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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 4, 1997
OLD NATIONAL BANCORP
(Exact name of Registrant as specified in its charter)
Indiana 0-10888 35-1439838
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
420 Main Street, Evansville, IN 47708
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(Address of Principal Executive Offices) Zip Code
(812) 464-1434
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(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS
On July 18, 1997, Old National Bancorp (the "Registrant") filed a
registration statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission (File No. 333-29433) with respect to the
Registrant's offering from time to time of up to $150,000,000 aggregate
initial offering price of its Medium-Term Notes Due Nine Months or More from
Date of Issue (the "Notes"). The Registration Statement was declared
effective by the Securities and Exchange Commission on July 23, 1997.
The Notes are being offered on a continuous basis by the Registrant to or
through NatCity Investments, Inc. in accordance with a distribution agreement
between the Registrant and NatCity Investments, Inc. A form of such
distribution agreement was filed as an exhibit to the Registration Statement.
On August 4, 1997, the Registrant and Smith Barney Inc. entered into a
distribution agreement pursuant to which the Notes also are being offered on a
continuous basis by the Registrant to or through Smith Barney Inc. The
distribution agreement between the Registrant and Smith Barney Inc. is set
forth in Exhibit 1 to this Form 8-K.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS
1 Distribution Agreement dated August 4, 1997 by and between the
Registrant and Smith Barney Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Current Report on Form 8-K to be signed on its
behalf by the undersigned hereunto duly authorized.
OLD NATIONAL BANCORP
(Registrant)
Date: August 11, 1997 By: /s/ RONALD B. LANKFORD
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Ronald B. Lankford
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Exhibit 1
OLD NATIONAL BANCORP
Medium-Term Notes
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
August 4, 1997
Smith Barney Inc.
390 Greenwich Street - 4th Floor
New York, New York 10013
Dear Sirs:
Old National Bancorp, an Indiana corporation (the "Company"), confirms
its agreement with Smith Barney Inc. (the "Agent") with respect to the issue
and sale by the Company of its Medium-Term Notes Due Nine Months or More From
Date of Issue (the "Notes"). The Notes are to be issued pursuant to an
Indenture, dated as of July 23, 1997 (as amended, supplemented or modified
from time to time, the "Indenture"), between the Company and Bank One, NA, as
trustee (the "Trustee"). As of the date hereof, the Company has authorized
the issuance and sale of up to $150,000,000 aggregate initial offering price
of Notes to or through the Agent pursuant to the terms of this Agreement. It
is understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Agent pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Distribution Agreement (the "Agreement") provides both for the sale
of Notes by the Company directly to investors (as may from time to time be
agreed to by the Company and the Agent), in which case the Agent will act as
the agent of the Company in soliciting offers for the purchase of the Notes,
and for the sale of Notes by the Company to the Agent as principal for resale
to investors and other purchasers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-29433) and
pre-effective amendment No. 1 thereto for the registration of debt securities
of the Company under the Securities Act of 1933, as amended (the "1933 Act"),
and the offering thereof from time to time in accordance with Rule 430A or
Rule 415 of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations"), and the Company has filed or will file such
post-effective amendments thereto as may be required prior to any acceptance
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by the Company of an offer for the purchase of Notes. Such registration
statement (as so amended) has been declared effective by the Commission and
the Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). Such registration statement, as so amended (and
any further registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) is referred
to herein as the "Registration Statement"; and the final prospectus, dated
July 23, 1997, constituting a part of the Registration Statement, and all
applicable amendments or supplements thereto in which the Agent is named as
the agent of the Company (including the final prospectus supplement and
pricing supplement in which the Agent is named as the agent of the Company
relating to the offering of Notes), in the form first furnished to the Agent,
are collectively referred to herein as the "Prospectus" (except that if any
revised prospectus shall be provided to the Agent by the Company for use in
connection with the offering of the Notes, the term "Prospectus" shall refer
to such revised prospectus from and after the time it is first provided to the
Agent); provided, however, that all references to the "Registration Statement"
and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"); provided, further, that if the Company
files a registration statement with the Commission pursuant to Rule 462(b) of
the 1933 Act Regulations (a "Rule 462(b) Registration Statement"), then, after
such filing, all references to the "Registration Statement" shall also be
deemed to include the Rule 462(b) Registration Statement. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
registration statement became effective and any prospectus furnished by the
Company after the registration statement became effective and before any
acceptance by the Company of an offer for the purchase of Notes which omitted
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations. For purposes
of this Agreement, all references to the Registration Statement, Prospectus or
preliminary prospectus or to any amendment or supplement thereto shall be
deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
SECTION 1. Appointment as Agent.
