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EXHIBIT 1.1
1,500,000 Preferred Securities
Baylake Capital Trust I
____ % Cumulative Trust
Preferred Securities
(Liquidation Amount of $10 per
Preferred Security)
UNDERWRITING AGREEMENT
----------------------
, 2000
-------
STIFEL, NICOLAUS & COMPANY, INCORPORATED
501 North Broadway, 9th Floor
St. Louis, Missouri 63102
HOWE BARNES INVESTMENTS, INC.
135 South LaSalle Street, Suite 1500
Chicago, Illinois 60603-4398
As Representatives of the Several Underwriters
named in Schedule I hereto
Dear Sirs:
Baylake Corp., a Wisconsin corporation (the "Company"), and its
financing subsidiary, Baylake Capital Trust I, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the "Offerors"), propose
that the Trust issue and sell to the several underwriters listed on Schedule I
hereto (the "Underwriters"), pursuant to the terms of this Agreement, 1,500,000
of the Trust's % Cumulative Trust Preferred Securities, with a liquidation
amount of $10.00 per preferred security (the "Preferred Securities"), to be
issued under the Trust Agreement (as hereinafter defined), the terms of which
are more fully described in the Prospectus (as hereinafter defined). The
aforementioned 1,500,000 Preferred Securities to be sold to the Underwriters are
herein called the "Firm Preferred Securities". Solely for the purpose of
covering over-allotments in the sale of the Firm Preferred Securities, the
Offerors further propose that the Trust issue and sell to the Underwriters, at
their option, up to an additional 225,000 Preferred Securities (the "Option
Preferred Securities") upon exercise of the over-allotment option granted in
Section 1 hereof. The Firm Preferred Securities and any Option Preferred
Securities are herein collectively referred to as the "Designated Preferred
Securities". Stifel, Nicolaus & Company, Incorporated and Howe Barnes
Investments, Inc. are acting jointly as representatives of the Underwriters and
in such capacity are sometimes herein referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
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1. Sale, Purchase and Delivery of Designated Preferred Securities;
Description of Designated Preferred Securities.
(a) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Offerors hereby agree that the Trust shall issue and sell to each of
the Underwriters and each of the Underwriters agrees, severally and not jointly,
to purchase from the Trust, at a purchase price of $10.00 per share (the
"Purchase Price"), the respective number of Firm Preferred Securities set forth
opposite the name of such Underwriter in Schedule I hereto. Because the proceeds
from the sale of the Firm Preferred Securities will be used to purchase from the
Company its Debentures (as hereinafter defined and as described in the
Prospectus), the Company shall pay to each Underwriter a commission of $ per
Firm Preferred Security purchased (the "Firm Preferred Securities Commission").
The Representatives may by notice to the Company amend Schedule I to add,
eliminate or substitute names set forth therein (other than to eliminate the
name of the Representatives) and to amend the number of firm Preferred
Securities to be purchased by any firm or corporation listed thereon, provided
that the total number of Firm Preferred Securities listed on Schedule I shall
equal 1,500,000.
In addition, on the basis of the representations, warranties
and agreements herein contained and subject to the terms and conditions herein
set forth, the Trust hereby grants to the Underwriters, severally and not
jointly, an option to purchase all or any portion of the 225,000 Option
Preferred Securities, and upon the exercise of such option in accordance with
this Section 1, the Offerors hereby agree that the Trust shall issue and sell to
the Underwriters, severally and not jointly, all or any portion of the Option
Preferred Securities at the same Purchase Price per share paid for the Firm
Preferred Securities. If any Option Preferred Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Trust
that proportion (subject to adjustment as the Representatives may determine to
avoid fractional shares) of the number of Option Preferred Securities to be
purchased that the number of Firm Preferred Securities set forth opposite the
name of such Underwriter in Schedule I hereto (or such number increased as set
forth in Section 9 hereof) bears to 1,500,000. Because the proceeds from the
sale of the Option Preferred Securities will be used to purchase from the
Company its Debentures, the Company shall pay to the Underwriters a commission
of $ per Option Preferred Security for each Option Preferred Security purchased
(the "Option Preferred Securities Commission"). The option hereby granted (the
"Option") shall expire 30 days after the Effective Date (as defined herein) and
may be exercised only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Firm Preferred
Securities. The Option may be exercised in whole or in part at any time (but not
more than once) by you giving notice (confirmed in writing) to the Company and
the Trust setting forth the number of Option Preferred Securities as to which
the Underwriters are exercising the Option and the time, date and place for
payment and delivery of certificates for such Option Preferred Securities. Such
time and date of payment and delivery for the Option Preferred Securities (the
"Option Closing Date") shall be determined by you, but shall not be earlier than
two nor later than five full business days after the exercise of such Option,
nor in any event prior to the Closing Date (as hereinafter defined). The Option
Closing Date may be the same as the Closing Date.
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Payment of the Purchase Price and the Firm Preferred
Securities Commission and delivery of certificates for the Firm Preferred
Securities shall be made at the offices of Stifel, Nicolaus & Company,
Incorporated, 501 North Broadway, Ninth Floor, St. Louis, Missouri 63102, or
such other place as shall be agreed to by you and the Offerors, at 10:00 a.m.,
St. Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the 1934
Act, not later than 12:00 p.m. on the fourth) full business day following the
date of this Agreement (the "Closing Date"), or unless postponed in accordance
with the provisions of Section 9. If the Underwriters exercise the Option,
payment of the Purchase Price and Option Preferred Securities Commission and
delivery of certificates for such Option Preferred Securities shall be made on
the Option Closing Date at the offices of counsel for the Offerors, or at such
other place as the Offerors and you shall determine. Such payments shall be made
to an account designated by the Trust by wire transfer of same-day funds, in the
amount of the Purchase Price therefor, against delivery by or on behalf of the
Trust to you for the respective accounts of the several Underwriters of
certificates for the Designated Preferred Securities to be purchased by the
Underwriters. Delivery of the Designated Preferred Securities may be made by
credit through full FAST transfer to the accounts at The Depository Trust
Company ("DTC") designated by the Representatives. The Designated Preferred
Securities shall be represented in the form of one or more fully registered
global notes in book-entry form registered in the name of the nominee of DTC.
Time shall be of the essence, and delivery of the certificates
for the Designated Preferred Securities at the time and place specified pursuant
to this Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Property Trustee and Delaware Trustee, the
Administrative Trustees named therein, (collectively, the "Trustees"), and the
Company, in substantially the form heretofore delivered to the Underwriters,
said Agreement being hereinafter referred to as the "Trust Agreement". In
connection with the issuance of the Designated Preferred Securities, the Company
proposes (i) to issue its % Subordinated Debentures due 2030 (the "Debentures")
pursuant to an Indenture, to be dated as of , 2000, between the Company and
Wilmington Trust Company, as indenture trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Preferred Securities pursuant to a
Guarantee Agreement between the Company and Wilmington Trust Company, as
guarantee trustee (the "Guarantee"), to the extent described therein.
2. Representations and Warranties. The Offerors jointly and severally
represent and warrant to, and agree with, each of the Underwriters that:
(a) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities Exchange Act
of 1934, as amended (the "1934 Act"), and the rules and regulations thereunder
(the "1934 Act Regulations") at the time they were filed with the Commission,
complied as to form in all material respects with the requirements of the 1934
Act and the 1934 Act Regulations and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
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(b) The Offerors have prepared and filed with the Commission a
registration statement on Form S-3 (File Numbers 333- and 333- -01)
for the registration of the Designated Preferred Securities, the Guarantee and
$17,783,510 aggregate principal amount of Debentures under the Securities Act of
1933, as amended (the "1933 Act"), including the related prospectus subject to
completion, and one or more amendments to such registration statement may have
been so filed, in each case in conformity in all material respects with the
requirements of the 1933 Act, the rules and regulations promulgated thereunder
(the "1933 Act Regulations") and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations thereunder. Copies of
such registration statement, including any amendments thereto and any documents
incorporated by reference therein, each Preliminary Prospectus (as defined
herein) contained therein and the exhibits, financial statements and schedules
to such registration statement, as finally amended and revised, have heretofore
been delivered by the Offerors to the Representatives. As used in this
Agreement, the term "Registration Statement" means such registration statement,
as amended at the time when it was or is declared effective under the 1933 Act,
including (1) all financial schedules and exhibits thereto, (2) all documents
(or portions thereof) incorporated by reference therein filed under the 1934
Act, and (3) any information omitted therefrom pursuant to Rule 430A of the 1933
Act Regulations ("Rule 430A") and included in the Prospectus (as hereinafter
defined); the term "Preliminary Prospectus" means each prospectus subject to
completion filed with such registration statement or any amendment thereto
including all documents (or portions thereof) incorporated by reference therein
under the 1934 Act (including the prospectus subject to completion, if any,
included in the Registration Statement and each prospectus filed pursuant to
Rule 424(a) under the 1933 Act); and the term "Prospectus" means the prospectus
first filed with the Commission pursuant to Rule 424(b)(1) or (4) or, if no
prospectus is required to be filed pursuant to Rule 424(b)(1) or (4), the
prospectus included in the Registration Statement, in each case including the
financial schedules and all documents (or portions thereof) incorporated by
reference therein under the 1934 Act. The date on which the Registration
Statement becomes effective is hereinafter referred to as the "Effective Date."
