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EXHIBIT 1.1
CHAPMAN AND CUTLER
DRAFT OF JANUARY 9, 2001
$20,000,000 PREFERRED SECURITIES*
SPECTRUM CAPITAL TRUST II
_____% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION PREFERENCE OF $10 PER TRUST PREFERRED SECURITY)
UNDERWRITING AGREEMENT
February __, 2001
Howe Barnes Investments, Inc.
As Representative of the several Underwriters
named in Schedule A
135 South LaSalle Street
Chicago, Illinois 60603
Ladies and Gentlemen:
Spectrum Bancorporation, Inc., an Iowa corporation (the "COMPANY"), and its
subsidiary, Spectrum Capital Trust II, a statutory business trust organized
under the Delaware Business Trust Act (the "DELAWARE ACT") (the "TRUST" and,
together with the Company, the "OFFERORS"), propose, subject to the terms and
conditions stated herein, to issue and sell to you (the "UNDERWRITERS"), an
aggregate of $20,000,000, representing 2,000,000 securities of the Trust's
_____% Cumulative Trust Preferred Securities, with a liquidation preference of
$10.00 per preferred security (the "FIRM PREFERRED SECURITIES"). In addition,
the Offerors propose to grant to the Underwriters an option to purchase up to
$3,000,000, representing 300,000 securities, of the Trust's ____% Cumulative
Trust Preferred Securities, with a liquidation preference of $10.00 per
preferred security (the "OPTION PREFERRED SECURITIES") as provided in Section 2
hereof. The Firm Preferred Securities and the Option Preferred Securities are
hereinafter collectively referred to as the "PREFERRED SECURITIES." The Offerors
propose that the Trust issue the Preferred Securities pursuant to a Trust
Agreement, as amended and restated, among Wilmington Trust Company, as Property
Trustee and Delaware Trustee, the administrative trustees named therein (the
"ADMINISTRATIVE TRUSTEES") and the Company (the "TRUST AGREEMENT"). The
Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"GUARANTEE") pursuant to a Guarantee Agreement (the "GUARANTEE AGREEMENT"), to
be dated February __, 2001, between the Company and Wilmington
--------------------------
* The Offerors have granted to the Underwriters an option to purchase up to
$3,000,000, representing 300,000 Trust Preferred Securities.
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Trust Company, as trustee (the "GUARANTEE TRUSTEE"), and entitled to the
benefits of certain backup undertakings described in the Prospectus (as defined
herein) with respect to the Company's agreement pursuant to the Expense
Agreement (as defined herein) to pay all expenses relating to administration of
the Trust.
The proceeds of the sale of the Preferred Securities will be used to
purchase junior subordinated deferrable interest debentures (the "JUNIOR
SUBORDINATED DEBENTURES") issued by the Company pursuant to an Indenture, to be
dated February __, 2001, between the Company and Wilmington Trust Company, as
trustee (the "INDENTURE").
The Offerors have filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (File No. 333-_____) and a
related preliminary prospectus for the registration of the Preferred Securities,
the Guarantee and the Junior Subordinated Debentures, under the Securities Act
of 1933, as amended (the "ACT") and the Trust Indenture Act of 1939, as amended
(the "TRUST INDENTURE ACT") and the rules and regulations thereunder. The
registration statement, as amended, at the time it was declared effective,
including the information (if any) deemed to be part thereof pursuant to Rule
430A under the Act, is herein referred to as the "REGISTRATION STATEMENT." The
form of prospectus first filed by the Offerors with the Commission pursuant to
Rules 424(b) and 430A under the Act is referred to herein as the "PROSPECTUS."
Each preliminary prospectus included in the Registration Statement prior to the
time it becomes effective or filed with the Commission pursuant to Rule 424(a)
under the Act is referred to herein as a "PRELIMINARY PROSPECTUS." The
Securities Exchange Act of 1934, as amended, is referred to herein as the
"EXCHANGE ACT." Copies of the Registration Statement, including all exhibits and
schedules thereto, any amendments thereto and all Preliminary Prospectuses have
been delivered to you.
The Offerors hereby confirm their agreement with respect to the purchase of
the Preferred Securities by the Underwriters as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE OFFERORS. (a) The Offerors jointly
and severally represent and warrant to, and agree with, each of the Underwriters
that:
(i) The Registration Statement has been declared effective under the
Act, and no post-effective amendment to the Registration Statement has been
filed with the Commission as of the date of this Agreement. No stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been instituted or threatened by the
Commission.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder, and did not
contain an
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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; PROVIDED, HOWEVER, that the Offerors make no representation or
warranty as to information contained in or omitted in reliance upon, and in
conformity with, written information furnished to the Offerors by or on
behalf of any Underwriter, expressly for use in the preparation thereof.
(iii) The Registration Statement conforms, and the Prospectus and
any amendments or supplements thereto will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder. Neither the Registration Statement nor
any amendment thereto, and neither the Prospectus nor any supplement
thereto, contains or will contain, as the case may be, any untrue statement
of a material fact or omits or will 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 the Offerors make no representation or warranty as
to (i) information contained in or omitted from the Registration Statement
or the Prospectus, or any such amendment or supplement, in reliance upon,
and in conformity with, written information furnished to the Offerors by or
on behalf of any Underwriter, expressly for use in the preparation thereof
or (ii) information in those parts of the Registration Statement which
constitute the Statement of Eligibility and Qualification ("FORM T-1")
under the Trust Indenture Act.
(iv) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with full trust power
and authority to own property and to conduct its business as described in
the Registration Statement and Prospectus and is authorized to do business
in each jurisdiction in which such qualification is required, except where
the failure to so qualify would not have a material adverse effect on the
Trust's condition (financial or otherwise), earnings, business, prospects,
assets, results of operations or properties taken as a whole; the Trust has
conducted and will conduct no business other than the transactions
contemplated by the Trust Agreement and described in the Prospectus; the
Trust is not a party to or otherwise bound by any agreement other than
those described in the Prospectus; the Trust is and will be classified for
United States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust is and will be treated
as a consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
(v) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Iowa and is
duly registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended (the "BHC ACT"), supervised by the Board of
Governors of the Federal Reserve System (the "FED"). Except as set forth in
Schedule B attached
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hereto, the Company does not directly or indirectly own any stock or other
equity interest in any corporation, partnership, joint venture,
unincorporated association or other entity other than F&M Bank, Watertown,
South Dakota ("F&M"), Rushmore Bank & Trust, Rapid City, South Dakota
("RUSHMORE"), Citizens Bank, Mt. Ayr, Iowa ("CITIZENS"), Citizens Bank,
Carlisle, Iowa ("CARLISLE") and Citizens Bank of Princeton, Princeton,
Missouri ("PRINCETON," and collectively, the "BANKS"), Spectrum Banc
Service Corp. and Ameriloan LLC, which is dormant and has no material
assets or liabilities. The Banks and any other entities owned by the
Company being collectively referred to herein as the "SUBSIDIARIES." Each
Subsidiary has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own or lease its properties and
conduct its business as described in the Prospectus, and is duly qualified
to transact business in all jurisdictions in which the conduct of its
business or its ownership or leasing or property requires such
qualification and the failure so to qualify would have a material adverse
effect on the business or condition, financial or otherwise, of the Company
and the Subsidiaries, taken as a whole. All outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, and are owned, directly or
indirectly, by the Company free and clear of all liens, encumbrances and
security interests, except as set forth in the Prospectus. No options,
warrants or other rights to purchase, agreements or other obligations to
issue, or other rights to convert any obligations into, shares of capital
stock or ownership interests in any of the Subsidiaries are outstanding.
