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EXHIBIT (1)-2
TBC CAPITAL STATUTORY TRUST
AND
THE BANC CORPORATION
AGREEMENT AMONG UNDERWRITERS
_______ __, 2000
STERNE, AGEE & LEACH, INC.
950 EAST PACES FERRY ROAD, SUITE 1475
ATLANTA, GEORGIA 30326-1119
AS REPRESENTATIVE
Gentlemen:
We wish to confirm as follows the agreement among you, the undersigned
and the other Underwriters named in Schedule I to the Underwriting Agreement, as
it is to be executed (all such parties being herein called the Underwriters,
with respect to the purchase by the Underwriters severally from TBC Capital
Statutory Trust and The Banc Corporation (hereinafter collectively referred to
as the "Company") of the respective number of Preferred Securities (hereinafter
the "Shares") set forth in Schedule I to the Underwriting Agreement. The number
of Shares to be purchased by each Underwriter from the Company shall be
determined in accordance with Section 2 of the Underwriting Agreement. It is
understood that changes may be made in those who are to be Underwriters and in
the respective numbers of Shares to be purchased by them, but that the number of
shares to be purchased by us as set forth in the Underwriting Agreement will not
be changed without our consent except as provided herein and in the Underwriting
Agreement. The obligations of the Underwriting Agreement, as they may be
increased by Section 2(c) of the Underwriting Agreement, are herein called their
"underwriting obligations." The number of Shares set opposite our name in said
Schedule I, as such number may be increased under said Section 2(c), are herein
called "our Shares." For purposes of this Agreement the following definitions
shall be applicable:
(a) "Manager's Concession" shall be the compensation to
you for acting as Manager as provided in paragraph 1. The Manager's
Concession shall include the contingent expense reimbursement set forth
in Section 12(e) but only to the extent of your pro rata payment or
allocation of the expenses being reimbursed.
(b) "Underwriting Group Concession" shall mean
compensation to members of the Underwriting Group for assuming the
underwriting risk and shall be not less than [_____ PERCENT (___%)] of
the underwriting discount on the Shares for which each Underwriter is
obligated hereunder.
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(c) "Dealer's Concession" shall mean compensation to
Dealers who are members of the Selling Group and shall, as to Dealers
who have executed an agreement, be not less than [_____ PERCENT (___%)]
of the underwriting discount.
(d) "Dealer's Reallowance Concession" shall mean the
compensation allowed Dealers by Underwriters other than the Manager and
shall be [_____ PERCENT (___%)] of the Dealer's Concession.
(e) It is contemplated that the underwriting commission
will be four percent (4%) of the offering price. You in your absolute
discretion shall determine, within the foregoing limitations, the
precise allocation of the underwriting discount.
1. Authority and Compensation of Representative. We hereby
authorize you as our Representative and on our behalf, (a) to enter into an
agreement with the Company substantially in the form attached hereto as Exhibit
A (the "Underwriting Agreement"), but with such changes therein as in your
judgment are not materially adverse to the Underwriters, (b) to exercise all the
authority and discretion vested in the Underwriters and in you by the provision
of the Underwriting Agreement, and (c) to take all such action as you in your
discretion may deem necessary or advisable in order to carry out the provisions
of the Underwriting Agreement and this Agreement and the sale and distribution
of the Shares, provided that the time within which the Registration Statement is
required to become effective pursuant to the Underwriting Agreement will not be
extended more than 48 hours without the approval of a majority in interest of
the Underwriters (including yourselves). We authorize you, in executing the
Underwriting Agreement on our behalf, to set forth in Schedule I of the
Underwriting Agreement as our commitment to purchase the number of Shares (which
shall not be substantially in excess of the number of Shares included in your
invitation to participate unless we have agreed otherwise) included in a wire,
telex, or similar means of communication transmitted by you to us at least 24
hours prior to the commencement of the offering as our finalized underwriting
obligation.
As our share of the compensation for your services hereunder, we will
pay you, and we authorize you to charge to our account, a sum equal to the
Manager's Concession.