(c) The documents incorporated by reference in the Preliminary
Prospectus or Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the Commission, as the
case may be, complied in all material respects with the requirements of the 1934
Act and the 1934 Act Regulations, and when read together and with the other
information in the Preliminary Prospectus or Prospectus, as the case may be, at
the time the Registration Statement became or becomes effective and at the
Closing Date and any Option Closing Date, did not or will not, as the case may
be, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. As of
the date that each Preliminary Prospectus was filed with the Commission or as of
the date that the Prospectus and any amendment or supplement thereto was filed
with the Commission (or, if not filed, on the date provided by the Offerors to
the Underwriters in connection with the offering and sale of the Preferred
Securities), as the case may be, no event has or will have occurred which should
have been set forth in an amendment or supplement to any of the documents
incorporated by reference in the Preliminary Prospectus or Prospectus which has
not then been set forth in such an amendment or supplement.
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(d) No order preventing or suspending the use of any
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) has been issued by the Commission, nor has the
Commission, to the knowledge of the Offerors, threatened to issue such an order
or instituted proceedings for that purpose. Each Preliminary Prospectus, at the
time of filing thereof, (A) complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and (B) did not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Offerors by any of the Underwriters expressly for
inclusion in the Prospectus beneath the heading "Underwriting" and the last
sentence on the cover page of the Prospectus (such information referred to
herein as the "Underwriters' Information"). As of the date that each Preliminary
Prospectus was filed with the Commission or as of the date that the Prospectus
and any amendment or supplement thereto was filed with the Commission (or, if
not filed, on the date provided by the Offerors to the Underwriters in
connection with the offering and sale of the Preferred Securities), as the case
may be, no event has or will have occurred which should have been set forth in
such an amendment or supplement to the Preliminary Prospectus or Prospectus
which has not then been set forth in such an amendment or supplement. Each
Preliminary Prospectus and the Prospectus will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval ("EDGAR") system, except
to the extent permitted by Regulation S-T.
(e) The Registration Statement has been declared effective
under the 1933 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, to the
Company's knowledge, threatened by the Commission. At the Effective Date and at
all times subsequent thereto, up to and including the Closing Date and, if
applicable, the Option Closing Date, the Registration Statement and any
post-effective amendment thereto (A) complied and will comply in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder) and (B) did not
and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, not misleading. At the Effective Date and at all times when the
Prospectus is required to be delivered in connection with offers and sales of
Designated Preferred Securities, including, without limitation, the Closing Date
and, if applicable, the Option Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act (and the rules and regulations thereunder) and (B) did not contain
and will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty does not
apply to Underwriters' Information. As of the date that the Registration
Statement was filed with the Commission, no event has or will have occurred
which should have been set forth in an amendment or supplement to the
Registration Statement which has not then been set forth in such an amendment or
supplement. The Registration Statement will be identical to the electronically
transmitted copy
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thereof filed with the Commission pursuant to its EDGAR system, except to the
extent permitted by Regulation S-T.
(f) (i) The Company is organized, validly existing and in
active status under the laws of the State of Wisconsin, with full corporate and
other power and authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus)
and as currently being conducted and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended (the "BHC Act").
(ii) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the
Delaware Business Trust Act with the power and authority (trust and
other) to own its property and conduct its business as described in the
Registration Statement and Prospectus, to issue and sell its common
securities (the "Common Securities") to the Company pursuant to the
Trust Agreement, to issue and sell the Designated Preferred Securities,
to enter into and perform its obligations under this Agreement and to
consummate the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Trust; the Trust has
conducted and has the authority to conduct no business other than the
transactions contemplated by this Agreement, the Trust Agreement and
described in the Prospectus; the Trust is not a party to or bound by
any agreement or instrument other than this Agreement, the Trust
Agreement and the agreements and instruments contemplated by the Trust
Agreement and described in the Prospectus; the Trust has no liabilities
or obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described in
the Prospectus; the Trust is not a party to or subject to any action,
suit or proceeding of any nature; the Trust is, and at the Closing Date
or any Option Closing Date will be, classified as a grantor trust for
United States federal income tax purposes; the Trust is not, and at the
Closing Date or any Option Closing Date will not be, to the knowledge
of the Offerors, classified as an association taxable as a corporation
for United States federal income tax purposes; and the Trust is, and as
of the Closing Date or any Option Closing Date will be, treated as a
consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
(g) The Company has six (6) direct or indirect subsidiaries,
five (5) of which have material ongoing operations. They are listed on Exhibit A
attached hereto and incorporated herein (the "Subsidiaries"). With the exception
of United Financial Services, Inc., the Company does not own or control,
directly or indirectly, more than 5% of any class of equity security of any
corporation, association or other entity that conducts material ongoing
operations other than the Subsidiaries. Each Subsidiary which conducts material
ongoing operations (together, the "Material Subsidiaries") is indicated as such
on Exhibit A and is a state bank, trust company or corporation duly organized or
incorporated (as applicable), validly existing and in active status, or good
standing, as applicable, with all applicable Regulators (as defined below) and
under the
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laws of its respective jurisdiction of organization or incorporation. Each such
Material Subsidiary has full corporate and other power and authority to own,
lease and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and as currently being
conducted. The deposit accounts of Baylake Bank (the "Bank") are insured by the
Bank Insurance Fund administered by the Federal Deposit Insurance Corporation
(the "FDIC") up to the maximum amount provided by law; and no proceedings for
the modification, termination or revocation of any such insurance are pending
or, to the knowledge of the Offerors, threatened.
(h) The Company and each of the Subsidiaries is duly qualified
to transact business as a foreign corporation and is in active status or good
standing, as applicable, in each other jurisdiction in which it owns or leases
property or conducts its business so as to require such qualification and in
which the failure to so qualify would, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. All of the issued and outstanding shares
of capital stock of the Subsidiaries (A) have been duly authorized and are
validly issued, (B) are fully paid and nonassessable except to the extent such
shares may be deemed assessable under 12 U.S.C. Section 1831o or under
applicable state banking law, and (C) except as disclosed in the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus),
are wholly owned, directly or indirectly, by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, restriction upon voting
or transfer, preemptive rights or other claim.
(i) The capital stock of the Company and the equity securities
of the Trust conform to the description thereof contained in the Registration
Statement and Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized and validly issued
and are fully paid and nonassessable, and no such shares were issued in
violation of the preemptive or similar rights of any security holder of an
Offeror; no person has any preemptive or similar right to purchase any shares of
capital stock or equity securities of the Offerors. Except as disclosed in the
Registration Statement and Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no outstanding
rights, options or warrants to acquire any securities of the Offerors or the
Subsidiaries, and there are no outstanding securities convertible into or
exchangeable for any securities of the Offerors or the Subsidiaries and no
restrictions upon the voting or transfer of any capital stock of the Company or
equity securities of the Trust pursuant to the Company's corporate charter or
bylaws, the Trust Agreement or any agreement or other instrument to which an
Offeror is a party or by which an Offeror is bound. As of the date set forth
therein, the Company has an authorized and outstanding capitalization as set
forth in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus).
(j) (i) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in accordance with
and upon the terms and conditions set forth in this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus). All
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corporate and trust action required to be taken by the Offerors for the
authorization, issuance, sale and delivery of the Designated Preferred
Securities in accordance with such terms and conditions has been validly and
sufficiently taken. The Designated Preferred Securities, when delivered and paid
for in accordance with this Agreement, will be duly and validly issued and
outstanding, will be fully paid and nonassessable undivided beneficial interests
in the assets of the Trust, will be entitled to the benefits of the Trust
Agreement, will not be issued in violation of or subject to any preemptive or
similar rights, and will conform to the description thereof contained in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and the Trust Agreement. None
of the Designated Preferred Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage, pledge, encumbrance,
restriction upon voting or transfer, preemptive rights or other claim.
(ii) The Debentures have been duly and validly authorized,
and, when duly and validly executed, authenticated and issued as
provided in the Indenture and delivered to the Trust pursuant to the
Trust Agreement, will constitute valid and legally binding obligations
of the Company, 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 description
thereof contained in the Prospectus and will be owned by the Trust free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon transfer, preemptive rights or other
claim.
(iii) The Guarantee has been duly and validly authorized,
and, when duly and validly executed and delivered to the guarantee
trustee for the benefit of the Trust, will constitute a valid and
legally binding obligation of the Company and will conform to the
description thereof contained in the Prospectus.
(iv) The Agreement as to Expenses and Liabilities between
the Company and the Trust (the "Expense Agreement") has been duly and
validly authorized, and, when duly and validly executed and delivered
by the Company, will constitute a valid and legally binding obligation
of the Company and will conform to the description thereof contained in
the Prospectus.