(vi) (A) The Company has entered into an Agreement and Plan of
Merger dated as of December 16, 2000 (the "MERGER AGREEMENT") with Great
Western Securities, Inc. ("GREAT WESTERN") providing for the merger of
Great Western into the Company (the "MERGER"). Following the merger, Great
Western Bank will become a wholly-owned subsidiary of the Company; (B)
Great Western is 50% owned by Deryl F. Hamann, as trustee for trusts for
his children; (C) Great Western is a one-bank holding company for Great
Western Bank, Omaha, Nebraska ("GREAT WESTERN BANK") and is duly
incorporated, is validly existing as a corporation in good standing under
the laws of the State of Nebraska and is duly qualified to transact
business in all jurisdictions in which the conduct of its business or its
ownership or leasing of property requires such qualification and the
failure so to qualify would have a material adverse effect on the business
or condition, financial or otherwise of Great Western or Great Western
Bank; and (D) the Merger Agreement has been duly authorized, executed and
delivered by the Company.
(vii) All of the issued and outstanding shares of capital stock of
the Company are duly authorized, validly issued, fully paid and
nonassessable, were offered and sold in compliance with all federal and
state securities laws, and were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase
securities. Except as otherwise stated in the
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Registration Statement and Prospectus, there are no preemptive rights or
other rights to subscribe for or to purchase, or any restriction upon the
voting or transfer of, the Junior Subordinated Debentures, the common
securities of the Trust held by the Company (the "COMMON SECURITIES") or
the Preferred Securities. Neither the filing of the Registration Statement
nor the registration of the Preferred Securities, the Guarantee or the
Junior Subordinated Debentures gives rise to any rights for or relating to
the registration of any capital stock or other securities of the Company or
the Trust. The Company has an authorized and outstanding capitalization as
set forth in the Registration Statement and the Prospectus.
(viii) Each of this Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement and the Agreement as to Expenses and Liabilities
(the "EXPENSE AGREEMENT") has been duly authorized, executed and delivered
by the Company and/or the Trust, as the case may be, and constitutes a
valid, legal and binding obligation of the Company and/or the Trust, as the
case may be, enforceable in accordance with its terms, except as rights to
indemnity hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity and, with respect to Section 7
hereof, by the public policy underlying the federal or state securities
laws. The execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement and the consummation of the transactions herein or therein
contemplated will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any
indenture, mortgage, deed of trust, loan agreement, lease, franchise,
license or other agreement or instrument to which the Trust, the Company or
any of the Subsidiaries is a party or by which the Trust, the Company or
any of the Subsidiaries is bound or to which any property or assets of the
Trust, the Company or any of the Subsidiaries is subject, the Company's or
any Subsidiary's charter or bylaws, the Trust Agreement or the Trust's
certificate of trust filed with the State of Delaware on January __, 2001
(the "CERTIFICATE OF TRUST") or any order, rule, regulation or decree of
any court or governmental agency or body having jurisdiction over the
Company, any Subsidiary or the Trust or having jurisdiction over any of the
properties of the Company, any Subsidiary or the Trust. No consent,
approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement or for the consummation of
the transactions contemplated hereby or thereby, including the issuance or
sale of the Junior Subordinated Debentures by the Company and the Common
Securities and the Preferred Securities by the Trust, except such as may be
required under the Act, all of which have been obtained or made, and under
state securities or blue sky laws. Each of the Company and the Trust, as
the case may be, has full power and authority to enter into this Agreement,
the
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Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement, as the case may be, and to authorize, issue and sell the Junior
Subordinated Debentures or the Common Securities and the Preferred
Securities, as the case may be, as contemplated by this Agreement; and each
of the Indenture, the Trust Agreement and the Guarantee Agreement has been
duly qualified under the Trust Indenture Act and will conform in all
material respects to the statements relating thereto in the Registration
Statement and the Prospectus.
(ix) The Junior Subordinated Debentures have been duly authorized by
the Company and at the Closing Date will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture
and delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity, will be in the form
contemplated by, and entitled to the benefits of, the Indenture, will
conform to the statements relating thereto in the Prospectus, and will be
owned by the Trust free and clear of any security interest, pledge, lien,
encumbrance, claim or equity.
(x) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Prospectus, will be validly
issued and (subject to the terms of the Trust Agreement) fully paid and
nonassessable undivided beneficial interests in the assets of the Trust and
will conform to all statements relating thereto contained in the
Prospectus; and at the Closing Date all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company free
and clear of any security interest, pledge, lien, encumbrance, claim or
equity.
(xi) The Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
fully paid and non-assessable undivided beneficial interests in the Trust,
will be entitled to the benefits of the Trust Agreement and will conform to
the statements relating thereto contained in the Prospectus; and holders of
Preferred Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of private
corporations for profit.
(xii) The Indenture, the Trust Agreement, the Guarantee Agreement,
the Expense Agreement and the Merger Agreement are in substantially the
respective forms filed as exhibits to the Registration Statement.
(xiii) The Company's obligations under the Guarantee Agreement are
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subordinated and junior in right of payment to all Senior and Subordinated
Debt (as defined in the Indenture) of the Company.
(xiv) The Junior Subordinated Debentures are subordinate and junior
in right of payment to all Senior and Subordinated Debt of the Company.
(xv) Each of the Administrative Trustees of the Trust is an officer
of the Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(xvi) The financial statements, together with the related notes and
schedules, contained in the Registration Statement and Prospectus present
fairly the consolidated financial position, results of operations,
shareholders' equity and cash flows of the Company and its consolidated
Subsidiaries and of Great Western Securities, Inc. and its consolidated
subsidiary, on the basis stated therein at the indicated dates and for the
indicated periods. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, and all adjustments necessary for
a fair presentation of results for such periods have been made, except as
otherwise stated therein. The selected financial and statistical data
included in the Registration Statement present fairly the information shown
therein on the basis stated in the Registration Statement and have been
compiled on a basis consistent with the financial statements presented
therein.
(xvii) There is no action or proceeding pending or, to the knowledge
of the Trust or the Company, threatened or contemplated against any of the
Trust, the Company, any Subsidiary or Great Western before any court or
administrative or regulatory agency which, if determined adversely to the
Trust, the Company, such Subsidiary or Great Western would, individually or
in the aggregate, result in a material adverse change in the business or
condition (financial or otherwise), results of operations, shareholders'
equity or prospects of the Trust, the Company or such Subsidiary, taken as
a whole, or of Great Western except as set forth in the Registration
Statement.
(xviii) There are no contracts or documents of the Trust, the
Company or any Subsidiary that are required by the Act or by the rules and
regulations thereunder to be filed as exhibits to the Registration
Statement which contracts or documents have not been so filed.
(xix) The Company, the Subsidiaries and Great Western have good and
marketable title to all properties and assets reflected as owned in the
financial statements hereinabove described (or as described as owned in the
Prospectus), in each case free and clear of all liens, encumbrances and
defects, except such as are described in the Prospectus or do not
substantially affect the value of such properties and assets and do not
materially interfere with the use
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made and proposed to be made of such properties and assets by the Company,
the Subsidiaries and Great Western; and any real property and buildings
held under lease by the Company, the Subsidiaries and Great Western are
held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company, the
Subsidiaries and Great Western.