2. Public Offering. A public offering of the Shares is to be
made, as herein provided as soon after the Registration Statement relating
thereto shall become effective as in your judgment is advisable. The Shares
shall be initially offered to the public at the public offering price as
determined by you and the Company. You will advise us by telegraph or telephone
when the Shares shall be released for offering and shall advise us at or prior
to that time of the allocation of the underwriting commission. We authorize you
as Representatives of the Underwriters, after the public offering, to vary the
public offering price, in your sole discretion, by reason of changes in general
market conditions or otherwise. The public offering price of the Shares at the
time in effect is herein called the "Offering Price."
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We hereby agree to deliver all preliminary and final prospectuses
required for compliance with the provisions of Rule 15c2-8 under the Securities
Exchange Act of 1934 and Section 5(b) of the Securities Act. You have heretofore
delivered to us such preliminary prospectuses as have been requested by us,
receipt of which is hereby acknowledged, and will deliver such final
Prospectuses as will be requested by us.
3. Offering to Dealers and Group Sales. We authorize you to
reserve for offering and sale, and on our behalf to sell, to institutions or
other retail purchasers (such sales being herein called "Group Sales") and or
dealers selected by you (such dealers being herein called "Dealers") all or any
part of our Shares as you may determine. Such sales of Shares, if any, shall be
made (i) in the case of Group Sales, at the Offering Price, and (ii) in the case
of sales to Dealers, at the Offering Price less the Dealer's Concession.
Any Group Sales shall be as nearly as practicable in proportion to the
underwriting obligations of the respective Underwriters. Any sales to Dealers
made for our account shall be as nearly as practicable in the ratio that the
Shares reserved for our account for offering to Dealers bears to the aggregate
of all Shares of all Underwriters including you so reserved. The over-allotment
option provided for in Section 2(c) to the extent exercised shall be exercised
by you as a Representative of the Underwriters, and shall be exercised only for
the purpose of making Group Sales or sales to Dealers by you. Such sales for our
account of the over-allotment option shall as nearly as practicable be in
proportion to the underwriting obligations of the respective Underwriters. On
any Group Sales or sales to Dealers, including those pertaining to the
over-allotment option, made by you on our behalf we shall be entitled to
received only the Underwriter's Concession.
You agree to notify us not less than 24 hours prior to the commencement
of the public offering as to the number of Shares, if any, which we may retain
for direct sale. Prior to the termination of this Agreement, you may reserve for
offering and sale as hereinbefore provided any Shares remaining unsold
theretofore retained by us and we may, with your consent, retain any Shares
remaining unsold theretofore reserved by you.
Sales to Dealers shall be made under a Master Selected Dealers
Agreement, attached hereto as Exhibit B, attached hereto and by this reference
incorporated herein. We authorize you to determine the form and manner of any
communications with Dealers and to make such changes in the Master Selected
Dealers Agreement as you may deem appropriate. In the event that there shall be
any such agreements with Dealers, you are authorized to act as managers
thereunder and we agree, in such event, to be governed by the terms and
conditions of such agreements. Each Underwriter agrees that it will not offer
any of the Shares for sale at a price below the Offering price or allow any
concession therefrom except as herein otherwise provided. We as to our Shares
may enter into agreement with dealers, but any Reallowance Concession shall not
exceed half of the Dealer's Concession.
It is understood that any person to whom an offer may be made as
hereinbefore provided shall be a member of the National Association of
Securities Dealers, Inc. ("NASD") or dealers or
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institutions with their principal place of business located outside of the
United States, its territories or possessions and not registered under the
Securities Exchange Act of 1934 who agree to make no sales within the United
States, its territories or possessions or to persons who are nationals thereof
or residents therein and, in making sales, to comply with IM-2110-1 under
Conduct Rule 2110 of the Conduct Rules of the NASD ("Conduct Rules"), relating
to "Free-Riding and Withholding," in making sales to purchasers outside the
United States, and agrees in writing to comply with Conduct Rules 2730, 2740 and
2750 and Conduct Rule 2420 (as such Conduct Rules apply to foreign nonmembers).
We authorize you to determine the form and manner of any public
advertisement of the Shares.