(k) The Offerors and the Subsidiaries have complied with all
foreign, federal, state and local statutes, regulations, ordinances and rules
applicable to the ownership and operation of their properties or the conduct of
their businesses as described in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted, except where the failure to be in
compliance would not have a material adverse effect upon the condition
(financial or otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors and the Subsidiaries have all permits,
easements, consents, licenses, franchises and other governmental and regulatory
authorizations from all appropriate
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federal, state, local or other public authorities ("Permits") as are necessary
to own and lease their properties and conduct their businesses in the manner
described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), except
where the failure to have such Permits would not have a material adverse effect
upon the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the Subsidiaries on a
consolidated basis. All material Permits are in full force and effect and each
of the Offerors and the Subsidiaries are in all material respects complying
therewith, and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or will result in any other
material impairment of the rights of the holder of any material Permit, subject
in each case to such qualification as may be adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). No material Permit contains any restriction that would
materially impair the ability of the Company or the Subsidiaries to conduct
their businesses in the manner consistent with their past practices. Neither the
Offerors nor any of the Subsidiaries has received notice or otherwise has
knowledge of any proceeding or action relating to the revocation or modification
of any material Permit.
(m) Neither of the Offerors nor any of the Subsidiaries is in
breach or violation of its corporate charter, by-laws or other governing
documents (including without limitation, the Trust Agreement) in any material
respect. Neither of the Offerors nor any of the Subsidiaries is, and to the
knowledge of the Offerors no other party is, in violation, breach or default
(with or without notice or lapse of time or both) in the performance or
observance of any term, covenant, agreement, obligation, representation,
warranty or condition contained in (A) any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease, franchise, license, material
Permit or any other agreement or instrument to which it is a party or by which
it or any of its properties may be bound, which breach, violation or default
could have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, and to the knowledge of the
Offerors, no other party has asserted that the Offerors or any of the
Subsidiaries is in such violation, breach or default (provided that the
foregoing shall not apply to defaults by borrowers from the Bank), or (B) except
as disclosed in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Offerors or
the Subsidiaries or any of their respective properties the breach, violation or
default of which could have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis.
(n) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this Agreement, the
Trust Agreement, the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) do not
and will not conflict with, result in the creation or imposition of any material
lien, claim, charge, encumbrance or restriction upon any property or assets of
the Offerors or the Subsidiaries or the Designated Preferred Securities pursuant
to, constitute a breach or violation of, or constitute a default under, with or
without notice or lapse of time or both, any of the terms, provisions or
conditions of the charter or by-laws of the Company or the Subsidiaries, the
Trust Agreement, the Guarantee, the Indenture, any indenture, mortgage,
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deed of trust, loan or credit agreement or note, or any material contract,
lease, franchise, license, Permit or any other agreement or instrument to which
the Offerors or the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Offerors or
the Subsidiaries or any of their respective properties which conflict, creation,
imposition, breach, violation or default would have either singly or in the
aggregate a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis. No authorization, approval,
consent or order of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by this Agreement, the
Trust Agreement, the Indenture, the Guarantee, the Registration Statement and
the Prospectus, except such as have been obtained under the 1933 Act, the Trust
Indenture Act and from the American Stock Exchange relating to the listing of
the Designated Preferred Securities, and such as may be required under state
securities laws or Interpretations or Rules of the National Association of
Securities Dealers, Inc. ("NASD") in connection with the purchase and
distribution of the Designated Preferred Securities by the Underwriters.
(o) The Offerors have all requisite power and authority to
enter into this Agreement, and this Agreement has been duly and validly
authorized, executed and delivered by the Offerors and constitutes the legal,
valid and binding agreement of the Offerors, enforceable against the Offerors in
accordance with its terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable securities laws.
Each of the Indenture, the Trust Agreement, the Guarantee and the Expense
Agreement has been duly authorized by the Company, and, when executed and
delivered by the Company on the Closing Date, each of said agreements will
constitute a valid and legally binding obligation of the Company and will be
enforceable against the Company in accordance with its terms, except 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 and except as any indemnification or
contribution provisions thereof may be limited under applicable securities laws.
Each of the Indenture, the Trust Agreement and the Guarantee has been duly
qualified under the Trust Indenture Act and will conform to the description
thereof contained in the Prospectus.
(p) The Company and the Subsidiaries have good and marketable
title in fee simple to all real property and good title to all personal property
owned by them and material to their business, in each case free and clear of all
security interests, liens, mortgages, pledges, encumbrances, restrictions,
claims, equities and other defects except such as are referred to in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) or such as do not materially affect the value of such
property in the aggregate and do not materially interfere with the use made or
proposed to be made of such property; and all of the leases material to the
operations of the Company and the Subsidiaries under which the Company or the
Subsidiaries hold real or personal property are valid, existing and enforceable
leases and in full force and effect with such exceptions as are not material and
do not materially interfere with the use made or proposed to be made of such
real or personal property, and neither the Company nor
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<PAGE> 11
any of the Subsidiaries is in default in any material respect of any of the
terms or provisions of any such leases.
(q) Smith & Gesteland, LLP, who have certified the
consolidated financial statements of the Company and its subsidiaries, including
the notes thereto, included or incorporated by reference in the Registration
Statement and Prospectus, are independent public accountants with respect to the
Company and its subsidiaries, as required by the 1933 Act and the 1933 Act
Regulations.
(r) The consolidated financial statements including the notes
thereto, included or incorporated by reference in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) with respect to the Company and its subsidiaries comply
in all material respects with the 1933 Act and the 1933 Act Regulations and
present fairly the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated statements of
income, cash flows and changes in stockholder equity of the Company and its
subsidiaries for the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, except
that the interim financial statements are subject to normal year-end adjustments
and do not include all footnotes required by generally accepted accounting
principles for audited financial statements. The selected consolidated financial
data concerning the Company and its subsidiaries included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) comply in all
material respects with the 1933 Act and the 1933 Act Regulations, have been
derived from the financial statements or operating records of the Company,
present fairly the information set forth therein, and have been compiled on a
basis consistent with that of the consolidated financial statements of the
Company in the Registration Statement and the Prospectus (or such Preliminary
Prospectus). The other financial, statistical and numerical information included
in the Registration Statement and the Prospectus (or such Preliminary
Prospectus) complies in all material respects with the 1933 Act and the 1933 Act
Regulations, has been derived from the financial statements or operating records
of the Company, presents fairly the information shown therein, and to the extent
applicable has been compiled on a basis consistent with the consolidated
financial statements of the Company included in the Registration Statement and
the Prospectus (or such Preliminary Prospectus).
(s) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), except as otherwise
stated therein:
(i) neither of the Offerors nor any of the Subsidiaries
has sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree which is material to the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis;
(ii) there has not been any material adverse change in,
or any development which is reasonably likely to have a material
adverse effect on, the condition (financial or otherwise), earnings,
affairs, business, prospects or results
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<PAGE> 12
of operations of the Offerors and the Subsidiaries on a
consolidated basis, whether or not arising in the ordinary
course of business;
(iii) neither of the Offerors nor any of the Subsidiaries
has incurred any liabilities or obligations, direct or
contingent, or entered into any material transactions, other
than in the ordinary course of business, which are material
to the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis;
(iv) neither of the Offerors has declared or paid any
dividend and neither of the Offerors nor any of the
Subsidiaries has become delinquent in the payment of
principal or interest on any outstanding borrowings;
(v) there has not been any change in the capital stock,
long-term debt, obligations under capital leases or, other
than in the ordinary course of business, short-term
borrowings of the Offerors or the Subsidiaries; and
(vi) there has not occurred any other event and there
has arisen no set of circumstances required to be disclosed
pursuant to the 1933 Act or the 1933 Act Regulations which
has not been so set forth in the Registration Statement or
such Prospectus as fairly and accurately summarized therein.
(t) Except as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or proceeding is
pending or, to the knowledge of the Offerors, threatened, against or affecting
the Offerors or the Subsidiaries or any of their respective properties before or
by any court or any regulatory, administrative or governmental official,
commission, board, agency or other authority or body, or any arbitrator, wherein
an unfavorable decision, ruling or finding would have a material adverse effect
on the consummation of this Agreement or the transactions contemplated herein or
the condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Offerors and the Subsidiaries on a consolidated
basis or which is required to be disclosed in the Registration Statement or the
Prospectus (or such Preliminary Prospectus) and is not so disclosed.
(u) There are no contracts or other documents required to be
filed as exhibits to the Registration Statement by the 1933 Act or the 1933 Act
Regulations or the Trust Indenture Act (or any rules or regulations thereunder)
which have not been filed as exhibits to or incorporated by reference into the
Registration Statement, or that are required to be summarized in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) that are not so summarized.
(v) Neither of the Offerors has taken, directly or indirectly,
any action causing or resulting in or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation of
any security of the Offerors in connection with the sale or resale of the
Designated Preferred Securities in violation of the Commission's rules and
regulations, including, but not limited to, Regulation M, nor is either Offeror
aware of any such action having been taken or to be taken by any affiliate of
the Offerors.
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<PAGE> 13
(w) The Offerors and the Subsidiaries own, or possess adequate
rights to use, all patents, copyrights, trademarks, service marks, trade names
and other rights necessary to conduct the businesses now conducted by them or as
described in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) except where the failure to own or possess any
such patents, copyrights, trademarks, service marks, trade names or other rights
would not have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations of
the Company and the Subsidiaries on a consolidated basis, and neither the
Offerors nor the Subsidiaries has received any notice of infringement or
conflict with asserted rights of others with respect to any patents, copyrights,
trademarks, service marks, trade names or other rights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, and the Offerors do not know of
any basis for any such infringement or conflict.