(xx) Since the respective dates as of which information is given in
the Registration Statement, as it may be amended or supplemented, (A) there
has not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition,
financial or otherwise, of the Trust, the Company and the Subsidiaries
taken as a whole, or of Great Western or the business affairs, management,
financial position, shareholders' equity or results of operations of the
Trust, the Company and the Subsidiaries, taken as a whole, or of Great
Western whether or not occurring in the ordinary course of business,
including, without limitation, any material increase in the amount or
number of classified assets of the Banks or Great Western Bank, any
decrease in net interest margin for any month for the Company to a level
below 4.0%, or any material decrease in the volume of loan originations,
the amount of deposits or the amount of loans, (B) there has not been any
transaction not in the ordinary course of business entered into by the
Trust, the Company or any of the Subsidiaries which is material to the
Trust, the Company and the Subsidiaries, taken as a whole, other than
transactions described or contemplated in the Registration Statement, (C)
the Trust, the Company, the Subsidiaries and Great Western have not
incurred any material liabilities or obligations, which are not in the
ordinary course of business or which could result in a material reduction
in the future earnings of the Trust, the Company and the Subsidiaries, (D)
the Trust, the Company, the Subsidiaries and Great Western have not
sustained any material loss or interference with their respective
businesses or properties from fire, flood, windstorm, accident or other
calamity, whether or not covered by insurance, (E) since December 31, 2000,
there has not been any change in the capital stock of the Company or the
Subsidiaries (other than upon the exercise of options and warrants
described in the Registration Statement), or any material increase in the
short-term or long-term debt (including capitalized lease obligations) of
the Company and the Subsidiaries, taken as a whole, and (F) since June 30,
2000, there has not been any declaration or payment of any dividends or any
distributions of any kind with respect to the capital stock of the Company,
the Subsidiaries or Great Western other than any dividends or distributions
described or contemplated in the Registration Statement.
(xxi) Neither the Company nor any of the Subsidiaries is in
violation of its respective charter or Bylaws; the Trust is not in
violation of the Trust Agreement or its Certificate of Trust; and none of
the Trust, the Company, the Subsidiaries or Great Western is in violation
of or otherwise in default under any
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statute, or any rule, regulation, order, judgment, decree or authorization
of any court or governmental or administrative agency or body having
jurisdiction over the Trust, the Company, any of the Subsidiaries or Great
Western or any of their properties, or any indenture, mortgage, deed of
trust, loan agreement, lease, franchise, license or other agreement or
instrument to which the Trust, the Company, any of the Subsidiaries or
Great Western Bank is a party or by which any of them are bound or to which
any property or assets of the Trust, the Company, any of the Subsidiaries
or Great Western Bank is subject, which violation or default would have a
material adverse effect on the business, condition (financial or
otherwise), results of operations, shareholders' equity or prospects of the
Trust, the Company and the Subsidiaries, taken as a whole or of Great
Western.
(xxii) The Administrative Trustees on behalf of the Trust, the
Company and each of the Subsidiaries holds and is operating in compliance
with all licenses, approvals, certificates and permits from governmental
and regulatory authorities, foreign and domestic, which are necessary to
the conduct of its business as described in the Prospectus. Without
limiting the generality of the foregoing, the Company has all necessary
approvals of the Fed to own the stock of the Subsidiaries. None of the
Trust, the Company or any Subsidiary has received notice of or has
knowledge of any basis for any proceeding or action relating specifically
to the Trust, the Company or the Subsidiaries for the revocation or
suspension of any such consent, authorization, approval, order, license,
certificate or permit or any other action or proposed action by any
regulatory authority having jurisdiction over the Trust, the Company or the
Subsidiaries that would have a material adverse effect on the Trust, the
Company or any Subsidiary.
(xxiii) To the best of the Offerors' knowledge, McGladrey & Pullen,
LLP and Deloitte & Touche LLP which have each certified certain of the
financial statements filed with the Commission as part of the Registration
Statement, are each independent public accountants as required by the Act
and the rules and regulations thereunder.
(xxiv) The Offerors have not taken and will not take, directly or
indirectly, any action designed to, or which has constituted, or which
might reasonably be expected to cause or result in, stabilization or
manipulation of the price of the Preferred Securities.
(xxv) The Offerors' registration statement pursuant to Section 12(g)
of the Exchange Act with respect to the Preferred Securities, has been
declared effective by the Commission; the Preferred Securities have been
approved for quotation and trading, upon notice of issuance, on the
American Stock Exchange under the symbol "SBK.Pr.B."
(xxvi) The Offerors have not distributed and will not distribute any
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prospectus or other offering material in connection with the offering and
sale of the Preferred Securities other than any Preliminary Prospectus or
the Prospectus or other materials permitted by the Act to be distributed by
the Company.
(xxvii) The deposit accounts of the Banks and Great Western Bank are
insured by the Federal Deposit Insurance Corporation (the "FDIC") to the
fullest extent provided by law. No proceeding for the termination of such
insurance is pending or is threatened. Neither the Company, any Subsidiary
nor Great Western Bank has received or is subject to any directive or order
from the Fed, the FDIC, the South Dakota Department of Banking and Finance,
the Missouri Division of Finance, the Nebraska Department of Banking and
Finance, the Iowa Division of Banking, or any other regulatory authority to
make any material change in the method of conducting their respective
businesses that has not been complied with in all material respects.
(xxviii) Neither the Offerors nor any of their affiliates does any
business, directly or indirectly, with the government of Cuba or with any
person or entity located in Cuba.
(xxix) The Trust, the Company, the Subsidiaries and Great Western,
to the best of their knowledge, have filed all federal, state, local and
foreign tax returns or reports required to be filed, and have paid in full
all taxes indicated by said returns or reports and all assessments received
by it or any of them to the extent that such taxes have become due and
payable, except where the Trust, the Company, the Subsidiaries and Great
Western are contesting in good faith such taxes and assessments. The
Company and the Subsidiaries have also filed all required applications,
reports, returns and other documents and information with all state and
federal banking authorities and agencies.
(xxx) The Trust, the Company and each of the Subsidiaries, to the
best of their knowledge, owns or licenses all patents, patent applications,
trademarks, service marks, tradenames, trademark registrations, service
mark registrations, copyrights, licenses, inventions, trade secrets and
other similar rights necessary for the conduct of their businesses as
described in the Prospectus. Neither the Trust, the Company nor any of the
Subsidiaries has any knowledge of any infringement by them of any patents,
patent applications, trademarks, service marks, tradenames, trademark
registrations, service mark registrations, copyrights, licenses,
inventions, trade secrets or other similar rights of others, and none of
the Trust, the Company or any of the Subsidiaries has received any notice
or claim of conflict with the asserted rights of others with respect to any
of the foregoing.
(xxxi) None of the Trust, the Company, any of the Subsidiaries,
Great Western or Great Western Bank is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or an "investment adviser"
within the
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meaning of the Investment Advisers Act of 1940, as amended.
(xxxii) The Company and its Subsidiaries maintain, and the Trust
will maintain, a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain accountability for assets; (C) access to records is permitted
only in accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
(xxxiii) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred any
liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(xxxiv) No report or application filed by the Company, any of its
Subsidiaries, Great Western or Great Western Bank with the Fed, the FDIC,
the South Dakota Division of Banking and Finance, the Missouri Division of
Finance, the Nebraska Department of Banking and Finance or the Iowa
Division of Banking, as of the date it was filed, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading when made or failed to comply with the applicable requirements
of the Fed, the FDIC, the South Dakota Division of Banking and Finance, the
Missouri Division of Finance, the Nebraska Department of Banking and
Finance or the Iowa Division of Banking, as the case may be.
(xxxv) The Merger has been approved by all regulatory agencies and
any contingencies or conditions related to the Merger or contained in the
Merger Agreement or the appropriate regulatory approvals have been
disclosed in the Registration Statement.
(xxxvi) The proceeds from the sale of the Preferred Securities will
constitute "Tier 1" capital (as defined in 12 C.F.R. Part 325), subject to
applicable regulatory restrictions on the amount thereof that can be
included in Tier 1 capital.