Nothing in this Agreement contained shall be deemed to restrict our
right, subject to the provisions of this Section 3, to offer our Shares prior to
the effective date of the Registration Statement, provided that any such offer
shall be made in compliance with any applicable state securities laws.
4. Repurchases in the Open Market. Any Shares sold by us
(otherwise than through you) which, prior to the termination of this Section or
such earlier date as you may determine, shall be contracted for or purchased in
the open market by you on behalf of any Underwriter or Underwriters, shall be
repurchased by us on demand at a price equal to the cost of such purchase plus
commissions and taxes on redelivery. Any Shares delivered on such repurchase
need not be the identical Shares originally sold by us. In lieu of delivery of
such Shares to us, you may (i) sell such Shares in any manner for our account
and charge us with the amount of any loss or expense or credit us with the
amount of any profit, less any expense, resulting from such sale, or (ii) charge
our account with an amount not in excess of the concession to Dealers on such
Shares.
5. Delivery and Payment. We agree to deliver to you at or before
10:00 A.M. EST on the Closing Date referred to in the Underwriting Agreement, at
your office, a certified or bank cashier's check payable to the order of
"Sterne, Agee & Leach, Inc." for the offering price of the Shares less Dealer's
Concession of the Shares which we retained for direct sale by us, the proceeds
of which check shall be delivered by you, in the manner provided in the
Underwriting Agreement, to or for the account of the Company against delivery of
certificates for such Shares to you for our account. You are authorized to
accept such delivery and to give receipts therefor. You may advance funds for
Shares which have been sold or reserved for sale to retail purchasers or Dealers
for our account. If we fail (whether or not such failure shall constitute a
default hereunder) to deliver to you, or you fail to receive, our check and/or
payment for sales made by you for our account for the Shares which we have
agreed to purchase, you, individually and not as Representative of the
Underwriters, are authorized (but shall not be obligated) to make payment, in
the manner provided in the Underwriting Agreement, to or for the account of the
Company for such Shares for our account, but any such payment by you shall not
relive us of any of our obligations under the Underwriting Agreement or under
this Agreement and we agree to repay you on demand the amount so advanced for
our account.
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We also agree on demand to take up and pay for or to deliver to you
funds sufficient to pay for at cost any Shares and other shares of common stock
of the Company purchased by you for our account pursuant to the provisions of
Section 9 hereof, and to deliver to you on demand any Shares sold or
over-allotted by you for our account pursuant to any provision of this
Agreement.
We authorize you to deliver our Shares, and any other shares purchased
by you for our account pursuant to the provisions of Section 9 hereof, against
sales made by you for our account pursuant to any provision of this Agreement.
Upon receipt by you of payment for the Shares sold by us and/or through
you for our account, you will remit to us promptly an amount equal to the
Underwriter's concession on such Shares. You agree to cause to be delivered to
us, as soon as practicable after the Closing Date referred to in the
Underwriting Agreement, such part of our Shares purchased on such Closing Date
as shall not have been sold or reserved for sale by you for our account.
In case any Shares reserved for sale in Group Sales or to Dealers shall
not be purchased and paid for in due course as contemplated hereby, we agree to
accept delivery when tendered by you of any Shares so reserved for our account
and not so purchased and pay you the offering price less the Dealer's and
Underwriter's Concessions.
6. Authority to Borrow. We authorize you to advance your funds
for our account (charging current interest rates) and to arrange loans for our
account for the purpose of carrying out this Agreement, and in connection
therewith to execute and deliver any notes or other instruments and to hold or
pledge as security therefor all or any part of our Shares or any other shares of
common stock of the Company purchased hereunder for our account. Any lending
bank is hereby authorized to accept your instructions as Representatives in all
matters relating to such loans. Any part of our Shares or of such other common
stock held by you may be delivered to us for carrying purposes and, if so
delivered, will be redelivered to you upon demand.