(x) Except as set forth in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), no
labor dispute involving the Company or the Subsidiaries exists or, to the
knowledge of the Offerors, is imminent which might be expected to have a
material adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis or which is required to be disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). Neither the Company nor any of the Subsidiaries has
received notice of any existing or threatened labor dispute by the employees of
any of its principal suppliers, customers or contractors which might be expected
to have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(y) The Offerors and the Subsidiaries have timely and properly
prepared and filed, or have timely and properly filed extensions for, all
necessary federal, state, local and foreign tax returns which are required to be
filed and have paid all taxes shown as due thereon and have paid all other taxes
and assessments to the extent that the same shall have become due, except such
as are being contested in good faith or where the failure to so timely and
properly prepare and file would not have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries on a consolidated
basis. The Offerors have no knowledge of any tax deficiency which has been or
might be assessed against the Offerors or the Subsidiaries which, if the subject
of an unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the Subsidiaries on a
consolidated basis.
(z) Each of the contracts, agreements and instruments material
to the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company or any of its Subsidiaries
described or referred to in the Registration Statement or the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus) and
each contract, agreement and instrument filed as an exhibit to the Registration
Statement is in full force and effect and is the legal, valid and binding
agreement of the Offerors or the Subsidiaries, enforceable in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
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<PAGE> 14
creditors generally and subject to general principles of equity. Except as
disclosed in the Prospectus (or such Preliminary Prospectus), to the knowledge
of the Offerors, no other party to any such agreement is (with or without notice
or lapse of time or both) in breach or default in any material respect
thereunder.
(aa) No relationship, direct or indirect, exists between or
among the Offerors or the Subsidiaries, on the one hand, and the directors,
officers, trustees, shareholders, customers or suppliers of the Offerors or the
Subsidiaries, on the other hand, which is required to be described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) which is not adequately
described therein.
(bb) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering and sale
under the 1933 Act by reason of the filing of the Registration Statement with
the Commission or the issuance and sale of the Designated Preferred Securities
except as adequately disclosed in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(cc) The Designated Preferred Securities have been approved
for listing on the American Stock Exchange subject to official notice of
issuance.
(dd) Except as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), there
are no contractual encumbrances or restrictions or material legal restrictions
required to be described therein, on the ability of any of the Material
Subsidiaries (A) to pay dividends or make any other distributions on its capital
stock or to pay any indebtedness owed to the Company, (B) to make any loans or
advances to, or investments in, the Offerors (except as may be restricted by law
or regulation in the context of transactions between or among affiliated
parties) or (C) to transfer any of its property or assets to the Offerors.
(ee) Neither of the Offerors nor any Subsidiary is an
"investment company", a company "controlled" by an "investment company" or an
"investment adviser" within the meaning of the Investment Company Act of 1940,
as amended (the "Investment Company Act") or the Investment Advisers Act of
1940, as amended (the "Advisers Act").
(ff) The Offerors have not distributed and will not distribute
prior to the Closing Date any prospectus in connection with the Offering, other
than a Preliminary Prospectus, the Prospectus, the Registration Statement and
the other materials permitted by the 1933 Act and the 1933 Act Regulations and
reviewed by the Representatives.
(gg) The activities of the Offerors and the Subsidiaries are
permitted under applicable federal and state banking laws and regulations. The
Company and the Bank have all necessary approvals, including the approval of the
Wisconsin Department of Financial Institutions (the "WDFI") and the Board of
Governors of the Federal Reserve System ("FRB"), as applicable, to own the
capital stock of the Subsidiaries. Neither the Company nor any of the
Subsidiaries is a party or subject to any agreement or memorandum with, or
directive or other order issued by, the FRB, the WDFI, the FDIC or other
regulatory authority having jurisdiction over it (each, a "Regulator," and
collectively, the "Regulators"), which imposes any restrictions or requirements
14
<PAGE> 15
not generally applicable to entities of the same type as the Company and the
Subsidiaries. Neither the Company nor any Subsidiary is subject to any directive
from any Regulator to make any material change in the method of conducting their
respective businesses, and no such directive is pending or, to the best
knowledge of the Company, threatened by such Regulators.
(hh) The Bank has properly administered all accounts for which
it acts as a fiduciary, including but not limited to accounts for which it
serves as a trustee, agent, custodian, personal representative, guardian,
conservator or investment advisor, in accordance with all material terms of the
governing documents and applicable state and federal law and regulation and
common law, except where the failure to be in compliance would not have a
material adverse effect upon the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Offerors and the
Subsidiaries taken as a whole. Neither the Bank nor any of its directors,
officers or employees, has committed any material breach of trust with respect
to any such fiduciary account, and the accountings for each such fiduciary
account are true and correct in all material respects and accurately reflect the
assets of such fiduciary account in all material respects.
(ii) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(jj) The Offerors and the Subsidiaries are in compliance with
all provisions of Section 517.075, Florida Statutes, relating to doing business
with the Government of Cuba or with any person or affiliate located in Cuba.
(kk) Neither the Company nor any Subsidiary has any liability
under any "pension plan," as defined in the Employee Retirement Income Security
Act of 1974, as amended.
(ll) Each of the Company and each Subsidiary makes and keeps
books, records and accounts which, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of its respective assets, and
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with
management's general or specific authorizations, (B) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
U.S. generally accepted accounting principles and to maintain asset
accountability, (C) access to assets 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.
(mm) 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.
(nn) No report or application filed by the Company or any of
its Subsidiaries with the FRB, the FDIC, the WDFI or any other state or federal
regulatory authority, as of the
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<PAGE> 16
date it was filed or amended, 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 in
all material respects with the applicable requirements of the FRB, the FDIC, the
WDFI or any other state or federal regulatory authority, as the case may be.
(oo) To the best knowledge of the Company, based upon current
guidelines of the FRB and correspondence received from the Federal Reserve Bank
of Chicago, the Debentures will constitute "Tier 1" capital (as defined in 12
C.F.R. Part 225), subject to applicable regulatory restrictions on the amount
thereof that can be included in Tier 1 capital.
(pp) To the best knowledge of the Company, no hazardous
substances, hazardous wastes, pollutants or contaminants have been deposited or
disposed of in, on or under the properties of the Company or any of the
Subsidiaries (including properties owned, managed or controlled by a Subsidiary
in connection with its lending activities) during the period in which the
Company or the Subsidiary has owned, occupied, managed, controlled or operated
such properties, in violation of any environmental, safety, health or similar
laws or regulations, orders, decrees or permits relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Regulations"), or any order,
judgment, decree or permit which would require remedial action under any
Environmental Regulation, excluding any violation or remedial action which would
not have, in the aggregate, a material adverse effect upon the condition
(financial or otherwise), earnings, affairs, business, prospects or results of
operations of Company and the Subsidiaries on a consolidated basis. The Company
and each of the Subsidiaries (i) is in material compliance with all applicable
Environmental Regulations and (ii) has received all permits, licenses, consents
or other approvals required under applicable Environmental Regulations to
conduct its business, in each case except where the failure to do so would not
have a material adverse effect upon the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(qq) None of the Offerors, the Subsidiaries or, to the best
knowledge of the Offerors, any other person associated with or acting on behalf
of the Offerors or any of the Subsidiaries, including, without limitation, any
director, officer, agent, or employee of any of the Subsidiaries or the Company
has, directly or indirectly, while acting on behalf of such Offeror or
Subsidiary (i) used any corporate funds for unlawful contributions, gifts,
entertainment, or other unlawful expenses relating to political activity; (ii)
made any unlawful contribution to any candidate for foreign or domestic office,
or to any foreign or domestic government officials or employees or other person
charged with similar public or quasi-public duties, other than payments required
or permitted by the laws of the United States or any jurisdiction thereof or to
foreign or domestic political parties or campaigns from corporate funds, or
failed to disclose fully any contribution in violation of law; (iii) violated
any provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv)
made any other payment of funds of either or both of the Offerors or a
Subsidiary or retained any funds which constitute a violation of any law, rule
or regulation or which was or is required to be disclosed in the Registration
Statement or the Prospectus pursuant to the requirements of the 1933 Act or the
1933 Act Regulations.
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<PAGE> 17
(rr) The employee benefit plans, including employee welfare
benefit plans, of the Company and each of the Subsidiaries (the "Employee
Plans") have been operated in material compliance with the applicable provisions
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
the Internal Revenue Code of 1986, as amended (the "Code"), all regulations,
rulings and announcements promulgated or issued thereunder and all other
applicable governmental laws and regulations (except to the extent such
noncompliance would not, in the aggregate, have a material adverse effect upon
the condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations or the Offerors or the Subsidiaries on a consolidated
basis). No reportable event under Section 4043(c) of ERISA has occurred with
respect to any Employee Plan of the Company or any of the Subsidiaries for which
the reporting requirements have not been waived by the Pension Benefit Guaranty
Corporation. No prohibited transaction under Section 406 of ERISA, for which an
exemption does not apply, has occurred with respect to any Employee Plan of the
Company or any of the Subsidiaries. There are no pending or, to the Company's
best knowledge, threatened claims by or on behalf of any Employee Plan, by any
employee or beneficiary covered under any such Employee Plan or by any
governmental authority or otherwise involving such Employee Plans or any of
their respective fiduciaries (other than for routine claims for benefits). All
Employee Plans that are group health plans have been operated in material
compliance with the group health plan continuation coverage requirements of
Section 4980B of the Code.