(b) Any certificate signed by or on behalf of the Trust or the Company and
delivered to the Underwriters or counsel to the Underwriters shall be deemed to
be a representation and warranty of the Trust or the Company to each Underwriter
as to the matters covered thereby.
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2. PURCHASE, SALE AND DELIVERY OF PREFERRED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Trust agrees to issue and sell to
each Underwriter, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Trust, at a purchase price per Preferred Security
of $10.00, the number of Firm Preferred Securities set forth opposite the name
of such Underwriter in Schedule A hereto. As compensation to the Underwriters
for their commitments hereunder and in view of the fact that the proceeds of the
sale of the Preferred Securities (together with the entire proceeds from the
sale by the Trust to the Company of the Common Securities) will be used to
purchase the Junior Subordinated Debentures, the Company hereby agrees to pay at
the Closing Date to the Representative a commission of $0.35 per Preferred
Security sold by the Trust hereunder.
The Firm Preferred Securities will be delivered by the Company to the
Representative against payment of the purchase price therefor at the offices of
Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, Nebraska, or such
other location as may be mutually acceptable, at 9:00 a.m. Central time on
February __, 2001, or such other time and date as the Representative and the
Company may agree upon in writing, such time and date of delivery being herein
referred to as the "FIRST CLOSING DATE." The purchase price shall be payable by
wire transfer of immediately available funds to an account, such account to be
designated by the Trust at least two business days preceding the First Closing
Date. The Underwriters' commission shall be payable by wire transfer of
immediately available funds to an account, such account to be designated by the
Underwriters at least two business days preceding the First Closing Date.
Delivery of the Firm Preferred Securities may be made by credit through full
fast transfer to the accounts at The Depository Trust Company designated by you.
Certificates representing the Firm Preferred Securities, in definitive form and
in such denominations and registered in such names as you may request upon at
least two business days' prior notice to the Company shall be prepared and will
be made available for checking and packaging, not later than 10:30 a.m., Central
time, on the business day next preceding the First Closing Date at the offices
of Howe Barnes Investments, Inc., 135 South LaSalle Street, Chicago, Illinois
60603, or such other location as may be mutually acceptable.
In addition, on the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to an aggregate of 300,000 Option Preferred
Securities, at the same purchase price per share to be paid for the Firm
Preferred Securities, for use solely in covering any overallotments made by the
Underwriters in the sale and distribution of the Firm Preferred Securities. The
option granted hereunder may be exercised at any time (but not more than once)
within 30 days after the date of the initial public offering upon notice by you
to the Company setting forth the aggregate number of Option Preferred Securities
as to which the Underwriters are exercising the option, the names and
denominations in which the certificates for such shares are to be registered and
the
<PAGE>
time and place at which such certificates will be delivered. Such time of
delivery (which may not be earlier than the First Closing Date), being herein
referred to as the "SECOND CLOSING DATE," shall be determined by you, but if at
any time other than the First Closing Date, shall not be earlier than three nor
later than 10 full business days after delivery of such notice of exercise. The
number of Option Preferred Securities to be purchased by each Underwriter shall
be determined by multiplying the number of Option Preferred Securities to be
sold by the Company pursuant to such notice of exercise by a fraction, the
numerator of which is the number of Firm Preferred Securities to be purchased by
such Underwriter as set forth opposite its name in Schedule A and the
denominator of which is the total number of Firm Preferred Securities (subject
to such adjustments to eliminate any fractional share purchases as you in your
absolute discretion may make). Certificates for the Option Preferred Securities
will be made available at the Company's expense for checking and packaging at
10:30 a.m., Chicago Time, on the business day preceding the Second Closing Date.
The manner of payment for and delivery of the Option Preferred Securities shall
be the same as for the Firm Preferred Securities as specified in the preceding
paragraph.
It is understood that any Underwriter may (but shall not be obligated to)
make payment to the Company on behalf of the other Underwriter for the Preferred
Securities to be purchased by such Underwriter. Any such payment shall not
relieve such other Underwriter of any of its obligations hereunder. Nothing
herein contained shall constitute the Underwriters an unincorporated association
or partner with either or both Offerors.
3. OFFERING BY UNDERWRITERS. It is understood that the several Underwriters
propose to make a public offering of the Preferred Securities as soon as the
Underwriters deem it advisable to do so. The Preferred Securities are to be
initially offered to the public at the initial public offering price set forth
in the Prospectus. The Underwriters may from time to time thereafter change the
public offering price and other selling terms.
4. COVENANTS OF THE OFFERORS. The Offerors jointly and severally covenant
and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the
Trust will prepare and timely file with the Commission under Rule 424(b)
under the Act a Prospectus containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule
430A under the Act, and will not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Underwriters shall
not previously have been advised and furnished with a copy and as to which
the Underwriters shall have reasonably objected in writing promptly after
reasonable notice thereof or which is not in compliance with the Act or the
rules and regulations thereunder.
(b) The Offerors will advise the Underwriters promptly of
<PAGE>
any request of the Commission for amendment of the Registration Statement
or for supplement to the Prospectus or for any additional information, or
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the Prospectus,
of the suspension of the qualification of the Preferred Securities for
offering or sale in any jurisdiction, or of the institution or threatening
of any proceedings for that purpose, and the Offerors will use their best
efforts to prevent the issuance of any such stop order preventing or
suspending the use of the Prospectus or suspending such qualification and
to obtain as soon as possible the lifting thereof, if issued.
(c) The Offerors will cooperate with you and your counsel in order
to qualify the Preferred Securities for sale under the securities laws of
such jurisdictions as the Underwriters may reasonably have designated in
writing and to continue such qualifications in effect for so long as the
Underwriters may reasonably request for distribution of the Preferred
Securities (or obtain exemptions from the application of such laws),
PROVIDED that neither Offeror shall be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a
consent. The Offerors will, from time to time, prepare and file such
statements, reports and other documents as may be requested by the
Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies
of any Preliminary Prospectus as the Underwriters may reasonably request
and, during the period when delivery of a prospectus is required under the
Act, the Offerors will furnish the Underwriters with as many copies of the
Prospectus in final form, or as thereafter amended or supplemented, as the
Underwriters may, from time to time, reasonably request. The Offerors will
deliver to the Underwriters, at or before the Closing Date, two signed
copies of the Registration Statement and all amendments thereto including
all exhibits filed therewith, and will deliver to the Underwriters such
number of conformed copies of the Registration Statement, without exhibits,
and of all amendments thereto, as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law
to be delivered by an Underwriter or dealer, any event shall occur as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light
of the circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or if for any other reason it shall be necessary
at any time to amend or supplement the Prospectus to comply with any law,
the Offerors promptly will prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus so that the Prospectus as so amended or supplemented will not
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein in light
<PAGE>
of the circumstances when it is so delivered, not misleading, or so that
the Prospectus will comply with law.
(f) The Offerors will make generally available to their security
holders, as soon as it is practicable to do so, but in any event not later
than 18 months after the effective date of the Registration Statement, an
earnings statement (which need not be audited) in reasonable detail,
covering a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement, which earnings statement
shall satisfy the requirements of Section 11(a) of the Act and Rule 158
thereunder and will advise you in writing when such statement has been so
made available.
(g) The Company will, for five years from the First Closing Date,
deliver to each Underwriter, as soon as they are available, copies of its
annual report and copies of all other documents, reports and information
furnished by the Company to its security holders or filed with any
securities exchange pursuant to the requirements of such exchange or with
the Commission pursuant to the Act or the Exchange Act. The Company will
deliver to each Underwriter similar reports with respect to significant
subsidiaries, as that term is defined in the rules and regulations under
the Act, which are not consolidated in the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the
Junior Subordinated Debentures and the Preferred Securities substantially
in accordance with the purposes set forth under "Use of Proceeds" in the
Prospectus.