7. Allocation of Expense and Liability. We authorize you to
charge our account with and we agree to pay (a) all transfer taxes on sales made
by you for our account, except as herein otherwise provided, and (b) our
proportionate share (based on our underwriting obligations) of all expenses in
excess of those reimbursed by the Company incurred by you in connection with the
purchase, carrying and distribution, or proposed purchase and distribution, of
the Shares and all other expenses rising under the terms of the Underwriting
Agreement or this Agreement. Your determination of all such expenses and any
your allocation thereof shall be final and conclusive. Funds for our account at
any time in your hands as our Representative may be held in your general funds
without accountability for interest. As soon as practicable after the
termination of this Agreement, the net credit or debit balance in our account,
after proper charge and credit for all interim payments and receipts, shall be
paid to or paid by us, provided that you in your discretion may reserve from
distribution an amount to cover possible additional expenses chargeable to the
several Underwriters.
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8. Liability for Future Claims. Neither any statement by you, as
Representative of the Underwriters, of any credit or debit balance in our
account nor any reservation from distribution to cover possible additional
expenses relating to the Shares shall constitute any representation by you as to
the existence or non-existence of possible unforeseen expenses or liabilities of
or charges against the several Underwriters. Notwithstanding the distribution of
any net credit balance to us or the termination of this Agreement or both, we
shall be and remain liable for, and will pay on demand, (a) our proportionate
share (based on our underwriting obligations) of all expenses and liabilities
which may be incurred by or for the accounts of the Underwriters, including any
liability which may be incurred by the Underwriters or any of them based on the
claim that the Underwriters constitute an association, unincorporated business,
partnership or any separate entity, and (b) any transfer taxes paid after such
settlement on account of any sale or transfer for our account.
9. Stabilization. We authorize you, until the termination of this
Agreement, (a) to make purchases and sales of the shares of common stock of the
Company, in the open market or otherwise, for long or short account, and on such
terms and at such prices as you in your discretion may deem desirable, (b) in
arranging for sales of Shares, to over-allot, and (c) either before or after the
termination of this Agreement, to cover any short position incurred pursuant to
this Section 9; subject, however, to the applicable rules and regulations of the
Securities and Exchange Commission under the Securities Exchange Act of 1934.
All such purchases, sales and over-allotments shall be made for the accounts of
the several Underwriters as nearly as practicable in proportion to their
respective underwriting obligations; provided that our net position resulting
from such purchase and sales and over-allotments shall not at any time exceed,
either for long or short account, 15% of the number of Shares agreed to be
purchased by us.
If you engage in any stabilizing transactions as Representative of the
Underwriters, you shall promptly notify us of the first stabilizing purchase and
the termination thereof. Each of us agrees to file with you, within three
business days following the date of any stabilizing purchase, such notice as
required by Rule 17a-2(d), under the Securities Exchange Act of 1934. You shall,
as such Representative, file such reports with, and make the requisite reports
on such transactions as required by, the Securities and Exchange Commission in
accordance with Rule 17a-2 under the Securities Exchange Act of 1934.
We agree to advise you, from time to time upon request until the
settlement of accounts hereunder, of the number of Shares at the time retained
by us unsold, and we will upon request sell to you for the accounts of one or
more of the several Underwriters such number of our unsold Shares as you may
designate, at the Offering Price less such amount, not in excess of the
concession to Dealers, as you may determine.
10. Open Market Transactions. We agree that except with your
consent and except as herein provided upon advice from you we will not make
purchases or sales on the open market or otherwise or attempt to induce others
to make purchases or sales, either before or after the purchase of the Shares,
of any shares of Preferred Securities of the Company, and prior to the
completion (as defined in Regulation M of the Securities and Exchange Commission
under the Securities Exchange
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Act of 1934) of our participation in the distribution, we will otherwise comply
with Regulation M. Nothing in this Section 10 contained shall prohibit us from
acting as broker or agent in the execution of unsolicited orders of customers
for the purchase or sale of any securities of the Company.
11. Blue Sky. Prior to the initial offering by the Underwriters,
you will inform us as to the states under the respective securities or Blue Sky
laws of which it is believed that the Shares have been qualified or are exempt
for sale, but you do not assume any responsibility or obligation as to the
accuracy of such information or as to the right of any Underwriter or Dealer to
sell the Shares in any jurisdiction. We authorize you, if you deem it
unadvisable in arranging sales of Shares for our account hereunder to sell any
of our Shares to any particular Dealer or other buyer because of the securities
or Blue Sky laws of any jurisdiction, to sell our Shares to one or more other
Underwriters at the Offering Price less, in the case of a sale to a Dealer, such
amount, not in excess of the concession to Dealers thereon, as you may
determine. The transfer tax on any such sales among Underwriters shall be
treated as an expense and charged to the respective accounts of the several
Underwriters in proportion to their respective underwriting obligations.
