the Commission in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, or such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Sponsor's debt
securities or preferred stock, if any, (ii) the Issuer shall be unable to sell
and deliver to PFW III, Ltd. or such other purchaser(s) of the Securities
acceptable to the Placement Agent (the "Purchaser") at least $15,000,000 stated
liquidation value of Securities, (iii) the Sponsor or any of its subsidiaries
that is an insured depository institution shall cease to be
"adequately-capitalized" within the meaning of 12 U.S.C. ss.1831 and applicable
regulations adopted thereunder, or any formal administrative or judicial action
is taken by any appropriate federal banking agency against the Sponsor or any
such insured subsidiary for unsafe and unsound banking practices, or violations
of law, (iv) a suspension or material limitation in trading in securities
generally shall have occurred on the New York Stock Exchange, (v) a suspension
or material limitation in trading in any of the Sponsor's securities shall have
occurred on the exchange or quotation system upon which the Sponsor's securities
are traded, if any, (vi) a general moratorium on commercial banking activities
shall have been declared either by federal or Delaware authorities or (vii)
there shall have occurred any outbreak or escalation of hostilities, or
declaration by the United States of a national emergency or war or other
calamity or crisis, including acts of terrorism, the effect of which on
financial markets is such as to make it, in the Placement Agent's judgment,
impracticable or inadvisable to proceed with the offering or delivery of the
Securities.
11. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The
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representations, warranties, agreements and undertakings in this Agreement shall
continue in full force and effect despite completion of the arrangements for the
issue and placement of the Securities or any investigation made by or on behalf
of the Placement Agent.
12. NOTICES.
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(a) Any communication shall be given by letter or facsimile, in
the case of notices to the Issuer, to it at:
First Bank Statutory Trust X
c/o First Banks, Inc.
600 James S. McDonnell Blvd.
Hazelwood, Missouri 63042
Facsimile: (314) 592-6640
Attention: Peter D. Wimmer
in the case of notices to the Sponsor, to it at:
First Banks, Inc.
600 James S. McDonnell Blvd.
Hazelwood, Missouri 63042
Facsimile: (314) 592-6640
Attention: Peter D. Wimmer
and in the case of notices to the Placement Agent, to it at:
Cohen & Company
2929 Arch Street, Suite 1703
Philadelphia, Pennsylvania 19104
Facsimile: (215) 701-8282
Attention: Asset Backed Securities
(b) Any such communication shall take effect, in the case of a
letter, at the time of delivery and in the case of facsimile, at the time of
dispatch.
(c) Any communication not by facsimile shall be confirmed by
letter but failure to send or receive the letter of confirmation shall not
invalidate the original communication.
13. GOVERNING LAW. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of New York without reference
to its conflict of laws provisions.
14. JURISDICTION. Each of the parties hereto hereby irrevocably
------------
submits to the non-exclusive jurisdiction of any New York State or United States
federal court sitting in The City and County of New York over any suit, action
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby which is brought by the Placement Agent, the Issuer or the
Sponsor and irrevocably waives, to the fullest extent it may effectively do so,
any objection which it may now or hereafter have to the laying of venue of any
such proceeding.
15. NO BANKRUPTCY PETITION. The Placement Agent covenants and
-----------------------
agrees that, prior to the date which is one year and one day after the payment
in full of all Securities issued by the Issuer, it will not institute against,
or join any other Person in instituting against, the Issuer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or state bankruptcy or similar law. The provisions
of this Section shall survive termination of this Agreement for any reason
whatsoever.
16. SUCCESSORS. This Agreement will inure to the benefit of and
----------
be binding upon the parties hereto and their respective successors and assigns,
and no other person will have any right or obligations hereunder.
17. COUNTERPARTS. This Agreement may be executed in any number
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of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
hereinabove set forth.
First Banks, Inc.