(i) The Offerors will comply with all registration, filing and
reporting requirements of the Exchange Act and the American Stock Exchange.
5. COSTS AND EXPENSES. (a) The Offerors will pay (directly or by
reimbursement) all costs, expenses and fees incident to the performance of the
obligations of the Offerors under this Agreement, including, without limiting
the generality of the foregoing, the following: accounting fees of the Offerors;
the fees and disbursements of counsel for the Offerors; the cost of preparing,
printing and filing of the Registration Statement, Preliminary Prospectuses and
the Prospectus and any amendments and supplements thereto and the printing,
mailing and delivery to the Underwriters and dealers of copies thereof and of
this Agreement, the Selected Dealers Agreement, any Blue Sky Memorandum, if
deemed necessary by the Underwriters, after consultation with the Offerors, and
any supplements or amendments thereto (excluding, except as provided below, fees
and expenses of counsel to the Underwriters); the filing fees of the Commission;
the filing fees and expenses (including legal fees and disbursements of counsel
for the Underwriters) incident to securing any required review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Preferred Securities; the fees and expenses of the Indenture Trustee,
including the fees and disbursements of counsel for the Indenture
<PAGE>
Trustee in connection with the Indenture and Junior Subordinated Debentures; the
fees and expenses of the Property Trustee and the Delaware Trustee, including
the fees and disbursements of counsel for the Property Trustee and the Delaware
Trustee in connection with the Trust Agreement and the Certificate of Trust; the
fees and expenses of the Guarantee Trustee, including the fees and disbursements
of counsel for the Guarantee Trustee in connection with the Guarantee and
Guarantee Agreement; listing fees, if any, transfer taxes and the expenses,
including the fees and disbursements of counsel for the Underwriters, incurred
in connection with the qualification of the Preferred Securities under state
securities or Blue Sky laws; the fees and expenses incurred in connection with
the designation of the Preferred Securities on the American Stock Exchange; the
costs of preparing certificates representing Junior Subordinated Debentures or
Preferred Securities; the costs and fees of any registrar or transfer agent and
all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section 5.
In addition, the Offerors will pay all travel and lodging expenses incurred by
management of the Offerors in connection with any informational "road show"
meetings held in connection with the offering and will also pay for the
preparation of all materials used in connection with such meetings. The Offerors
shall not be required to pay for any of the Underwriters' expenses (other than
those related to qualification of the Preferred Securities under state
securities or Blue Sky laws and those incident to securing any required review
by the NASD of the terms of the sale of the Preferred Securities which shall be
paid by the Offerors as provided above) except that, if this Agreement shall not
be consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Underwriters pursuant to Sections
9(a) or 9(b) hereof, or by reason of any failure, refusal or inability on the
part of the Offerors to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on either of their parts to
be performed, unless such failure to satisfy said condition or to comply with
said terms shall be due to the default or omission of any Underwriter, then the
Offerors promptly upon request by the Underwriters shall reimburse the several
Underwriters for all actual, accountable out-of-pocket expenses, including fees
and disbursements of counsel reasonably incurred in connection with
investigating, marketing and proposing to market the Preferred Securities or in
contemplation of performing their obligations hereunder, up to $25,000; but the
Offerors shall not in any event be liable to any of the several Underwriters for
damages on account of loss of anticipated profits from the sale by them of the
Preferred Securities.
(b) Upon successful completion of the offering contemplated by this
Agreement, the Offerors will pay all reasonable and customary costs, expenses
and fees incident to tombstone advertisements of the offering and incurred with
the approval of the Company.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several obligations
of the Underwriters to purchase the Firm Preferred Securities on the First
Closing Date and the Option Preferred Securities on the Second Closing Date are
subject to the condition that all representations and warranties of the Offerors
contained herein are
<PAGE>
true and correct, at and as of the First Closing Date or the Second Closing
Date, as the case may be, and the condition that each Offeror shall have
performed all of its covenants and obligations hereunder and to the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof; no stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, or any part thereof
shall have been issued and no proceedings for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
the reasonable satisfaction of the Underwriters.
(b) The Underwriters shall have received on the First Closing Date
or the Second Closing Date, as the case may be, the opinion of Baird, Holm,
McEachen, Pedersen, Hamann & Strasheim, counsel for the Offerors, dated the
Closing Date, addressed to the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and
authority to own or lease its properties and conduct its business as
described in the Prospectus. All of the issued and outstanding
shares of the capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. The holders
of the Company's outstanding securities are not entitled to any
preemptive or other rights to subscribe for the Junior Subordinated
Debentures or the Preferred Securities under the Company's Articles
of Incorporation or Bylaws and, to the knowledge of such counsel, no
such rights exist under any other agreement or arrangement. The
Company has authorized and outstanding capital stock as described in
the Prospectus.
(ii) Each Subsidiary of the Company and Great Western Bank has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own or lease
its properties and conduct its business as described in the
Prospectus. The outstanding capital stock of each such Subsidiary
has been duly authorized and validly issued, is fully paid and
nonassessable, and following the Merger the outstanding capital
stock of Great Western Bank will be, owned, directly or indirectly,
by the Company, free and clear of all liens, encumbrances and
security interests, other than security interests specifically
disclosed in the Prospectus. To the knowledge of such counsel, no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into
capital stock or ownership interests in
<PAGE>
any Subsidiary are outstanding.
(iii) All of the issued and outstanding Common Securities of the
Trust are owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form
T-1 Statement of Eligibility of Wilmington Trust Company to act as
trustee under the Indenture, the Form T-1 Statement of Eligibility
of Wilmington Trust Company to act as trustee under the Trust
Agreement, and the Form T-1 Statement of Eligibility of Wilmington
Trust Company to act as trustee under the Guarantee Agreement have
been duly qualified under the Trust Indenture Act.
(v) The Junior Subordinated Debentures are in the form
contemplated by the Indenture, have been duly authorized, executed
and delivered by the Company and, when authenticated by the
Indenture Trustee in the manner provided for in the Indenture and
delivered against payment therefor, will constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all "Senior and Subordinated Debt" (as
defined in the Indenture) of the Company.
(vii) Under current law, the Trust will be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; accordingly, for United States
federal income tax purposes each beneficial owner of Preferred
Securities will be treated as owning an undivided beneficial
interest in the Junior Subordinated Debentures, and stated interest
on the Junior Subordinated Debentures generally will be included in
income by a holder of Preferred Securities at the time such interest
income is paid or accrued in accordance with such holder's regular
method of tax accounting.
(viii) For federal income tax purposes, (a) the Junior
Subordinated Debentures will constitute indebtedness of the Company
and (b) the interest on the Junior Subordinated Debentures will be
deductible by the Company on an economic accrual basis in accordance
with Section 163(e) of the Internal Revenue Code of 1986, as
amended, and Treasury Regulation Section 1.163-7.
(ix) To the best of such counsel's knowledge and information
<PAGE>
after due inquiry, the Trust is not required to be authorized to do
business in any other jurisdiction, except where the failure to be
so authorized would not have a material adverse effect on the
Trust's condition (financial or otherwise), earnings, business,
prospects, assets, results of operations or properties taken as a
whole and the Trust is not a party to or otherwise bound by any
material agreement other than those described in the Prospectus.
(x) The Trust Agreement has been duly executed and delivered by
the Administrative Trustees.