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(a) Appointment. Subject to the terms and conditions stated herein
and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf, the Company hereby appoints the Agent as the agent
of the Company for purpose of soliciting purchases of the Notes from the
Company by others.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agent shall have no responsibility for maintaining records
with respect to the aggregate initial offering price of Notes sold, or of
otherwise monitoring the availability of Notes for sale, under the Registration
Statement.
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(c) Solicitations as Agent. Unless otherwise agreed upon by the
Agent and the Company, the Agent, acting solely as agent for the Company and
not as principal, will solicit offers for the purchase of the Notes. The
Agent will communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes solicited by it on an agency basis, other than those
offers rejected by the Agent. The Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, in
whole or in part, and any such rejection shall not be deemed a breach of its
agreement contained herein. The Company may, in its discretion, accept or
reject any proposed purchase of Notes, in whole or in part. The Agent shall
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by it on an agency
basis and accepted by the Company. The Agent shall not have any liability to
the Company in the event that any such purchase is not consummated for any
reason. If the Company shall default on its obligation to deliver Notes to a
purchaser whose offer has been solicited by the Agent on an agency basis and
accepted by the Company, the Company shall (i) hold the Agent harmless against
any loss, claim or damage arising from or as a result of such default by the
Company and (ii) pay to the Agent any commission to which it would otherwise
be entitled absent such default.
(d) Purchases as Principal. The Agent shall not have any obligation
to purchase Notes from the Company as principal. However, the Agent may agree
from time to time to purchase Notes from the Company as principal for resale
to investors and other purchasers determined by the Agent. Absent such
agreement, the Agent shall be deemed to be acting solely as the agent for the
Company in connection with any offering of Notes by the Company through the
Agent. Any purchase of Notes from the Company by the Agent as principal shall
be made in accordance with Section 3(b) hereof.
(e) Reliance. The Company and the Agent agree that any Notes
purchased by the Agent as principal shall be purchased, and any Notes the
placement of which the Agent arranges as the agent of the Company shall be
placed by the Agent, in reliance on the representations, warranties, covenants
and agreements of the Company contained herein and on the terms and conditions
and in the manner provided herein.
SECTION 2. Representations and Warranties by the Company.
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The Company represents and warrants to the Agent, as of the date hereof,
as of the date of each acceptance by the Company of an offer for the purchase
of Notes (whether to the Agent as principal or through the Agent as agent), as
of the date of each delivery of Notes (whether to the Agent as principal or
through the Agent as agent) (the date of each such delivery to the Agent as
principal is referred to herein as a "Settlement Date"), and as of any time
that the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rate or formula applicable to the Notes or similar
changes) (each of the times referenced above is referred to herein as a
"Representation Date"), as follows:
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(a) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission or the state securities authority of any jurisdiction, and
any request on the part of the Commission for additional information has been
complied with. No order preventing or suspending the use of the Prospectus
has been issued and no proceeding for that purpose has been instituted or, to
the knowledge of the Company, threatened by the Commission or the state
securities authority of any jurisdiction. In addition, the Indenture has been
duly qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including
the filing of the most recent Annual Report on Form 10-K of the Company with
the Commission) became effective and at each Representation Date, the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations") and 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 date of the Prospectus and at each Representation Date,
the Prospectus and any amendments and supplements thereto did not and will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Company
elects to rely upon Rule 434 of the 1933 Act Regulations, the Company will
comply with the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Company in
writing by the Agent expressly for use in the Registration Statement or the
Prospectus or to that part of the Registration Statement which constitutes the
Trustees' Statement of Eligibility under the 1939 Act (the "Form T-1").
Each preliminary prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act and the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the Prospectus
delivered to the Agent for use in connection with the offering of the Notes
will, at the time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection with
the offering and sale of the Notes, the Company has complied or will comply
with the requirements of Rule 111 under the 1933 Act Regulations relating to
the payment of filing fees thereof.
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(b) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date hereof, at the date of the Prospectus, and at each
Representation Date, or during the period in which a prospectus is required to
be delivered, did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the Agent
expressly for use in the Registration Statement or the Prospectus or to that
part of the Registration Statement which constitutes the Form T-1.
(c) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement and the Prospectus are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(d) Financial Statements. The financial statements included, or
incorporated by reference, in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the financial
position of the Company and its subsidiaries at the respective dates indicated
and the consolidated statement of income, shareholders' equity and cash flows
of the Company and its subsidiaries for the periods specified. Such financial
statements have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included, or incorporated by
reference, in the Registration Statement and the Prospectus present fairly, in
accordance with GAAP, the information required to be stated therein. The
selected financial data, the summary financial information and other financial
information and data included, or incorporated by reference, in the Prospectus
present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included, or
incorporated by reference, in the Registration Statement and the Prospectus.