12. Default by Underwriters. Default by one or more Underwriters
in respect of their obligations under the Underwriting Agreement shall not
release us from any of our obligations. In case of such default by one or more
Underwriters, you are authorized to increase, pro rata with the other
non-defaulting Underwriters, the number of Shares which we shall be obligated to
purchase from the Company, provided that the aggregate amount of all such
increases for all non-defaulting Underwriters shall not exceed 10% of the
Shares, and, if the aggregate number of the Shares not taken up by such
defaulting Underwriters exceeds such 10%, you are further authorized, but shall
not be obligated, to arrange for the purchase by other persons, who may include
yourselves, of all or a portion of the Shares not taken up by such Underwriters.
In the event any such increases or arrangements are made, the respective members
of Shares to be purchased by the non-defaulting Underwriters and by any such
other person or persons shall be taken as the basis for the underwriting
obligations under this Agreement, but this shall not in any way affect the
liability of any defaulting Underwriters to the other Underwriters for damages
resulting from such default.
In the event of default by one or more Underwriters in respect of their
obligations under this Agreement to take up and pay for any shares of common
stock purchased by you for their respective accounts pursuant to Section 9
hereof, or to deliver any such shares of common stock sold or over-allotted by
you for their respective accounts pursuant to any provisions of this Agreement,
and to the extent that arrangements shall not have been made by you for other
persons to assume the obligations of such defaulting Underwriter or
Underwriters, each non-defaulting Underwriter shall assume its proportionate
share of the aforesaid obligations of each such defaulting Underwriter without
relieving any such defaulting Underwriter of its liability therefor.
13. Termination of Agreement. Unless earlier terminated by you,
the provisions of Sections 2, 3, 4, 6, 9 and 10 of this Agreement shall, except
as otherwise provided therein, terminate thirty full business days after the
effective date of the Registration Statement herein referred to, but may be
extended by you for an additional period or periods not exceeding thirty full
business days
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in the aggregate. You may, however, terminate this Agreement or any provisions
hereof at any time by written or telegraphic notice to us.
14. General Position of the Representative. In taking action under
this Agreement, you shall act only as agent of the several Underwriters. Your
authority as Representative of the several Underwriters shall include the taking
of such action as you may deem advisable in respect of all matters pertaining to
any and all offers and sales of the Shares, including the right to make any
modifications which you consider necessary or desirable in the arrangements with
Dealers or others. You shall be under no liability for or in respect of the
value of the Shares or the validity or the form thereof, the Registration
Statement, the Prospectus, the Underwriting Agreement or other instruments
executed by the Company or others; or for or in respect of the issuance,
transfer or delivery of any of the Shares; or for the performance by the Company
or others of any agreement on its or their part; nor shall you as such
Representative or otherwise be liable under any of the provisions hereof or for
any matters connected herewith, except for want of good faith, and except for
any liability arising under the Securities Act of 1933; and no obligation not
expressly assumed by you as such Representative herein shall be implied from
this Agreement. In representing the Underwriters hereunder, you shall act as the
Representative of each of them respectively. Nothing herein contained shall
constitute the several Underwriters partners with you or with each others, or
render any Underwriter liable for the commitments of any other Underwriter,
except as otherwise provided in Section 12 hereof. The commitments and
liabilities of each of the several Underwriters are several in accordance with
their respective underwriting obligations and are not joint.