(xi) To the best of such counsel's knowledge and information
after due inquiry, the Offerors are not in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or any other instrument of
which either of them is a party or by which either of them may be
bound, or to which any of the property or assets of the Offerors is
subject.
(xii) The Company has full corporate power and authority and the
Trust has full trust power and authority to enter into this
Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement, the Merger Agreement and the Expense Agreement, as
applicable, and to issue the Junior Subordinated Debentures or the
Common Securities and Preferred Securities, as the case may be, and
to effect the transactions contemplated by this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement, the Merger
Agreement and the Expense Agreement, as applicable, and each of this
Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement, the Merger Agreement and the Expense Agreement have been
duly authorized, executed and delivered by the Company and the
Trust, as applicable, and constitutes a valid, legal and binding
obligation of the Company and the Trust, as applicable, enforceable
in accordance with its terms (except as rights to indemnity
hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity).
The execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement, the
Preferred Securities, the Common Securities, the Junior Subordinated
Debentures, the Merger Agreement and the Expense Agreement and the
consummation of the transactions herein or therein contemplated will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, rule or
regulation (except that such counsel need express no opinion
regarding any Blue Sky or state securities laws), any lease,
contract, indenture, mortgage, loan agreement or other agreement or
instrument known to
<PAGE>
such counsel to which the Company, the Trust or any Subsidiary is a
party or by which it is bound or to which any of its property is
subject, the Company's or any Subsidiary's charter or bylaws, or the
Trust's Certificate or any permit, judgment, order or decree known
to such counsel of any court or governmental agency or body having
jurisdiction over the Company, the Trust or any Subsidiary or any of
their respective properties, except for any breach, violation or
default which would not have a material adverse effect on the
Company or the Trust; and no consent, approval, authorization, order
of, designation, declaration or filing by or with, any court or any
regulatory, administrative or governmental agency or body is
required for the execution, delivery and performance of this
Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement, the Expense Agreement, the Common Securities, the
Preferred Securities, or the Junior Subordinated Debentures, or for
the consummation of the transactions contemplated hereby or thereby
(other than as may be required by federal or state laws governing
banks or bank holding companies, the NASD, or by state securities
and blue sky laws, as to which such counsel need express no
opinion), including the issuance or sale of the Junior Subordinated
Debentures by the Company and the Common Securities and Preferred
Securities by the Trust, except (a) such as may be required under
the Act, which have been obtained or made, or under state securities
or blue sky laws, (b) such agreements, instruments or obligations
with respect to which valid consents or waivers have been obtained
by the Trust, the Company or any of the Subsidiaries, and (c) the
qualification of the Trust Agreement, the Guarantee Agreement and
the Indenture under the Trust Indenture Act and the regulations
thereunder, all of which have been effected. The filing of the
Registration Statement and the registration of the Junior
Subordinated Debentures, the Guarantee and the Preferred Securities
under the Act does not give rise to any rights for or relating to
the registration of any shares of capital stock or other securities
of the Company.
(xiii) The Registration Statement has become effective under the
Act and, to the knowledge of such counsel, no stop order proceedings
with respect thereto have been instituted or are pending or
threatened by the Commission.
(xiv) The Registration Statement, the Prospectus and each
amendment or supplement, thereto comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder (except that such counsel need express no
opinion as to the financial statements and related financial
schedules contained in the financial statements, Registration
Statement, the Prospectus and each amendment or supplement thereto).
(xv) The statements (A) in the Prospectus under the caption
<PAGE>
"Material Federal Income Tax Consequences" and (B) in the
Registration Statement in Item 24, insofar as such statements
constitute a summary of matters of law, are accurate summaries and
fairly present the information called for with respect to such
matters.
(xvi) Such counsel does not know of any contracts, agreements,
documents or instruments required to be filed as exhibits to the
Registration Statement or described in the Registration Statement or
the Prospectus which are not so filed or described as required; and
insofar as any statements in the Registration Statement or the
Prospectus constitute summaries of any contract, agreement, document
or instrument to which the Trust, the Company or any Subsidiary is a
party, such statements are accurate summaries and fairly present the
information called for with respect to such matters.
(xvii) Such counsel knows of no legal or governmental
proceeding, pending or threatened, before any court or
administrative body or regulatory agency, to which the Trust, the
Company or any of the Subsidiaries is a party or to which any of the
properties of the Trust, the Company or any of the Subsidiaries is
subject that are required to be described in the Registration
Statement or Prospectus and are not so described, or statutes or
regulations that are required to be described in the Registration
Statement or the Prospectus that are not so described (other than
any banking laws (as defined below), as to which counsel need
express no opinion).
(xviii) Neither the Company nor the Trust is, and immediately
upon completion of the sale of Preferred Securities contemplated
hereby, neither the Company nor the Trust will be, an "investment
company" or a company "controlled" by an investment company under
the Investment Company Act of 1940, as amended.
(xix) To the best of such counsel's knowledge, neither the
Company nor any of the Subsidiaries is in violation of its
respective charter or bylaws.
Such counsel shall also state that on the basis of such counsel's review
and participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, such counsel has no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Offerors prior to the First
<PAGE>
Closing Date or the Second Closing Date, as the case may be (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Offerors
prior to the First Closing Date or the Second Closing Date, as the case may be,
(other than the financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading or that, as of the First Closing Date or the Second Closing Date, as
the case may be, either the Registration Statement or the Prospectus or any
further amendment or supplement thereto made by the Offerors prior to the First
Closing Date or the Second Closing Date, as the case may be, (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading.
In rendering the above opinions, counsel may rely (i) as to matters of law
other than Iowa, Nebraska and federal law, upon the opinion or opinions of local
counsel PROVIDED that the extent of such reliance is specified in such opinion
and that such counsel shall state that such opinion or opinions of local counsel
are satisfactory to them and they believe they and you are justified in relying
thereon and (ii) as to matters of fact, upon the representations of the Trust
and the Company contained in this Agreement and upon certificates of trustees or
officers of the Trust, the Company and of public officials.
(c) The Underwriters shall have received on the Closing Date the opinion of
Baird, Holm, McEachen, Pedersen, Hamann & Strasheim counsel for the Company,
dated the First Closing Date or the Second Closing Date, as the case may be,
addressed to the Underwriters, to the effect that:
(i) The Banks and Great Western Bank have been duly chartered to
conduct the business of banking in their state of domicile and the Company
has all necessary power and authority to own the Banks. The Company, the
Banks and Great Western Bank have all necessary consents and approvals
under applicable federal and state laws and regulations relating to banks
and bank holding companies ("BANKING LAWS") to own their respective assets
and carry on their respective businesses as currently conducted.
(ii) The [second] and [sixteenth] statements in the Prospectus
under the caption "Risk Factors" and the statements in the Prospectus under
the caption "Supervision and Regulation" insofar as such statements
constitute a summary of banking laws, are accurate summaries and fairly
present the information called for with respect to such matters.
(iii) Such counsel knows of no legal or governmental proceeding,
pending or threatened, before any court or administrative body or
regulatory agency, to which the Company, any of the Subsidiaries, Great
Western or Great Western Bank is a party or to which any of the properties
of the Company, any of the Subsidiaries, Great Western or Great Western
Bank is subject that are
<PAGE>
required to be described in the Registration Statement or Prospectus and
are not so described, or statutes or regulations that are required to be
described in the Registration Statement or the Prospectus that are not so
described.