In addition, any pro forma financial information and the related notes thereto
included, or incorporated by reference, in the Registration Statement and the
Prospectus present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines and the guidelines of
the American Institute of Certified Public Accountants ("AICPA") with respect
to pro forma information and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. All historical
financial statements and information and all pro forma financial statements
and information required by the 1933 Act, the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations are included, or incorporated by reference,
in the Registration Statement and the Prospectus.
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(e) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (i) there has been no material
adverse change in the financial condition or in the earnings, assets or
business of the Company or any of its subsidiaries, whether or not arising in
the ordinary course of business, which would be material to the Company and
its subsidiaries on a consolidated basis (anything which would be material to
the Company and its subsidiaries on a consolidated basis, being hereinafter
referred to as "Material"; and such a material adverse change, a "Material
Adverse Effect"), (ii) no casualty loss or condemnation or other adverse event
with respect to the properties of the Company or any of its subsidiaries has
occurred which would have a Material Adverse Effect, (iii) there have been no
transactions or acquisitions entered into by the Company or any of its
subsidiaries which would be Material, (iv) except for regular quarterly
distributions on shares of the Company's Common Stock, without par value (the
"Common Stock"), and stock dividends relating to the Common Stock, there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock, (v) with the exception of (A)
transactions in connection with the Company's Stock Purchase and Discounted
Dividend Reinvestment Plan, (B) stock dividends or stock splits relating to
the Common Stock, (C) purchases or redemptions by the Company of shares of
Common Stock, and (D) issuance of Common Stock by the Company in connection
with any acquisition by the Company of a Subsidiary (as defined in the
Indenture) that is not required to be reported on Form 8-K (whether pursuant
to Item 2 or Item 5 thereof), there has been no change in the capital stock of
the Company which would be Material and (vi) there has been no increase in the
outstanding indebtedness for borrowed money of the Company or any of its
subsidiaries which would be Material.
(f) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus or
the documents incorporated by reference therein or to be filed as exhibits
thereof which have not been so described and/or filed as required and the
descriptions thereof or references thereto are correct in all material
respects and no Material defaults exist in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
such contract or document except as described in the Registration Statement,
the Prospectus or the documents incorporated by reference therein.
(g) Organization of the Company. The Company has been duly organized
and is validly existing as a corporation under the laws of the State of
Indiana and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under this
Agreement. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
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(h) Capitalization. The authorized, issued and outstanding shares of
capital stock of the Company are as set forth or incorporated by reference in
the Prospectus. All the issued and outstanding shares of Common Stock have
been duly authorized and are validly issued, fully paid and non-assessable and
have been offered and sold or exchanged in compliance with all applicable laws
(including, without limitation, federal and state securities laws). No such
shares were issued in violation of preemptive or other similar rights arising
by operation of law, under the Company's Articles of Incorporation or By-Laws,
or under any agreement to which the Company is or, at the time of such
issuance was, a party. Except for the Company's 8% Convertible Subordinated
Debentures due September 15, 2012, the rights issued pursuant to the Company's
Shareholder Rights Plan and options to purchase shares of Common Stock held by
certain executive officers of DuBois County Bank and Workingmens/ONB Bank,
there are no outstanding securities convertible into or exchangeable for any
shares of capital stock of the Company and no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for shares
of capital stock of the Company.
(i) Subsidiaries. Each of the Company's subsidiaries has been duly
organized and is validly existing and in good standing under the laws of the
state of its jurisdiction of organization (or, with respect to each of the
Company's subsidiaries that is a national bank, under federal law), with the
requisite power and authority to own, lease and operate its properties, and to
conduct the business in which it is engaged or proposes to engage as described
in the Prospectus. Each such entity is duly qualified or registered as a
foreign corporation or other entity, as the case may be, to transact business
and is in good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
register would not have a Material Adverse Effect. All of the issued and
outstanding capital stock of each of the Company's subsidiaries has been duly
authorized and validly issued and is fully paid and non-assessable, has been
offered, sold or exchanged in compliance with all applicable laws (including
without limitation, federal or state securities laws) and are owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (collectively, "Liens"). No shares of capital
stock or other equity interests of any Significant Subsidiary (as defined in
the Indenture) of the Company are reserved for any purpose, and there are no
outstanding securities convertible into or exchangeable for any capital stock
or other equity interests of such entities and no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for shares
of such capital stock or any other securities of such entities, except as
disclosed in the Prospectus.