3. Offering by the Underwriters. After the Registration Statement
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriters propose to offer the Firm
Preferred Securities for sale to the public upon the terms and conditions set
forth in the Prospectus. The Underwriters may from time to time thereafter
reduce the public offering price and change the other selling terms, provided
the proceeds to the Trust shall not be reduced as a result of such reduction or
change. Because the NASD may view the Preferred Securities as interests in a
direct participation program, the offering of the Preferred Securities is being
made in compliance with the applicable provisions of Rule 2810 of the NASD's
Conduct Rules.
The Underwriters may reserve and sell such of the Designated
Preferred Securities purchased by the Underwriters as the Underwriters may elect
to dealers chosen by it (the "Selected Dealers") at the public offering price
set forth in the Prospectus less the applicable Selected Dealers' concessions
set forth therein, for re-offering by Selected Dealers to the public at the
public offering price. The Underwriters may allow, and Selected Dealers may
re-allow, a concession set forth in the Prospectus to certain other brokers and
dealers.
4. Certain Covenants of the Offerors. The Offerors jointly and
severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then the
Offerors will prepare and file, in accordance with Rule 430A and Rule 424(b) of
the 1933 Act Regulations ("Rule 424(b)"), the Prospectus or, if required by Rule
430A, a post-effective amendment to the Registration Statement (including the
Prospectus) in the form provided to and not objected to by the Representatives.
17
<PAGE> 18
containing all information so omitted and will provide evidence satisfactory to
the Representatives of such timely filing. If such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the 1933 Act, then the Offerors will prepare and file an
amendment to such registration statement, including a form of final prospectus,
necessary to permit such registration statement to become effective, a copy of
which amendment has been provided to and not objected to by the Representatives
prior to (or is agreed to by the Representatives subsequent to) the execution of
this Agreement.
(b) The Offerors shall notify you immediately, and, if requested
by you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when
the Prospectus or any supplement to the Prospectus or any amended
Prospectus has been filed;
(ii) of the receipt of any comments or requests from the
Commission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement
the Registration Statement, any Preliminary Prospectus or the
Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, or suspending
the qualification of any of the Designated Preferred Securities for
offering or sale in any jurisdiction or the institution or threat of
institution of any proceedings for any of such purposes. The Offerors
shall use their best efforts to prevent the issuance of any such stop
order or of any other such order and if any such order is issued, to
cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to
time without charge, as soon as available, as many copies as the Underwriters
may reasonably request of (i) the registration statement as originally filed and
of all amendments thereto, in executed form, including exhibits, whether filed
before or after the Effective Date, (ii) all exhibits and documents incorporated
therein or filed therewith, (iii) all consents and certificates of experts in
executed form, (iv) each Preliminary Prospectus and all amendments and
supplements thereto, and (v) the Prospectus, and all amendments and supplements
thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply to the best of their ability with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Designated
Preferred Securities as contemplated herein and in the Trust Agreement and the
Prospectus. The Offerors shall not file any amendment to the registration
statement as originally filed or to the Registration Statement and shall not
file any amendment thereto or make any amendment or supplement to any
Preliminary Prospectus or to the Prospectus unless you shall previously have
been advised in writing and provided a copy a reasonable time prior to the
proposed filings thereof and you or counsel for the Underwriters shall not have
objected to such proposed filing. If it is necessary, in the Company's
reasonable opinion or in the reasonable opinion of the Company's counsel to
amend or supplement the Registration Statement or the Prospectus in connection
with the distribution of the Designated Preferred Securities, the Offerors shall
forthwith amend or supplement the Registration
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<PAGE> 19
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission (provided the Underwriters or counsel for the Underwriters do not
reasonably object) and furnishing to you such number of copies as you may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or the Prospectus, as the case may be
(in form and substance reasonably satisfactory to you and counsel for the
Underwriters). If any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus to correct an untrue statement of a material
fact or to include a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or if for
any reason it is necessary at any time to amend or supplement the Prospectus to
comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall,
subject to the second sentence of this subsection (d), forthwith amend or
supplement the Prospectus by preparing and filing with the Commission, and
furnishing to you, such number of copies as you may reasonably request of an
amendment or amendments of, or a supplement or supplements to, the Prospectus
(in form and substance satisfactory to you and counsel for the Underwriters) so
that, as so amended or supplemented, the Prospectus shall not contain an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(e) The Offerors shall use their best efforts to permit the
Designated Preferred Securities to be eligible for clearance and settlement
through the facilities of DTC.
(f) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the Effective Date, conforming with the requirements of Section 11(a) of
the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall
furnish to the Representatives copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the Commission) or with the
American Stock Exchange, any national securities exchange, or other
self-regulatory organization, and such other documents, reports and information
concerning the business and financial conditions of the Offerors as the
Representatives may reasonably request, other than such documents, reports and
information for which the Offerors have the legal obligation not to reveal to
the Representatives.
(i) Until the earlier of the Option Closing Date or the expiration
of the Option, the Offerors shall not, directly or indirectly, offer for sale,
sell or agree to sell or otherwise dispose of any Designated Preferred
Securities other than pursuant to this Agreement, any other beneficial interests
in the assets of the Trust or any securities of the Trust or the Company that
are substantially similar to the Designated Preferred Securities or the
Debentures,
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including any guarantee of such beneficial interests or substantially similar
securities, or securities convertible into or exchangeable for or that represent
the right to receive any such beneficial interest or substantially similar
securities, without the prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to become listed on the American Stock Exchange
or in lieu thereof another national securities exchange or to be designated for
inclusion in the Nasdaq National Market, and to remain so listed or included for
at least five years from the Effective Date or for such shorter period as may be
specified in a written consent of the Representatives, provided this shall not
prevent the Company from redeeming the Designated Preferred Securities pursuant
to the terms of the Trust Agreement. If the Designated Preferred Securities are
then listed or included and are exchanged for Debentures, the Company will use
its best efforts to have the Debentures promptly listed on the American Stock
Exchange or another national securities exchange or, in lieu thereof, to be
included in the Nasdaq National Market or other organization on which the
Designated Preferred Securities are then listed, and to have the Debentures
promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Option shall
expire or (ii) the day following the Option Closing Date with respect to any
Option Preferred Securities that the Underwriters shall elect to purchase,
except as described in the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, and there will not be any material
change in the financial position, capital stock, or any material increase in
long-term debt, obligations under capital leases or short-term borrowings of the
Offerors and the Subsidiaries on a consolidated basis.
(l) Except as described in the Prospectus and pursuant to a publicly
announced stock repurchase program to purchase shares of Company common stock,
the Offerors shall not, for a period of 180 days after the date hereof, without
the prior written consent of the Representatives, purchase, redeem or call for
redemption, or prepay or give notice of prepayment (or announce any redemption
or call for redemption, or any repayment or notice of prepayment) of the
Offerors' securities, except pursuant to employee benefit plans in accordance
with the publicly disclosed terms thereof.
(m) The Offerors shall not take, directly or indirectly, any action
designed to result in or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of any
security of the Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Offerors will not issue any press release or other
communication directly or indirectly or hold
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any press conference with respect to the Offerors, the Subsidiaries or the
offering of the Designated Preferred Securities without your prior consent.
(o) The Offerors shall inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution of the
Designated Preferred Securities by the Underwriters if either of the Offerors or
any of the Subsidiaries commences engaging in business with the government of
Cuba or with a person or affiliate located in Cuba, with such information to be
provided within 90 days after the commencement thereof or after a change occurs
with respect to previously reported information.
5. Payment of Expenses. Whether or not this Agreement is terminated or
the sale of the Designated Preferred Securities to the Underwriters is
consummated, the Company covenants and agrees that it will pay or cause to be
paid (directly or by reimbursement) all costs and expenses incident to the
performance of the obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements), the certificates for the Designated Preferred Securities and the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(b) all reasonable fees, expenses and disbursements of the Offerors'
counsel and accountants;
(c) all reasonable fees and disbursements of counsel for the
Underwriters in connection with the preparation of the Preliminary and Final
Blue Sky Memoranda and any legal investment surveys and any supplements thereto;
(d) all filing fees and expenses incurred in connection with filings
made with the NASD;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the American Stock Exchange;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
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<PAGE> 22
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture and the Guarantee; and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to the termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, reasonable fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
6. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Preferred Securities and,
following exercise of the Option, the Option Preferred Securities, are subject
to the accuracy of the representations and warranties and to compliance with the
agreements of the Offerors herein as of the date hereof and as of the Closing
Date (or in the case of the Option Preferred Securities, if any, as of the
Option Closing Date), to the accuracy of the written statements of the Offerors
made pursuant to the provisions hereof, to the performance by the Offerors of
their covenants and obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Representatives, shall be contemplated
by the Commission or any state authority. Any request on the part of the
Commission or any state authority for additional information (to be included in
the Registration Statement or Prospectus or otherwise) shall have been disclosed
to you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
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<PAGE> 23
(b) Neither the Registration Statement or any post-effective
amendment thereto, nor the Prospectus or any amendment or supplement thereto,
shall contain an untrue statement of a fact which, in your opinion, is material
or omits to state a fact which, in your opinion, is material and is required to
be stated therein or is necessary to make statements therein (in the case of the
Prospectus or any amendment or supplement thereto, in light of the circumstances
under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Trust Agreement, and
the Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be satisfactory
in all material respects to counsel for the Underwriters, and the Offerors and
the Subsidiaries shall have furnished to such counsel all documents and
information relating thereto that they may reasonably request to enable them to
pass upon such matters.