(iv) The execution and delivery of this Agreement, the Indenture,
the Trust Agreement, the Guarantee Agreement and the Expense Agreement and
the consummation of the transactions herein and therein contemplated do not
and will not conflict with or result in a violation of or default under any
banking laws, or any permit, judgment, decree or order known to such
counsel, or any lease, contract, indenture, mortgage, loan agreement or
other agreement or other instrument or obligation known to such counsel to
which the Company or the Banks are a party or by which the Company or the
Banks or any of their respective properties is bound.
(v) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body under banking laws is necessary in connection with the
execution and delivery of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement, the Merger Agreement and the Expense
Agreement and the consummation of the transactions herein and therein
contemplated, except such as have been obtained or made, specifying the
same.
(vi) The proceeds from the sale of the Preferred Securities will
constitute "Tier 1" capital (as defined in 12 C.F.R. Part 325), subject to
applicable regulatory limitations on the amount thereof that can be
included in Tier 1 capital.
(d) The Underwriters shall have received on the Closing Date the opinion of
Richards, Layton & Finger, P.A. counsel to Wilmington Trust Company, as Property
Trustee under the Trust Agreement, Indenture Trustee under the Indenture, and
Guarantee Trustee under the Guarantee Agreement, dated the First Closing Date or
the Second Closing Date, as the case may be, addressed to the Underwriters, to
the effect that:
(i) Wilmington Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of the
State of Delaware.
(ii) Wilmington Trust Company has the power and authority to
execute, deliver and perform its obligations under the Trust Agreement, the
Indenture and the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement has been duly authorized, executed and delivered by Wilmington
Trust Company and constitutes a legal, valid and binding obligation of
Wilmington Trust Company, enforceable against Wilmington Trust Company, in
accordance with its terms.
<PAGE>
(iv) The execution, delivery and performance by Wilmington Trust
Company of the Trust Agreement, the Indenture and the Guarantee Agreement
do not conflict with or constitute a breach of the charter or by-laws of
Wilmington Trust Company.
(v) No consent, approval or authorization of, or registration with
or notice to, any governmental authority or agency of the State of Delaware
or the United States of America governing the banking or trust powers of
Wilmington Trust Company is required for the execution, delivery or
performance by Wilmington Trust Company of the Trust Agreement, the
Indenture and the Guarantee Agreement.
(e) The underwriters shall have received on the First Closing Date or the
Second Closing Date, as the case may be, the opinion of Richards, Layton &
Finger, P.A., as special counsel for the Offerors that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and all filings
required as of the date hereof under the Delaware Act with respect to the
creation and valid existence of the Trust as a business trust have been
made.
(ii) Under the Trust Agreement and the Delaware Act, the Trust has
the trust power and authority to own property and to conduct its business,
all as described in the Prospectus.
(iii) The Trust Agreement constitutes a valid and binding obligation
of the Company, the Property Trustee and each of the Administrative
Trustees, and is enforceable against the Company, the Property Trustee and
each of the Administrative Trustees in accordance with its terms.
(iv) Under the Trust Agreement and the Delaware Act, the Trust has
the trust power and authority (i) to execute and deliver, and to perform
its obligations under, this Agreement, and (ii) to issue, and to perform
its obligations under, the Preferred Securities and the Common Securities.
(v) Under the Trust Agreement and the Delaware Act, the execution
and delivery by the Trust of this Agreement, and the performance by the
Trust of its obligations under this Agreement, have been duly authorized by
all necessary trust action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached to the Trust
Agreement as Exhibit E is an appropriate form of certificate to evidence
ownership of the Preferred Securities. The Preferred Securities and the
Common Securities have been duly authorized by the Trust Agreement and are
duly and validly issued and, subject to the qualifications hereinafter
expressed in
<PAGE>
this paragraph (vi), fully paid and non-assessable undivided beneficial
interests in the assets of the Trust. The respective holders of the
Preferred Securities and the Common Securities, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware. Such counsel may note
that the respective holders of the Preferred Securities and the Common
Securities may be obligated, pursuant to the Trust Agreement, to make
certain payments under the Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act, the issuance
of the Preferred Securities and the Common Securities is not subject to
preemptive or similar rights.
(viii) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the Trust of the
Junior Subordinated Debentures, the execution, delivery and performance by
the Trust of this Agreement and the Guarantee Agreement, the consummation
by the Trust of the transactions contemplated by this Agreement and
compliance by the Trust with its obligations under this Agreement do not
violate (a) any of the provisions of the Certificate of Trust or the Trust
Agreement or (b) any applicable Delaware law or Delaware administrative
regulations.
(f) The Underwriters shall have received from Chapman and Cutler, Chicago,
Illinois, counsel for the Underwriters, an opinion dated the First Closing Date
or the Second Closing Date, as the case may be, with respect to the formation of
the Trust, the validity of the Preferred Securities, the Indenture, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement, this Agreement, the
Registration Statement, the Prospectus, and other related matters as the
Underwriters may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters.
(g) The Underwriters shall have received on each of the date hereof, the
First Closing Date and any Second Closing Date a signed letter, dated as of the
date hereof, the First Closing Date or any Second Closing Date, respectively, in
form and substance satisfactory to the Underwriters, from McGladrey & Pullen,
LLP to the effect that they are independent public accountants with respect to
the Trust, the Company and the Subsidiaries within the meaning of the Act and
the related rules and regulations and containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(h) The Underwriters shall have received on each of the date hereof, the
First Closing Date and any Second Closing Date a signed letter, dated as of the
date hereof, the First Closing Date or any Second Closing Date, respectively, in
form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP
to the effect that they are independent public accountants with respect to Great
Western within the meaning of
<PAGE>
the Act and the related rules and regulations and containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement and prior to
the First Closing Date or the Second Closing Date, as the case may be, there
shall not have been any change or any development involving a reasonably
foreseeable change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Offerors or Great
Western Bank otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in your reasonable judgment, is material and adverse to the
Offerors or Great Western Bank and makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Preferred Securities
being delivered at the First Closing Date or the Second Closing Date, as the
case may be, on the terms and in the manner contemplated in the Prospectus.
(j) The Underwriters shall have received on the First Closing Date and the
Second Closing Date, as the case may be, a certificate or certificates of the
chief executive officer and the principal financial officer of the Company, to
the effect that, as of such Closing Date each of them severally represents as
follows:
(i) The Prospectus was filed with the Commission pursuant to Rule
424(b) within the applicable period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 4 of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been
initiated or are, to his knowledge, threatened by the Commission.
(ii) The representations and warranties of the Company set forth in
Section 1 of this Agreement are true and correct at and as of the First
Closing Date and the Second Closing Date, as the case may be, and the
Company has performed all of its obligations under this Agreement to be
performed at or prior to the First Closing Date and the Second Closing
Date, as the case may be.
(k) The Underwriters shall have received on the First Closing Date and the
Second Closing Date, as the case may be, a certificate or certificates of the
Administrative Trustees, to the effect that, as of such Closing Date each of
them severally represents as follows:
(i) The Prospectus was filed with the Commission pursuant to Rule
424(b) within the applicable period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 4 of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been initiated or are, to his knowledge, threatened by the
Commission.
<PAGE>
(ii) The representations and warranties of the Trust set forth in
Section 1 of this Agreement are true and correct at and as of the First
Closing Date and the Second Closing Date, as the case may be, and the
Trust has performed all of its obligations under this Agreement to be
performed at or prior to the First Closing Date and the Second Closing
Date, as the case may be.
(l) The Offerors shall have furnished to the Underwriters such further
certificates and documents as the Underwriters may reasonably have requested.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects reasonably satisfactory to the Underwriters and to Chapman and Cutler,
counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Underwriters by notifying the Trust of such termination in writing or by
telegram at or prior to the First Closing Date. In such event, the Trust and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 7 hereof).