By: /s/ Lisa K. Vansickle
------------------------------------
Name: Lisa K. Vansickle
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Title: SVP - Chief Financial Officer
---------------------------------
First Bank Statutory Trust X
By: First Banks, Inc., as Sponsor
By: /s/ Lisa K. Vansickle
------------------------------------
Name: Lisa K. Vansickle
----------------------------------
Title: SVP - Chief Financial Officer
---------------------------------
Cohen & Company, as Placement Agent
By: /s/ E. Robert Kent III
------------------------------------
Name: E. Robert Kent III
----------------------------------
Title: Director
---------------------------------
ANNEX A
Pursuant to Section 7(c) of the Placement Agreement, special counsel
for the Offerors shall deliver an opinion in substantially the following form:
August 31, 2007
Ladies and Gentlemen:
We have acted as special counsel for First Banks, Inc., a Missouri
corporation (the "Company"), First Bank Statutory Trust X, a Delaware statutory
trust (the "Trust," and together with the Company, the "Offerors"), in
connection with the issue and sale by the Trust of 15,000 Capital Securities
(liquidation amount $1,000 per capital security) representing undivided
beneficial interests in the assets of the Trust (the "Capital Securities"), the
subsequent purchase by the Trust from the Company of $15,464,000 in aggregate
principal amount of Junior Subordinated Deferrable Interest Debentures (the
"Debt Securities") and the guarantee by the Company of the Capital Securities
pursuant to a Guarantee Agreement (the "Guarantee Agreement"). Capitalized terms
used but not defined herein shall have the meanings assigned to such terms in
the Placement Agreement effective as of August 29, 2007, by and among the
Company, the Trust and Cohen & Company (the "Placement Agreement"). This opinion
letter is furnished pursuant to the Placement Agreement.
We have examined originals or copies of (i) the Articles of
Incorporation of the Company, together with all amendments thereto ("Articles of
Incorporation"), (ii) the Bylaws of the Company, as amended ("Bylaws"), (iii)
certain resolutions of the Board of Directors of the Company, (iv) the
Certificate of Trust of the Trust as filed with the Secretary of State of the
State of Delaware on August 29, 2007, (v) the Declaration of Trust of the Trust
effective as of August 29, 2007 between the Company and LaSalle National Trust
Delaware, as trustee ("Delaware Trustee"), (vi) the Amended and Restated
Declaration of Trust (the "Declaration") effective as of August 31, 2007 among
the Company, the Delaware Trustee, LaSalle Bank National Association, as trustee
("Institutional Trustee") and administrators of the Trust (the
"Administrators"), (vii) the Guarantee Agreement effective as of August 31, 2007
between the Company and LaSalle Bank National Association, as Guarantee Trustee,
(viii) the Indenture effective as of August 31, 2007 between the Company and
LaSalle Bank National Association, as Debenture Trustee (the "Indenture"), and
(ix) such other documents and records as we have deemed necessary and relevant
for purposes hereof.
In addition, we have relied on certificates of public officials,
officers and employees of the Offerors and significant subsidiaries, if any,
(each a "Significant Subsidiary" and collectively, the "Significant
Subsidiaries") as to certain matters of fact relating to this opinion and have
made such investigations of law as we have deemed necessary and relevant as a
basis hereof. We have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents and records
submitted to us as originals, the conformity to original documents and records
of all documents and records submitted to us as copies, and the truthfulness of
all statements of fact contained therein.
Based on the foregoing and subject to the limitations and assumptions
set forth herein, and having due regard for such legal considerations as we deem
relevant, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Missouri, and is duly registered
as a holding company under applicable rules and regulations. To the best of our
knowledge, each of the Significant Subsidiaries is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and each of the Company and the Significant Subsidiaries has full corporate
power and authority to own or lease its properties and conduct its business as
such business is currently conducted in all material respects. To the best of
our knowledge, all outstanding shares of capital stock of the Significant
Subsidiaries have been duly authorized and validly issued and are fully paid and
nonassessable.
2. The issuance, sale and delivery of the Capital Securities and Debt
Securities in accordance with the terms and conditions of the Placement
Agreement, the Capital Securities Purchase Agreement, the Subscription
Agreements and the Operative Documents have been duly authorized by all
necessary actions of the Offeror's Board of Directors (the "Board"). All of the
Capital Securities have been duly and validly authorized by the Board and, when
delivered in accordance with the Placement Agreement, the Capital Securities
Purchase Agreement and the Subscription Agreements, will be duly and validly
issued, fully paid and nonassessable, and will conform to the description
thereof in the Declaration. 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, to the best of our knowledge, without a duty of inquiry, the
Significant Subsidiaries pursuant to the corporate Articles of Incorporation,
Bylaws or other governing documents (including without limitation, the
Declaration) or, to the best of our knowledge, any agreement or other instrument
to which either Offeror or any of the Significant Subsidiaries may be bound.