(d) Jenkens & Gilchrist, a Professional Corporation ("Jenkens &
Gilchrist"), counsel for the Offerors, shall have furnished to you their signed
opinion, dated the Closing Date or the Option Closing Date, as the case may be,
in form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company has been incorporated and is validly
existing and in active status under the laws of the State of
Wisconsin, and is duly registered as a bank holding company under
the BHC Act. Each of the Subsidiaries is validly existing and in
active status or good standing under the laws of its jurisdiction of
incorporation or organization, as the case may be. Each of the
Company and the Subsidiaries has full power and authority to own or
lease its properties and to conduct its business as such business is
described in the Prospectus and is currently conducted in all
material respects. To the best of such counsel's knowledge, all
outstanding shares of capital stock of the Subsidiaries have been
duly authorized and validly issued and are fully paid and
nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 1831o and, to the best of such
counsel's knowledge, except as disclosed in the Prospectus, there
are no outstanding rights, options or warrants to purchase any such
shares or securities convertible into or exchangeable for any such
shares of capital stock of the Subsidiaries;
(ii) The Debentures and Guarantee of the Company and the
equity securities of the Trust conform to the description thereof
contained in the Prospectus in all material respects. The capital
stock of the Company authorized as of September 30, 2000 is as set
forth under the caption "Capitalization" in the Prospectus, and the
shares issued and outstanding as indicated in the opinion have been
duly authorized and validly issued, and are fully paid and
nonassessable. To the best of counsel's knowledge, there are no
outstanding rights, options or warrants to purchase, no other
outstanding securities convertible into or exchangeable for, and no
commitments, plans or arrangements to issue, any shares of capital
stock of the Company or equity securities of the Trust, except as
described in the Prospectus;
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<PAGE> 24
(iii) The issuance, sale and delivery of the Designated
Preferred Securities and Debentures in accordance with the terms and
conditions of this Agreement and the Indenture have been duly
authorized by all necessary actions of the Offerors. All of the
Designated Preferred Securities have been duly and validly
authorized and, when delivered and paid for in accordance with this
Agreement will be duly and validly issued, fully paid and
nonassessable, and will conform to the description thereof in the
Registration Statement, the Prospectus and the Trust Agreement. The
Designated Preferred Securities have been approved for listing on
the American Stock Exchange subject to official notice of issuance.
There are no preemptive or other rights to subscribe for or to
purchase, and other than as disclosed in the Prospectus, no
restrictions upon the voting or transfer of any shares of capital
stock or equity securities of the Offerors pursuant to the corporate
charter, by-laws or other governing documents (including without
limitation, the Trust Agreement) of the Offerors or any of the
Subsidiaries, or, to the best of such counsel's knowledge, any
agreement or other instrument to which either Offeror or any of the
Subsidiaries is a party or by which either Offeror or any of the
Subsidiaries may be bound;
(iv) The Offerors have all requisite corporate and trust
power to enter into and perform their obligations under this
Agreement, and this Agreement has been duly and validly authorized,
executed and delivered by the Offerors and constitutes the legal,
valid and binding obligations of the Offerors enforceable against
the Offerors in accordance with its terms, except as the enforcement
hereof or thereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting creditors'
rights generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain
remedies may not be available in the case of a non-material breach;
(v) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act, has
been duly authorized, executed and delivered by the Company, and is
a valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity;
(vi) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the
benefits of the Indenture and are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of
general principles of equity;
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
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<PAGE> 25
affecting the rights and remedies of creditors generally and of
general principles of equity;
(viii) To the best of such counsel's knowledge, neither
of the Offerors nor any of the Subsidiaries is in breach or
violation of, or default under, with or without notice or lapse of
time or both, its corporate charter or similar governing document
(including without limitation, the Trust Agreement), or is in breach
or violation of any provision of its bylaws which provision is
material to its condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement, and
the Trust Agreement do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the
Offerors or the Subsidiaries or the Designated Preferred Securities
pursuant to, or constitute a material breach or violation of, or
constitute a material default under, with or without notice or lapse
of time or both, any of the terms, provisions or conditions of the
charter, by-laws or governing document (including without
limitation, the Trust Agreement) of the Offerors or the
Subsidiaries, or to the best of such counsel's knowledge, any
material contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease, franchise, license or any other
agreement or instrument to which either Offeror or the Subsidiaries
is a party or by which any of them or any of their respective
properties may be bound or any order, decree, judgment, franchise,
license, material Permit, or rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, known to such counsel having jurisdiction over
the Offerors or the Subsidiaries or any of their respective
properties which, in each case, is material to the Offerors and the
Subsidiaries on a consolidated basis. No authorization, approval,
consent or order of, or filing, registration or qualification with,
any person (including, without limitation, any court, governmental
body or authority) is required under Wisconsin law in connection
with the transactions contemplated by this Agreement in connection
with the purchase and distribution of the Designated Preferred
Securities by the Underwriters;
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right that, if
exercised, would require the Offerors to cause such securities to be
included in the Registration Statement or have waived such right. To
the best of such counsel's knowledge, neither the Offerors nor any
of the Subsidiaries is a party to any agreement or other instrument
which grants rights for or relating to the registration of any
securities of the Offerors;
(x) Except as set forth in the Registration Statement
and the Prospectus, to the best of such counsel's knowledge, (i) no
action, suit or proceeding at law or in equity is pending or
threatened in writing to which any of the Offerors or the
Subsidiaries is or could reasonably be expected to become a party,
and (ii) no action, suit or proceeding is pending or threatened in
writing against or affecting the Offerors or the Subsidiaries or any
of their properties, before or by any court or governmental
official, commission, board or other administrative agency,
authority or
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<PAGE> 26
body, or any arbitrator, wherein an unfavorable decision, ruling or
finding could reasonably be expected to have a material adverse
effect on the consummation of this Agreement or the issuance and
sale of the Designated Preferred Securities as contemplated herein
which is required to be disclosed in the Registration Statement or
the Prospectus and is not so disclosed;
(xi) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus, except such as have been obtained under the 1933 Act,
and the Trust Indenture Act, and except such as may be required
under state securities laws or Interpretations or Rules of the NASD
in connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriters, as to which such counsel
need express no opinion;
(xii) The Registration Statement and the Prospectus and
any amendments or supplements thereto and any documents incorporated
therein by reference (other than the financial statements or other
financial data included therein or omitted therefrom and
Underwriters' Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations as of
their respective dates of effectiveness;
(xiii) To the best of such counsel's knowledge, there
are no contracts, agreements, leases or other documents of a
character required to be disclosed in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
that are not so disclosed or filed;
(xiv) The statements under the captions "Item 1.
Business - Regulation and Supervision," "Item 3. Legal Proceedings."
and the last paragraph of "Item 5. Market for the Registrant's
Common Equity and Related Security Holder Matters," in the Company's
Annual Report on Form 10-K for the year ended December 31, 1999, and
Part II. "Item 1. Legal Proceedings" in the Company's Quarterly
Reports on Form 10-Q for the quarters ended March 31, June 30 and
September 30, 2000 and "Description of the Trust," "Description of
the Preferred Securities," "Description of the Debentures,"
"Book-Entry Issuance," "Description of the Guarantee," "Relationship
Among the Preferred Securities, the Debentures and the Guarantee,"
"Federal Income Tax Consequences," and "ERISA Considerations" in the
Prospectus, insofar as such statements constitute a summary of legal
and regulatory matters, documents or instruments referred to
therein, are accurate descriptions of the matters summarized therein
in all material respects and fairly present the information called
for with respect to such legal matters, documents and instruments,
other than financial and statistical data as to which said counsel
shall not be required to express any opinion or belief;
(xv) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective
under the 1933 Act; any required filing of the Prospectus pursuant
to Rule 424(b) has been made within the time period required
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by Rule 424(b); to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for a stop order are pending or
threatened by the Commission; and
(xvi) Except as described in the Prospectus, to the best
of such counsel's knowledge, there are no contractual encumbrances
or restrictions, or material legal restrictions required to be
described therein on the ability of any of the Subsidiaries (A) to
pay dividends or make any other distributions on its capital stock
or to pay indebtedness owed to the Company, (B) to make any loans or
advances to, or investments in, the Offerors (except as may be
restricted by law or regulation in the context of transactions
between or among affiliated parties) or (C) to transfer any of its
property or assets to the Offerors.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation, certificates as to the
identity of any and all material contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchises, licenses or other
agreements or instruments, and all material permits, easements, consents,
licenses, franchises and government regulatory authorizations, for purposes of
paragraphs (viii), (ix), (xiii) and (xvi) hereof and certificates of public
officials. In giving such opinion, such counsel may rely upon (A) the opinion of
Richards, Layton & Finger, P.A., described herein as to matters of Delaware law,
(B) the opinion of Quarles and Brady LLP as to matters of Wisconsin law and
certain matters regarding the Company and the Subsidiaries, and (C) the opinion
of the Company's general counsel as to certain matters regarding the Company,
and that such reliance is, in the view of such counsel, reasonable under the
circumstances.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and Representatives of the Offerors
and with their independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, Representatives
and accountants and discussed in detail the contents of the Registration
Statement and Prospectus and the documents incorporated therein by reference
(without taking further action to verify independently the statements made in
the Registration Statement and the Prospectus, and without assuming
responsibility for the accuracy or completeness of such statements, except to
the extent expressly provided above) and such counsel has no reason to believe
(A) that the Registration Statement or any amendment thereto (except for the
financial statements and related schedules and statistical data included therein
or omitted therefrom or Underwriters' Information, as to which such counsel need
express no opinion), at the time the Registration Statement or any such
amendment became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (B) that the Prospectus or any amendment or
supplement thereto or the documents incorporated therein by reference (except
for the financial statements and related schedules and statistical data included
therein or omitted therefrom or Underwriters' Information, as to which such
counsel need express no opinion), at the time the Registration Statement became
effective (or, if the term "Prospectus" refers to the prospectus first filed
pursuant to Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus
was issued), at the time any such amended or
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<PAGE> 28
supplemented Prospectus was issued, at the Closing Date and, if applicable, the
Option Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, or (C) that there is any amendment
to the Registration Statement required to be filed that has not already been
filed.