(j) Authorization of the Notes. The Notes have been duly authorized
by all necessary action on the part of the Company, and, when the variable
terms of the Notes have been established by the authorized committee or
officers of the Company to whom such authority has been delegated and the
Notes have been executed and authenticated in the manner provided for in the
Indenture and delivered by the Company pursuant to this Agreement and any
applicable Pricing Supplement (as hereinafter defined) against payment of the
consideration therefor, (i) the Notes will constitute valid and legally
binding obligations of
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the Company, enforceable against the Company in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and (ii) each registered
holder of Notes will be entitled to the benefits of the Indenture. The Notes
are or will be in the form contemplated by the Indenture. The Notes, when
issued, rank and will rank on a parity with all unsecured indebtedness (other
than subordinated indebtedness) of the Company that is outstanding on a
Representation Date or that may be incurred thereafter and senior to all
subordinated indebtedness that is outstanding on a Representation Date or that
may be incurred thereafter.
(k) Authorization of the Indenture. The Indenture has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The Indenture has been duly qualified under the 1939 Act and
conforms, in all material respects, to the descriptions thereof contained in
the Prospectus.
(l) Descriptions of the Notes. The Indenture and the Notes, as of
the date of the Prospectus, conform, and when issued and delivered in
accordance with the terms of this Agreement, the Indenture and the applicable
Pricing Supplement will conform, in all material respects to the statements
relating thereto contained in the Prospectus and will be in substantially the
form filed or incorporated by reference, as the case may be, as an exhibit to
the Registration Statement and will comply with all applicable legal
requirements.
(m) Investment Grade Rating. The Notes will have an investment
grade rating from one or more nationally recognized statistical rating
organizations at each applicable Representation Date. Further, the
Medium-Term Note Program under which the Notes are issued (the "Program"), as
well as the Notes, are rated Baa1 by Moody's Investors Service, Inc.
("Moody's") and A-minus/A-2 by Standard & Poor's Ratings Service ("S&P"), or
such other ratings as to which the Company shall have most recently notified
the Agent pursuant to Section 4(a) hereof.
(n) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(o) Absence of Defaults and Conflicts. None of the Company or any of
its subsidiaries is in violation of the provisions of its charter, by-laws or
other organizational document, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which it is a party
or by which it is bound, or to which any of its properties or assets are
subject
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(collectively, "Agreements and Instruments"), except for such violations or
defaults that would not result in a Material Adverse Effect. The execution,
delivery and performance of this Agreement, the Indenture, the Notes and any
other agreement or instrument entered into or issued, or to be entered into or
issued, by the Company in connection with the transactions contemplated hereby
or thereby, and the consummation of the transactions contemplated hereby and
thereby (including the issuance and sale of the Notes and the use of the
proceeds from the sale of the Notes as described in the Prospectus under the
caption "Use of Proceeds"), and compliance by the Company with its obligations
hereunder and thereunder, do not and will not, with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any assets, properties
or operations of the Company or any of its subsidiaries pursuant to, any
Agreements and Instruments, except for such conflicts, breaches, defaults,
Repayment Events or liens, charges or encumbrances that would not result in a
Material Adverse Effect, nor will such action result in any violation of the
provisions of the Articles of Incorporation or By-Laws of the Company or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations, except for such violations that would
not have a Material Adverse Effect. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a material
portion of such indebtedness by the Company or any of its subsidiaries.
(p) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification
or decree of, any court or governmental authority or agency or any other
entity or person is necessary or required for the performance by the Company
of its obligations under this Agreement or the Indenture or in connection with
the transactions contemplated under this Agreement or the Indenture, except
such as have been already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws or under the by-laws and
rules of the National Association of Securities Dealers, Inc. (the "NASD").
(q) Absence of Proceedings. There is no action, suit, proceeding or
investigation before or by any court or governmental agency or body, domestic
or foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries, or any of their
respective officers or directors, which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated or
incorporated by reference therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the assets, properties or operations thereof
or the consummation of the transactions contemplated by this Agreement or the
Indenture. The aggregate of all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any of
their respective assets, properties or operations is the subject which are not
described in the Registration
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Statement and the Prospectus, including ordinary routine litigation incidental
to their business, could not reasonably be expected to result in a Material
Adverse Effect.
(r) Possession of Licenses and Permits. The Company and each of its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them except for such
Governmental Licenses, the failure to obtain would not, singly or in the
aggregate, result in a Material Adverse Effect. The Company and each of its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, result in a Material Adverse Effect. All of the
Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(s) Title to Property. The Company and its subsidiaries have good
and marketable title to all property and other assets owned by them free and
clear of Liens, except (i) as otherwise stated in the Registration Statement
and the Prospectus, or (ii) those which do not, singly or in the aggregate,
Materially (x) affect the value of such property or (y) interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries. All leases and subleases under which the Company or any of its
subsidiaries holds properties are in full force and effect, except for such
which would not have a Material Adverse Effect.
(t) Investment Company Act. The Company is not, and upon the
issuance and sale of the Notes as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(u) Officers' Certificates. Any certificate signed by an officer of the
Company or any authorized representative of the Company and delivered to the
Agent or to counsel for the Agent in connection with an offering of the Notes
shall be deemed a representation and warranty by the Company to the Agent as
to the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
SECTION 3. Solicitations as Agent; Purchases as Principal.