15. Acknowledgment of Registration Statement, etc. We hereby
confirm that we have examined the Registration Statement (including all
amendments thereto) relating to the Shares as heretofore filed with the
Securities and Exchange Commission, that we are familiar with the amendment to
the Registration Statement and the final form of Prospectus proposed to be
filed, that we are willing to accept the responsibilities of an underwriter
thereunder, and that we are willing to proceed as therein contemplated. We
further confirm that the statements made under the heading "Underwriting" in
such proposed final form of Prospectus are correct and we authorize you so to
advise the Company on our behalf. We understand that the aforementioned
documents are subject to further change and that we will be supplied with copies
of any amendment or amendments to the Registration Statement and of any amended
Prospectus promptly, if and when received by you, but the making of such changes
and amendments shall not release us or affect our obligations hereunder or under
the Underwriting Agreement.
16. Indemnification. Each Underwriter, including you, agrees to
indemnify and hold harmless each other Underwriter and each person who controls
any other Underwriter within the meaning of Section 15 of the Securities Act of
1933, as amended, to the extent of their several commitment under the
Underwriting Agreement and upon the terms that such Underwriter agrees to
indemnify and hold harmless the company as set forth in Section 8 of the
Underwriting Agreement. The agreement contained in this Section 16 shall survive
any termination of this Agreement Among Underwriters.
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17. Capital Requirements. We confirm that our ratio of aggregate
indebtedness to net capital is such that we may, in accordance with and pursuant
to Rule 15c3-1, promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, agree to purchase the number of shares we may
be obligated to purchase under any provision of the Underwriting Agreement or
this Agreement.
18. NASD Membership. We understand that you are a member in good
standing of the NASD. We hereby confirm that we are a member in good standing of
the NASD who agree to comply with all applicable Conduct Rules of the NASD, or,
if we are not such a member, we are a foreign dealer not eligible for membership
in the NASD (a) who hereby agree to make no sales within the United States, its
territories or its possessions (except that we may participate in Group Sales
under Section 3 above) or to persons who are citizens thereof or residents
therein, and, in making sales to comply with the above-mentioned IM-2110-l under
Conduct Rule 2110, as if we were an NASD member and agree in writing to comply
with Conduct Rules 2730, 2740, 2750 and 2420 as it applies to a non-member
broker or dealer in a foreign country, and (b) who in connection with sales and
offers to sell Stock made by us outside the United States, (i) we either furnish
to each person to whom any such sale or offer is made a copy of the then current
Preliminary Prospectus or the Prospectus (as then amended or supplemented if the
Company shall have furnished amendments or supplements thereto), as the case
maybe, or inform such person that such Preliminary Prospectus or Prospectus will
be available upon request, and (ii) will furnish to each person to whom any such
sale or offer is made such prospectus, advertisement or other offering document
containing information relating to the Stock or the Company as may be required
under the law of the jurisdiction in which such sale or offer is made. Any
prospectus, advertisement or other offering document furnished by us to any
person in accordance with clause (b)(ii) of the preceding sentence and any such
additional material as we may furnish to any person (i) shall comply in all
respects with the law of the jurisdiction in which it is so furnished; (ii)
shall be prepared and so furnished at our sole risk and expense; and (iii) shall
not contain information relating to the Stock or the Company which is
inconsistent in any respect with the information contained in the then current
Preliminary Prospectus or in the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto), as the
case may be.
19. Miscellaneous. We have transmitted herewith a completed
Underwriters' Questionnaire on the form thereof supplied by you. Any notice
hereunder from you to us or from us to you shall be deemed to have been duly
given if sent by registered mail, telegram, teletype, telex, telecopier, graphic
scan, or other written form of telecommunication to us at our address as set
forth in the Underwriting Agreement, or to you at Sterne, Agee & Leach, Inc.,
950 East Paces Ferry Road, Suite 1475, Atlanta, Georgia 30326-1119, Attn:
Kimberly Medley.
This instrument may be signed by the Underwriters in various
counterparts which together shall constitute one and the same agreement among
all the Underwriters and shall become effective upon execution. In no event,
however, shall we have any liability under this Agreement if the Underwriting
Agreement is not executed.
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Please confirm that the foregoing correctly states the understanding
between us by signing and returning to us a counterpart hereof.
Very truly yours,
-----------------------------------------------
Attorney-in-Fact for the several Underwriters
named in Schedule I to the Underwriting
Agreement
Confirmed as of the date first above written.
STERNE, AGEE & LEACH, INC.
AS REPRESENTATIVE
By
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