(e) Richards, Layton & Finger, P.A., special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act and, under the Trust Agreement and the Delaware
Business Trust Act, has the trust power and authority to conduct its
business as described in the Prospectus.
(ii) The Trust Agreement is a legal, valid and binding
agreement of the Company, as depositor, and the Trustees, and is
enforceable against the Company, as depositor, and the Trustees, in
accordance with its terms.
(iii) Under the Trust Agreement and the Delaware
Business Trust Act, the execution and delivery of the Underwriting
Agreement by the Trust, and the performance by the Trust of its
obligations thereunder, have been authorized by all requisite trust
action on the part of the Trust.
(iv) The Designated Preferred Securities have been duly
authorized by the Trust Agreement, and when issued and sold in
accordance with the Trust Agreement, the Designated Preferred
Securities will be, subject to the qualifications set forth in
paragraph (v) below, fully paid and nonassessable beneficial
interests in the assets of the Trust and entitled to the benefits of
the Trust Agreement. The form of certificates to evidence the
Designated Preferred Securities has been approved by the Trust and
is in due and proper form and complies with all applicable
requirements of the Delaware Business Trust Act.
(v) Holders of Designated Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to shareholders of
private, for-profit corporations organized under the General
Corporation Law of the State of Delaware. Such opinion may note that
the holders of Designated Preferred Securities may be obligated to
make payments as set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is
not subject to preemptive rights.
(vii) The issuance and sale by the Trust of the
Designated Preferred Securities and the Common Securities, the
execution, delivery and performance by the Trust of this Agreement,
and the consummation of the transactions contemplated by this
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<PAGE> 29
Agreement, do not violate (a) the Trust Agreement, or (b) any
applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the State
of Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(f) Bryan Cave LLP, counsel for the Underwriters, shall have
furnished you their signed opinion, dated the Closing Date or the Option Closing
Date, as the case may be, with respect to the sufficiency of all corporate
procedures and other legal matters relating to this Agreement, the validity of
the Designated Preferred Securities, the Registration Statement, the Prospectus
and such other related matters as you may reasonably request and there shall
have been furnished to such counsel such documents and other information as they
may reasonably request to enable them to pass on such matters. In giving such
opinion, Bryan Cave LLP may rely as to matters of fact upon statements and
certifications of officers of the Offerors and of other appropriate persons and
may rely as to matters of law, other than law of the United States and the State
of Missouri, upon the opinions of Jenkens & Gilchrist, P.C., and Richards,
Layton & Finger, P.A., described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from Smith & Gesteland, LLP a letter, dated the date of this Agreement and the
Closing Date (and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Representatives, confirming that they are
independent public accountants with respect to Company (which shall be inclusive
of its subsidiaries for purposes of this Section 6(g)), within the meaning of
the 1933 Act and the 1933 Act Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company audited by them and included in the
Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations.
(ii) On the basis of the procedures specified by the
American Institute of Certified Public Accountants as described in
SAS No. 71, "Interim Financial Information," inquiries of officials
of the Company responsible for financial and accounting matters, and
such other inquiries and procedures as may be specified in such
letter, which procedures do not constitute an audit in accordance
with U.S. generally accepted auditing standards, nothing came to
their attention that caused them to believe that, if applicable, the
unaudited interim consolidated financial statements of the Company
included in the Registration Statement do not comply as to form in
all material respects with the applicable accounting requirements of
the 1933 Act and 1933 Act Regulations or are not in conformity with
U.S. generally accepted accounting principles
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<PAGE> 30
applied on a basis substantially consistent, except as noted in the
Registration Statement, with the basis for the audited consolidated
financial statements of the Company included in the Registration
Statement.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with U.S. generally accepted
auditing standards, consisting of a reading of the unaudited interim
financial statements and other information referred to below, a
reading of the latest available unaudited condensed consolidated
financial statements of the Company, inspection of the minute books
of the Company since the date of the latest audited financial
statements of the Company included or incorporated by reference in
the Registration Statement, inquiries of officials of the Company
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) as of a specified date not more than five
days prior to the date of such letter, there have been any
changes in the consolidated capital stock of the Company, any
increase in the consolidated debt of the Company, any decreases
in consolidated total assets or shareholders' equity of the
Company, or any changes, decreases or increases in other items
specified by the Representatives, in each case as compared with
amounts shown in the latest unaudited interim consolidated
statement of financial condition of the Company included in the
Registration Statement except in each case for changes,
increases or decreases which the Registration Statement
specifically discloses, have occurred or may occur or which are
described in such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements of the
Company included in the Registration Statement to the specified
date referred to in Clause (iii)(A), there were any decreases in
the consolidated interest income, net interest income, or net
income of the Company or in the per share amount of net income
of the Company, or any changes, decreases or increases in any
other items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases
which the Registration Statement discloses have occurred or may
occur, or which are described in such letter.
(iv) In addition to the audit referred to in their
report included in the Registration Statement and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (ii) and (iii) above, they have
carried out certain specified procedures, not constituting an audit
in accordance with U.S. generally accepted auditing standards, with
respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records and consolidated financial statements of the
Company which appear in the Registration Statement, and have
compared such amounts, percentages and financial information with
the accounting records and the material derived from such
30
<PAGE> 31
records and consolidated financial statements of the Company have
found them to be in agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in Clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in Clause
(iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts shown in the latest unaudited
consolidated statement of financial condition of the Company included in the
Registration Statement, (y) reflect a material adverse change in the items
specified in Clause (iii)(B) above as compared with the corresponding periods of
the prior year or other period specified by the Representatives, or (z) reflect
a material change in items specified in Clause (iv) above from the amounts shown
in the Preliminary Prospectus distributed by the Underwriters in connection with
the offering contemplated hereby or from the amounts shown in the Prospectus.
(h) [Reserved].
(i) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the President and Chief Executive
Officer and the Treasurer of the Company, which certificates shall be deemed to
be made on behalf of the Company dated as of the Closing Date and, if
applicable, the Option Closing Date, evidencing satisfaction of the conditions
of Section 6(a) and stating that (i) the representations and warranties of the
Offerors set forth in Section 2(a) hereof are accurate as of the Closing Date
and, if applicable, the Option Closing Date, and that the Offerors have complied
with all agreements and satisfied all conditions on their part to be performed
or satisfied at or prior to such Closing Date; (ii) since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change in the condition
(financial or otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis; (iii)
since such dates there has not been any material transaction entered into by the
Offerors or the Subsidiaries other than transactions in the ordinary course of
business; and (iv) they have carefully examined the Registration Statement and
the Prospectus as amended or supplemented and nothing has come to their
attention that would lead them to believe that either the Registration Statement
or the Prospectus, or any amendment or supplement thereto as of their respective
effective or issue dates, contained, and the Prospectus as amended or
supplemented at such Closing Date (and, if applicable, the Option Closing Date),
contains any untrue statement of a material fact, or omits to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and (v) covering such other matters as you may reasonably request.
The officers' certificate of the Company shall further state that no stop order
affecting the Registration Statement is in effect or, to their knowledge,
threatened.
(j) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received a certificate of an authorized representative of the
Trust to the effect that to the
31
<PAGE> 32
best of his or her knowledge based upon a reasonable investigation, the
representations and warranties of the Trust in this Agreement are true and
correct as though made on and as of the Closing Date (and, if applicable, the
Option Closing Date); the Trust has complied with all the agreements and
satisfied all the conditions required by this Agreement to be performed or
satisfied by the Trust on or prior to the Closing Date and since the most recent
date as of which information is given in the Prospectus, except as described in
the Prospectus, the Trust has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions not
in the ordinary course of business and there has not been any material adverse
change in the condition (financial or otherwise) of the Trust.
(k) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(l) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the Underwriters'
participation in such offering.
(m) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not
have been fulfilled when and as required by this Agreement, this Agreement and
all of the Underwriters' obligations hereunder may be terminated by you on
notice to the Company at, or at any time before, the Closing Date or the Option
Closing Date, as applicable. Any such termination shall be without liability of
the Underwriters to the Offerors.