----------------------------------------------
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Company and the Agent, the Agent, as the agent
of the Company, will use its reasonable efforts to solicit offers to purchase
the Notes upon the terms and conditions set forth herein
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and in the Prospectus. The Agent is not authorized to appoint sub-agents with
respect to Notes sold through it as agent. All Notes sold through the Agent
as agent will be sold at 100% of their principal amount unless otherwise
agreed to by the Company and the Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes through the Agent, as the agent
of the Company, commencing at any time for any period of time. As soon as
practicable after receipt of instructions from the Company, the Agent will
suspend solicitation of offers to purchase the Notes from the Company until
such time as the Company has advised the Agent that such solicitation may be
resumed.
The Company agrees to pay the Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by the Agent as
set forth in Schedule A hereto.
(b) Purchases as Principal. Notes purchased from the Company by the
Agent, individually or in a syndicate, as principal shall be made in
accordance with terms agreed upon between the Agent and the Company (which
terms, unless otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto and be agreed upon orally, with written
confirmation prepared by the Agent and delivered to the Company). The Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Unless the context otherwise requires, references herein to "this Agreement"
shall include the applicable agreement of the Agent to purchase Notes from the
Company as principal. Each purchase of Notes, unless otherwise agreed, shall
be at a discount from the principal amount of each such Note equivalent to the
applicable commission set forth in Schedule A hereto. The Agent may engage
the services of any other broker or dealer in connection with the resale of
the Notes purchased by it as principal and may allow all or any portion of the
discount received from the Company in connection with such purchases to such
brokers and dealers. At the time of each purchase of Notes from the Company
by the Agent as principal, the Agent shall specify the requirements for the
stand-off agreement, officers' certificate, opinions of counsel and comfort
letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d) hereof.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified
in Exhibit A hereto shall be agreed upon by the Company and the Agent and
specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared in connection with each sale of Notes. Except as
may be otherwise specified in the applicable Pricing Supplement, the Notes
will be issued in denominations of U.S. $1,000 or any larger amount that is an
integral multiple of U.S. $1,000. Administrative procedures with respect to
the issuance and sale of Notes shall be agreed upon from time to time by the
Company, the Agent and the Trustee (the "Procedures"). The Agent and the
Company agree to perform, and the Company agrees to cause the Trustee to agree
to perform, their respective duties and obligations specifically provided to
be performed by them in the Procedures.
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(d) Sales Directly to Third Parties. The Company shall have the
right, in its discretion, to sell Notes directly on its own behalf to any
third party. No commission, fee or other compensation shall be paid to the
Agent for any such sale of Notes directly by the Company.
SECTION 4. Covenants of the Company.
------------------------
The Company covenants with the Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agent
immediately, and confirm such notice in writing, of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any amendment or supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus (other than any document as to which notice has
been given by the Company pursuant to Section 4(b) hereof), (iii) the receipt
of any comments from the Commission with respect to the Registration Statement
or the Prospectus, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose, and (vi) any change in the rating
assigned by any nationally recognized statistical rating organization to the
Program or any debt securities of the Company or the public announcement by
any nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any debt securities of the Company, or the withdrawal by any
nationally recognized statistical rating organization of its rating of the
Program or any such debt securities. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible time.
(b) Notice of Certain Proposed Filings. The Company will give the
Agent advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes,
any amendment to the Registration Statement (including any filing under Rule
462(b) of the 1933 Act Regulations) or any amendment or supplement to the
Prospectus whether by filing of documents pursuant to the 1934 Act or the 1933
Act or otherwise, and will furnish the Agent copies of any such amendment or
supplement or other documents proposed to be filed or used a reasonable time
in advance of such proposed filing or use, as the case may be.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agent and to counsel for the Agent, without
charge, as many signed and conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by
reference in the Prospectus) as the Agent or counsel to the Agent reasonably
request. The Company will furnish to the Agent and to counsel for the Agent,
without charge, as many copies of the Prospectus (as amended or supplemented)
as the Agent or
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<PAGE>
counsel to the Agent reasonably request so long as the Agent is required to
deliver a Prospectus in connection with sales or solicitations of offers to
purchase the Notes. The Registration Statement and each amendment thereto and
the Prospectus and any amendments or supplements thereto furnished to the
Agent or counsel to the Agent will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) Preparation of Pricing Supplements. The Company will prepare a
Pricing Supplement with respect to any Notes to be sold to or through the
Agent pursuant to this Agreement, in a form previously approved by the Agent.