SECTION 7. INDEMNIFICATION. (a) The Offerors jointly and severally agree to
indemnify and hold harmless each Underwriter, each officer and director thereof,
and each person, if any, who controls any Underwriter within the meaning of the
Act, against any losses, claims, damages or liabilities to which such
Underwriter or such persons may became subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus or the Prospectus, including
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading in light of the circumstances under
which they were made, or (iii) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating in any manner
to, the Preferred Securities or the offering contemplated hereby, and which is
included as part of or referred to in any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arising out of or based upon
matters covered by clause (i) or (ii) above, and will reimburse each Underwriter
and each such controlling person for any legal or other expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Offerors shall not be liable (1) in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement, or
omission or alleged omission, made in the Registration Statement, any
Preliminary Prospectus or the Prospectus, including any amendments or
supplements thereto, in reliance upon and in conformity
<PAGE>
with written information furnished to the Offerors by any Underwriter
specifically for use therein or (2) in the case of any matter covered by clause
(iii) above to the extent that it is determined in a final judgment by a court
of competent jurisdiction that such losses, claims, damages or liabilities
resulted directly from any such acts or failures to act undertaken or omitted to
be taken by such Underwriter through its gross negligence, recklessness or
willful misconduct.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Offerors and the trustees and directors and officers who have signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Offerors or any such person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and will reimburse any legal or
other expenses reasonably incurred by the Offerors or any such person in
connection with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, that each Underwriter will be liable
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Trust or the Company by or through the Underwriters
specifically for use therein. The obligations of the Underwriters under this
Section 7(b) are several in proportion to their respective underwriting
obligations and not joint.
(c) The Company agrees to indemnify the Trust against all loss, liability,
claim damage and expense whatsoever, which may become due from the Trust under
subsection (a).
(d) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity or contribution
may be sought pursuant to this Section 7, such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing. No indemnification provided for in Section
7(a) or (b) or contribution provided for in Section 7(e) shall be available with
respect to a proceeding to any party who shall fail to give notice of such
proceeding as provided in this Section 7(d) if the party to whom notice was not
given was unaware of the proceeding to which such notice would have related and
was prejudiced by the failure to give such notice, but the failure to give such
notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party otherwise than on account of
the provisions of Section 7(a) or (b). In case any such proceeding shall be
brought
<PAGE>
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay promptly as incurred the reasonable fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and the indemnified party shall have reasonably concluded that there may be a
conflict between the positions of the indemnifying party and the indemnified
party in conducting the defense of any such action or that there may be legal
defenses available to it or other indemnified parties which are different from
or additional to those available to the indemnifying party. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm at any time for all such indemnified
parties. Such firm shall be designated in writing by the Underwriters and shall
be reasonably satisfactory to the Offerors in the case of parties indemnified
pursuant to Section 7(a) and shall be designated in writing by the Offerors and
shall be reasonably satisfactory to the Underwriters in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under Section 7(a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Preferred Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Offerors on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from
<PAGE>
the offering (before deducting expenses) received by the Offerors bears to the
total underwriting discounts and commissions received by the underwriters, in
each case as set forth on the cover page of the prospectus. The relative fault
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 on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Offerors and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section 7(e) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7(e). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereto) referred to above in this Section 7(e) shall be deemed to include 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 Section 7(e), no Underwriter shall be
required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Preferred Securities purchased by such
Underwriter; and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this Section 7(e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Offerors under this Section 7 shall be in
addition to any liability which the Offerors may otherwise have, and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the Underwriters may otherwise have.
SECTION 8. NOTICES. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or telegraphed
and confirmed as follows: if to the Underwriters, to them c/o Howe Barnes
Investments, Inc., 135 South LaSalle Street, Suite 1500, Chicago, Illinois
60603, Attention: Daniel E. Coughlin, Senior Vice President and Director of
Corporate Finance; if to the Company, to Spectrum Bancorporation, Inc., 10834
Old Mill Road, Suite One, Omaha, Nebraska 68154, Attention: Daniel A. Hamann,
President; and if to the Trust, to it at c/o Spectrum Bancorporation, Inc.,
10834 Old Mill Road, Suite One, Omaha, Nebraska 68154, Attention: Daniel A.
Hamann. All notices given by telegram shall be promptly confirmed by letter. Any
notice to the Trust shall also be copied to the Company at the address
previously stated. Any party may change its address for notice purposes by
written notice to the other parties.
SECTION 9. TERMINATION. This Agreement may be terminated by you by notice
to the Offerors as follows:
<PAGE>
(a) At any time prior to the time this Agreement shall become
effective as to all its provisions, and any such termination shall be
without liability on the part of the Offerors to the Underwriters (except
for the expenses to be paid or reimbursed pursuant to Section 5 and except
to the extent provided in Section 7 hereof) or of any Underwriter to the
Offerors;
(b) At any time prior to the First Closing Date if any of the
following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in or affecting the condition, financial or
otherwise, of the Trust, the Company and the Subsidiaries taken as a whole
or the business affairs, management, financial position, shareholders'
equity or results of operations of the Trust, the Company and the
Subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, (ii) any outbreak or escalation of hostilities or
declaration of war or national emergency after the date hereof or other
national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial markets
of the United States would, in your judgment, make the offering or delivery
of the Preferred Securities impracticable or inadvisable, (iii) suspension
of trading in securities on the New York Stock Exchange or the American
Stock Exchange or limitation on prices (other than limitations on hours or
numbers of days of trading) for securities on either such Exchange, or a
halt or suspension of trading in securities generally which are quoted on
the American Stock Exchange or (iv) declaration of a banking moratorium by
either federal authorities or New York, Iowa, South Dakota, Nebraska or
Missouri state authorities; or
(c) As provided in Section 6 of this Agreement.
SECTION 10. WRITTEN INFORMATION. For all purposes under this Agreement
(including, without limitation, Section 1, Section 3 and Section 7 hereof), the
Offerors understand and agree with each of the Underwriters that the only
written information furnished to the Offerors by the Underwriters specifically
for use in preparation of the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto is under the
caption "Underwriting" in the Preliminary Prospectus and the Prospectus.
SECTION 11. SUCCESSORS. This Agreement has been and is made solely for
the benefit of and shall be binding upon the Underwriters, the Trust and the
Company and their respective successors, executors, administrators, heirs and
assigns, and the trustees and controlling persons and the officers and directors
of any such controlling person referred to herein, and no other person will have
any right or obligation hereunder. The term "successors" shall not include any
purchaser of the Preferred Securities merely because of such purchase.
<PAGE>
SECTION 12. MISCELLANEOUS. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants in this Agreement shall remain in full force and effect
regardless of (a) any termination of this Agreement, (b) any investigation made
by or on behalf of any Underwriter or controlling person thereof, or by or on
behalf of the Offerors or controlling persons thereof and (c) delivery of and
payment for the Preferred Securities under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner to
be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction
or any provision hereof in any other jurisdiction.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Illinois.
<PAGE>
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Offerors and the
Underwriters in accordance with its terms.
Very truly yours,
Spectrum Capital Trust II, a Delaware
business trust
By
Daniel A. Hamann
Administrative Trustee
Spectrum Bancorporation, Inc.
By
Deryl F. Hamann
Chairman
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
Howe Barnes Investments, Inc.
As Representative of the several Underwriters
named in Schedule A
By
Daniel E. Coughlin
Senior Vice President
<PAGE>
SCHEDULE A
SCHEDULE OF UNDERWRITERS
Number of
Preferred Securities
Underwriter to be Purchased
----------- ---------------
Howe Barnes Investments, Inc.
---------
TOTAL: 2,000,000
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