7. Indemnification and Contribution.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each of its directors, officers and agents, and each
person, if any, who controls any Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorney fees and expenses), joint or
several, arising out of or based upon: (i) any untrue statement or alleged
untrue statement of a material fact made by the Company or the Trust contained
in the registration statement as originally filed or the Registration Statement,
any Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto; (ii) any omission or alleged omission to state a material fact in the
registration statement as originally filed or the Registration Statement, the
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, required to be stated therein or necessary to make the statements
therein not misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorney fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements made therein, in light of the circumstances under which they were
made, not misleading; or (iii) the enforcement of this indemnification provision
or the contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable
32
<PAGE> 33
legal or other expenses as incurred, but in no event less frequently than 30
days after each invoice is submitted, incurred by them in connection with
investigating or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded;
provided, however, that the Offerors shall not be liable in any such case to the
extent, but only to the extent, that any such losses, claims, damages,
liabilities and expenses arise out of or are based upon any untrue statement or
omission or allegation thereof that has been made therein or omitted therefrom
in reliance upon and in conformity with the Underwriters' Information; provided,
that the indemnification contained in this paragraph with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or of
any person controlling any Underwriter) to the extent any such losses, claims,
damages, liabilities or expenses directly result from the fact that such
Underwriter sold Designated Preferred Securities to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus (as amended or supplemented if any amendments or supplements
thereto shall have been furnished to you in sufficient time to distribute same
with or prior to the written confirmation of the sale involved), if required by
law, and if such loss, claim, damage, liability or expense would not have arisen
but for the failure to give or send such person such document. The foregoing
indemnity agreement is in addition to any liability the Company or the Trust may
otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each Offeror, each of its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls an
Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters' Information. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to any
such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those
33
<PAGE> 34
available to the indemnifying party (in which case, if such indemnified party or
controlling person notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party or such controlling person) it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys at any time and for all such indemnified party and controlling
persons, which firm shall be designated in writing by the indemnified party
(and, if such indemnified parties are Underwriters, by you, as Representatives).
Each indemnified party and each controlling person, as a condition of such
indemnity, shall use reasonable efforts to cooperate with the indemnifying party
in the defense of any such action or claim. The indemnifying party shall not be
liable for any settlement of any such action effected without its written
consent, but if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party and any such controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent
of each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
34
<PAGE> 35
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls an Offeror within
the meaning of the 1933 Act, each officer and trustee of an Offeror who shall
have signed the Registration Statement and each director of an Offeror shall
have the same rights to contribution as the Offerors subject in each case to the
preceding sentence. The obligations of the Offerors under this paragraph (d)
shall be in addition to any liability which the Offerors may otherwise have, and
the obligations of the Underwriters under this paragraph (d) shall be in
addition to any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter (or any person
controlling an Underwriter) or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror), (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. Termination. You shall have the right to terminate this Agreement
at any time by written notice at or prior to the Closing Date or, with respect
to the Underwriters' obligation to
35
<PAGE> 36
purchase the Option Preferred Securities, at any time at or prior to the Option
Closing Date, without liability on the part of the Underwriters to the Offerors,
if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or any of the Material Subsidiaries shall have
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree which in the
judgment of the Representatives materially impairs the investment quality of the
Designated Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(d) There has occurred any outbreak of hostilities or other calamity
or crisis or material change in general economic, political or financial
conditions, or internal conditions, the effect of which on the financial markets
of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Designated Preferred Securities or enforce contracts
for the sale of the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority;
(f) A banking moratorium shall have been declared by either federal
or Wisconsin authorities; or
(g) Any action shall have been taken by any government in respect of
its monetary affairs which, in your reasonable judgment, has a material adverse
effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8,
the Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. Default of Underwriters. If any Underwriter or Underwriters shall
default in its or their obligations to purchase Designated Preferred Securities
hereunder, the other Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Designated Preferred
Securities which such defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that the non-defaulting Underwriters shall be
under no obligation to purchase such Designated Preferred Securities to the
extent that the aggregate number
36
<PAGE> 37
of Designated Preferred Securities to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments with
respect to such non-defaulting Underwriters as set forth in Schedule I hereto,
and provided further, that no non-defaulting Underwriter shall be obligated to
purchase Designated Preferred Securities to the extent that the number of such
Designated Preferred Securities is more than 110% of such Underwriter's
underwriting commitment set forth in Schedule I hereto.
In the event that the non-defaulting Underwriters are not obligated
under the above paragraph to purchase the Designated Preferred Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company do not arrange
for the purchase of any Designated Preferred Securities to which a default
relates as provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are
required hereby or agree to take up all or a part of the Designated Preferred
Securities of a defaulting Underwriter or Underwriters as provided in this
Section 9, (i) you shall have the right to postpone the Closing Date for a
period of not more than five full business days, in order to effect any changes
that, in the opinion of counsel for the Underwriters or the Company, may thereby
be made necessary in the Registration Statement or the Prospectus, or in any
other documents or agreements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus which,
in its opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
10. Effective Date of Agreement. If the Registration Statement is not
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Underwriters when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of execution
of this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial
37
<PAGE> 38
public offering. The Representatives shall notify the Offerors immediately after
they have taken any action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it
may be terminated by the Offerors, by notifying you or by you, as
Representatives of the several Underwriters, by notifying either Offeror, except
that the provisions of Sections 5 and 7 shall at all times be effective.
11. Survival of Representations, Warranties and Agreements. In addition
to the provision of Section 7(e) the representations, warranties, indemnities,
agreements and other statements of the Offerors and their officers and trustees
set forth in or made pursuant to this Agreement and the agreements of the
Underwriters contained in Section 7 hereof shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Offerors or controlling persons of either Offeror, or by or on behalf of the
Underwriters or controlling persons of the Underwriters, and the obligations of
the Company pursuant to Section 5 shall survive delivery of and payment for the
Designated Preferred Securities and shall survive any termination or
cancellation of this Agreement.
12. Notices. Except as otherwise provided in this Agreement, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by registered or
certified mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to either Offeror shall be sent to 217
North Fourth Avenue, P.O. Box 9, Sturgeon Bay, Wisconsin 54235-0009, Attention:
Steven J. Jennerjohn (with a copy to Jenkens & Gilchrist, a Professional
Corporation, 1445 Ross Avenue, Suite 3200, Dallas, Texas 75202-2799, Attention:
Scott J. Luedke, Esq.; and notices to the Underwriters shall be sent to Stifel,
Nicolaus & Company, Incorporated, 501 North Broadway, 9th Floor, St. Louis,
Missouri 63102, Attention: Rick E. Maples; and to Howe Barnes Investments, Inc.,
135 South LaSalle Street, Suite 1500, Chicago, Illinois 60603-4398, Attention:
Daniel E. Coughlin, (with a copy to Bryan Cave LLP, 211 North Broadway, Suite
3600, St. Louis, Missouri 63102, Attention: Harold R. Burroughs, Esq.). In all
dealings with the Company under this Agreement, Stifel, Nicolaus & Company,
Incorporated and Howe Barnes Investments, Inc. shall act jointly as
representatives of and on behalf of the several Underwriters, and the Company
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of the Underwriters, made or given jointly by Stifel,
Nicolaus & Company, Incorporated and Howe Barnes Investments, Inc. on behalf of
the Underwriters, as if the same shall have been made or given in writing by the
Underwriters. No statement, request, notice, agreement or action issued or taken
in connection with the Offering by either Stifel, Nicolaus & Company,
Incorporated or Howe Barnes Investments, Inc., acting alone, without the express
written agreement of the other party, shall be valid and binding against the
other or the several Underwriters.
13. Parties. The Agreement herein set forth is made solely for the
benefit of the Underwriters and the Offerors and, to the extent expressed,
directors, trustees and officers of the Offerors, any person controlling the
Offerors or the Underwriters, and their respective successors and assigns. No
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser, in
his status as such purchaser, from the Underwriters of the Designated Preferred
Securities.
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<PAGE> 39
14. Governing Law. This Agreement shall be governed by the laws of
the State of Missouri, without giving effect to the choice of law or conflicts
of law principles thereof.
15. Counterparts. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
39
<PAGE> 40
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
BAYLAKE CORP.
By:
------------------------------------------
Name: Steven D. Jennerjohn
Title: Treasurer
BAYLAKE CAPITAL TRUST I
By:
------------------------------------------
Name:
-------------------------------------
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of ___________ , 2000
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
For itself and as Representative of the
several Underwriters named in Schedule I
hereto.
HOWE BARNES INVESTMENTS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
For itself and as Representative of the
several Underwriters named in Schedule I
hereto.
<PAGE> 41
SCHEDULE I
Underwriter Number of Preferred Securities
----------- ------------------------------
Stifel, Nicolaus & Company, Incorporated
Howe Barnes Investments, Inc.
Total 1,500,000
=========
<PAGE> 42
EXHIBIT A
LIST OF SIGNIFICANT DIRECT AND
INDIRECT SUBSIDIARIES
Kewaunee County Banc-Shares, Inc.
+Baylake Bank
+*Baylake Investments, Inc.
*Bank of Sturgeon Bay Building Corporation
*Cornerstone Financial, Inc.
*Baylake Insurance Agency, Inc.
*Indicates wholly-owned subsidiary of Baylake Bank
+Indicates Material Subsidiary