The Company will deliver such Pricing Supplement no later than 11:00 A.M., New
York City time, on the business day following the date of the Company's
acceptance of the offer for the purchase of such Notes and will file such
Pricing Supplement pursuant to Rule 424(b)(2) under the 1933 Act not later
than the close of business of the Commission on the second business day after
the date on which such Pricing Supplement is first used.
(e) Revisions of Prospectus - Material Changes. Except as otherwise
provided in Section 4(l) hereof, if at any time during the term of this
Agreement any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Agent or counsel for the Company,
to amend or supplement the Prospectus in order that the Prospectus not contain
an untrue statement of a material fact or not omit to state any material fact
necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such counsel,
to amend the Registration Statement in order that the Registration Statement
not contain an untrue statement of a material fact or not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or if it shall be necessary, in the opinion
of either such counsel, to amend or supplement the Registration Statement or
the Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company shall give immediate notice, confirmed in
writing, to the Agent to cease the solicitation of offers to purchase the
Notes in its capacity as Agent and to cease sales of any Notes the Agent may
then own as principal, and the Company will promptly prepare and file such
amendment to the Registration Statement or supplement to the Prospectus,
subject to Section 4(b) hereof, whether by filing documents pursuant to the
1934 Act or the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements and the Company will furnish to the
Agent and counsel for the Agent, without charge, such number of copies of such
amendment or supplement as the Agent and counsel for the Agent may reasonably
request. In addition, the Company will comply with the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of each offering of Notes.
(f) Prospectus Revisions - Periodic Financial Information. Except as
otherwise provided in Section 4(l) hereof, on or prior to the date on which
there shall be released to the general public interim financial statement
information related to the Company with respect to
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<PAGE>
each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company shall
furnish such information to the Agent, confirmed in writing, and shall cause
the Prospectus to be amended or supplemented to include or incorporate by
reference financial information with respect thereto and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for an
understanding thereof or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(g) Prospectus Revisions - Audited Financial Information. Except as
otherwise provided in Section 4(l) hereof, on or prior to the date on which
there shall be released to the general public financial information included
in or derived from the audited financial statements of the Company for the
preceding fiscal year, the Company shall furnish such information to the
Agent, confirmed in writing, and shall cause the Registration Statement and
the Prospectus to be amended or supplemented, as the case may be, whether by
the filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise,
to include or incorporate by reference such audited financial statements and
the report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with respect
thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will make generally available
to its security holders as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph
of Section 11(a) of the 1933 Act (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering each twelve month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of
the Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Agent, to qualify the Notes for offering and sale
under the applicable securities laws of such states and other jurisdictions of
the United States as the Agent may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution
of the Notes; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The Company
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise the Agent of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(j) Reporting Requirements. During the term of this Agreement, the
Company will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or
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15 of the 1934 Act within the time periods prescribed by the 1934 Act and the
1934 Act Regulations.
(k) Stand-Off Agreement. If required pursuant to the terms of any
agreement entered into between the Agent acting as principal and the Company,
between the date of the agreement to purchase such Notes from the Company and
the Settlement Date with respect to such purchase, the Company will not,
without the prior written consent of the Agent, offer or sell, issue, grant
any option for the sale of, or enter into any agreement to sell, or otherwise
dispose of, any debt securities of the Company (other than the Notes that are
to be sold pursuant to such agreement and commercial paper in the ordinary
course of business). This agreement of the Company shall herein be referred
to as the "Stand-Off Agreement."
(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsection (e), (f) or (g) of this
Section during any period from the time (i) the Agent shall have suspended
solicitation of offers to purchase the Notes in its capacity as Agent pursuant
to a request from the Company and (ii) the Agent shall not then hold any Notes
purchased as principal pursuant hereto, until the time the Company shall
determine that solicitation of offers to purchase the Notes should be resumed
or the Agent shall subsequently purchase Notes from the Company as principal.
(m) Use of Proceeds. The Company will use the net proceeds received
by it from the issuance and sale of the Notes in the manner specified in the
Prospectus.
(n) Ratings. The Company will take all reasonable action necessary
to enable one or more of S&P, Moody's or any other nationally recognized
statistical rating organization selected by the Agent to provide their
respective credit ratings of the Program as specified in Section (2)(m)
hereof.
SECTION 5. Conditions of Agent's Obligations.
---------------------------------
The obligations of the Agent to solicit offers to purchase the Notes as
the Agent of the Company and to purchase Notes as principal, and the
obligations of any purchasers of the Notes sold through the Agent as agent,
will be subject to the accuracy of the representations and warranties of the
Company herein contained and to the accuracy of the statements of the officers
of the Company made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all its covenants,
agreements and other obligations herein contained and to the following
additional conditions precedent:
(a) Effectiveness of Registration Statement. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act; no
proceedings for that purpose shall have been instituted or shall be pending or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Agent; and no state securities authority of any
jurisdiction shall have suspended the
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qualification or registration of the Notes for offering or sale in such
jurisdiction and no proceedings for that purpose shall have been instituted or
shall be pending or threatened.