3. The Offerors have all requisite corporate and trust power to enter
into and perform their obligations under the Placement Agreement, the Capital
Securities Purchase Agreement and the Subscription Agreements, and the Placement
Agreement, the Capital Securities Purchase Agreement and the Subscription
Agreements have been duly and validly authorized, executed and delivered by the
Offerors and constitute the legal, valid and binding obligations of the Offerors
enforceable in accordance with their terms, except as the enforcement thereof
may be limited by general principles of equity and by bankruptcy, insolvency,
reorganization, receivership, moratorium, fraudulent conveyance or other laws
relating to or affecting creditors' rights generally, and except as the
indemnification and contribution provisions thereof may be limited under
applicable laws and certain remedies may not be available in the case of a
non-material breach.
4. Each of the Indenture, the Declaration and the Guarantee Agreement
has been duly authorized, executed and delivered by the Company, and (in the
case of the Indenture and the Guarantee, respectively, assuming it is duly
authorized, executed and delivered by the respective trustees) constitutes 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, fraudulent conveyance and other laws affecting the
rights and remedies of creditors generally and to general principles of equity.
5. The Debt Securities have been duly authorized, executed and
delivered by the Company, are entitled to the benefits of the Indenture and when
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Trust, will constitute 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, fraudulent conveyance and other laws affecting the
rights and remedies of creditors generally and to general principles of equity.
6. Neither of the Offerors nor any of the Significant Subsidiaries is
in breach or violation of, or default under, with or without notice or lapse of
time or both, its corporate charter, bylaws or other governing documents
(including without limitation, the Declaration). The execution, delivery and
performance of the Placement Agreement, the Capital Securities Purchase
Agreement and the Subscription Agreement and the consummation of the
transactions contemplated by the Placement Agreement, the Capital Securities
Purchase Agreement, the Subscription Agreement and the Declaration 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, to the best of our knowledge, the Significant Subsidiaries 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 articles of incorporation or charter, bylaws or
other governing documents (including without limitation, the Declaration) of the
Offerors or the Significant Subsidiaries or to the best of our knowledge,
without a duty of inquiry, any material contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise, license or any other
agreement or instrument to which the Offerors or the Significant 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, having jurisdiction over the Offerors or
the Significant Subsidiaries or any of their respective properties which, in
each case, is material to (i) the Offerors and the Significant Subsidiaries on a
consolidated basis and (ii) the transactions contemplated by the Placement
Agreement in connection with the offer and sale of the Capital Securities.
7. Except for filings, registrations, or qualifications that may be
required by securities laws, 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 the
laws of the State of Missouri in connection with the transactions contemplated
by the Placement Agreement in connection with the offer and sale of the Capital
Securities as contemplated by the Placement Agreement.
8. No action, suit or proceeding at law or in equity is pending or
threatened to which the Offerors or the Significant Subsidiaries is or may be a
party, and no action, suit or proceeding is pending or threatened against or
affecting the Offerors or the Significant 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 the Placement Agreement or the
issuance and sale of the Capital Securities as contemplated therein or the
condition (financial or otherwise), earnings, affairs, business, or results of
operations of the Offerors and the Significant Subsidiaries on a consolidated
basis.
9. Assuming the accuracy of the representations and warranties and
compliance with the agreements contained herein, it is not necessary in
connection with the offering, sale and delivery of the Capital Securities, the
Debt Securities and the Guarantee Agreement to register the same under the
Securities Act of 1933, as amended, under the circumstances contemplated in the
Placement Agreement and the Subscription Agreements, and the Indenture,
Declaration and Guarantee Agreement are not required to be qualified under the
Trust Indenture Act of 1939.
10. Neither the Company nor the Trust is an "investment company" or an
entity "controlled" by an "investment company", in each case within the meaning
of the Investment Company Act of 1940, as amended.
The foregoing opinion is, with your concurrence, predicated upon and
qualified in its entirety by the following:
(a) The foregoing opinion is based on and is limited to the law
of the State of New York, the General Corporation Law of the State of Delaware
and the relevant law of the United States of America.
(b) Whenever our opinion is based on circumstances "to the best
of our knowledge," "known to us," or similar expressions, we have relied
exclusively on certificates of officers or representatives of the Offerors or
the Significant Subsidiaries, as applicable (after discussing the contents
thereof with such officers), as to the existence or nonexistence of the
circumstances upon which our opinion is predicated. We have no reason to
believe, however, that any such certificate is untrue or inaccurate in any
material respect.
This opinion is delivered solely to you (except that a subsequent
purchaser may also rely on this opinion) and may not be used for any other
purpose and may not be quoted, circulated or published, in whole or in part, or
otherwise referred to or furnished to any other person other than your counsel,
without our express prior written authorization.