(b) Legal Opinions. On the date hereof, the Agent shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to counsel for the Agent:
(i) Opinion of Counsel for the Company. On the date hereof,
the Agent shall have received the favorable opinion, dated as of the date
hereof, of Krieg DeVault Alexander & Capehart, counsel for the Company,
to the effect set forth in Exhibit B hereto, and otherwise in form and
substance acceptable to the Agent.
(ii) Opinion of Counsel for the Agent. On the date hereof,
the Agent shall have received the favorable opinion, dated as of the date
hereof, of Baker & Daniels, counsel for the Agent, with respect to the
incorporation of the Company, the validity of the Notes, the Registration
Statement, the Prospectus and such other related matters as the Agent may
reasonably request.
(c) Officer's Certificate. On the date hereof, the Agent shall have
received a certificate of the Chairman or President and the Chief Financial
Officer of the Company, dated as of the date hereof, to the effect that (i)
since the respective dates as of which information is given in the Prospectus
or since the date of any agreement by the Agent to purchase Notes as
principal, or since the date of any applicable Pricing Supplement there has
not been any material adverse change in the financial condition, or in the
earnings, assets or business of the Company and its subsidiaries on a
consolidated basis, whether or not arising in the ordinary course of business,
(ii) the representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made at and as of the date of such certificate, (iii) the Company has
performed or complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such certificate,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to the best of such officer's knowledge, are
threatened by the Commission. As used in this Section 5(c), the term
"Prospectus" means the Prospectus in the form first provided to the Agent for
use in confirming sales of the Notes.
(d) Comfort Letter of Arthur Andersen LLP. On the date hereof, and
on each Settlement Date (but, in any event, not more frequently than once
during each fiscal quarter of the Company unless otherwise required pursuant
to clause (i) or clause (ii) of Section 7(d) hereof), the Agent shall have
received (unless the Agent shall otherwise specify) a letter from Arthur
Andersen LLP, dated as of the date hereof or the applicable Settlement Date,
as the case may be, and in form and substance reasonably satisfactory to the
Agent, to the effect set forth in Exhibit C hereto.
(e) Ratings. At the Settlement Date and at any relevant
Representation Date, the Notes shall have at least the ratings as specified in
Section (2)(m). Since the time of
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acceptance by the Company of any offer to purchase a Note, there shall not
have occurred a downgrading in the rating assigned to the Program or any other
debt securities of the Company by any such rating organization, and no such
rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of the
Program or the Company's other debt securities.
(f) Additional Documents. On the date hereof and on each Settlement
Date, counsel to the Agent shall have been furnished with such documents and
opinions as such counsel may reasonably require for the purpose of enabling
such counsel to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agent and to
counsel to the Agent.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Agent by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive the delivery set forth in Section 11
hereof, the provisions relating to governing law set forth in Section 15 and
the provisions relating to parties set forth in Section 14 hereof shall remain
in effect.
SECTION 6. Delivery of and Payment for Notes Sold Through the Agent.
--------------------------------------------------------
Delivery of Notes sold through the Agent as agent shall be made by the
Company to the Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
such Note to the Company and, if the Agent has theretofore paid the Company
for such Note, the Company will promptly return such funds to the Agent. If
such failure occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will reimburse the Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company further covenants and agrees with the Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance
by the Company of an offer for the purchase of Notes (whether to the Agent as
principal or through the Agent as agent), and each delivery of Notes (whether
to the Agent as principal or through the Agent as agent), shall be deemed to
be an affirmation that the representations and
17
<PAGE>
warranties of the Company contained in this Agreement and in any certificate
theretofore delivered to the Agent pursuant hereto are true and correct at the
time of such acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at the time of
delivery to the Agent or to the purchaser or its agent, as the case may be, of
the Notes relating to such acceptance or sale, as the case may be, as though
made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by a Pricing Supplement or an amendment or supplement providing
solely for a change in the interest rate or formula applicable to the Notes or
similar changes, and other than by an amendment or supplement which relates
exclusively to the issuance of securities other than the Notes), (ii) there is
filed with the Commission any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K, unless the Agent shall
otherwise specify), (iii) (if required in connection with the purchase of
Notes by the Agent as principal) the Company sells Notes to the Agent as
principal or (iv) the Company issues and sells Notes in a form not previously
certified to the Agent by the Company, the Company shall (unless the Agent
shall otherwise specify) furnish or cause to be furnished to the Agent
forthwith a certificate dated the date of filing with the Commission of such
supplement or document, the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form satisfactory to the Agent to
the effect that the statements contained in the certificate referred to in
Section 5(c) hereof which were last furnished to the Agent are true and
correct at the time of such amendment, supplement, filing or sale, as the case
may be, as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in Section 5(c)
hereof, modified as necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
certificate (it being understood that, in the case of clause (iii) above, any
such certificate shall also include a certification that there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as a whole since the date of the agreement by the
Agent to purchase Notes from the Company as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by a Pricing Supplement or an amendment or supplement providing
solely for a change in the interest rate or formula applicable to the Notes or
similar changes or solely for the inclusion of additional financial
information, and other than by an amendment or supplement which relates
exclusively to the issuance of securities other than the Notes), (ii) there is
filed with the Commission any document incorporated by reference into the
Prospectus (other than any Current Report on form 8-K, unless the Agent shall
otherwise specify), (iii) (if required in connection with the purchase of
Notes by the Agent as principal) the Company sells Notes to
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<PAGE>
the Agent as principal, or (iv) the Company issues and sells Notes in a form
not previously certified to the Agent by the Company, the Company shall
(unless the Agent shall otherwise specify) furnish or cause to be furnished
forthwith to the Agent and to counsel to the Agent the written opinion Krieg
DeVault Alexander & Capehart, counsel for the Company, dated the date of
filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form and substance satisfactory to the Agent, of the same tenor as the
opinions referred to in Exhibit B hereof, but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinions or, in lieu of such
opinions, counsel last furnishing such opinions to the Agent shall furnish the
Agent with a letter substantially to the effect that the Agent may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement which relates exclusively to the issuance of securities other than
the Notes), (ii) there is filed with the Commission any document incorporated
by reference into the Prospectus which contains additional financial
information (other than any Current Report on Form 8-K relating exclusively to
supplemental information or earnings releases, each in connection with
quarterly or annual financial results of the Company or either of the
Company), or (iii) (if required in connection with the purchase of Notes by
the Agent as principal) the Company sells Notes to the Agent as principal, the
Company shall (unless the Agent shall otherwise specify) cause Arthur Andersen
LLP forthwith to furnish to the Agent a letter, dated the date of
effectiveness of such amendment, supplement or document with the Commission,
or the date of such sale, as the case may be, in form satisfactory to the
Agent, of the same tenor as the letter referred to in Section 5(d) hereof but
modified to relate to the Registration Statement and Prospectus as amended and
supplemented to the date of such letter, and with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company or the Company.
(e) Exception to Certain Requirements of Section 7. Notwithstanding
anything else contained herein to the contrary, the Company shall not be
required to furnish, or to cause to be furnished, the certificates, legal
opinions and comfort letters contemplated by Sections 7(b)(ii), 7(c)(ii) or
7(d)(ii) hereof so long as the Agent is not, at the time that such
certificates, legal opinions or comfort letters are required to be delivered,
(i) soliciting offers to purchase Notes in its capacity as Agent hereunder or
(ii) holding any Notes purchased as principal pursuant hereto; provided,
however, that the Agent shall not be required to solicit offers to purchase
Notes hereunder or to purchase or hold Notes as principal pursuant hereto
until the Company shall have provided the Agent with the certificates, legal
opinions
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and comfort letters required by Sections 7(b), 7(c) and 7(d) hereof; and
provided further, that the Company shall, in any event, furnish or cause to
be furnished such certificates, legal opinions and comfort letters upon the
filing with the Commission of each Annual Report on Form 10-K of the Company.
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agent. The Company agrees to indemnify
and hold harmless the Agent and each person, if any, who controls the Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information filed
with the Commission pursuant to Rule 430A or Rule 434 of the 1933 Act
Regulations (the "Rule 430A Information and the Rule 434 Information")
deemed to be a part thereof, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
an untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading:
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever which, in each such case, is based upon any such untrue
statement or omission, or any such alleged untrue statement or omission;
provided, that (subject to Section 8(d) below) any such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Agent,
which counsel shall be reasonably acceptable to Company), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever which, in each such
case, is based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
the Agent expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
20
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Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Company, Directors and Officers. The
Agent agrees to indemnify and hold harmless the Company, each of the Company's
directors, each of the Company's officers who signed the Registration
Statement (or signs any amendment thereto), and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Agent expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 8(a) above, counsel to the indemnified parties shall be selected by
the Agent and shall be reasonably acceptable to the Company, and, in the case
of parties indemnified pursuant to Section 8(b) hereof, counsel to the
indemnified parties shall be selected by the Company and shall be reasonably
acceptable to the Agent. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or Section 9 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
21
<PAGE>
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel in accordance
with the provisions hereof, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 8(a)(ii)
effected without its written consent if (i) such settlement is entered into in
good faith by the indemnified party more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
SECTION 9. Contribution.
------------
If the indemnification provided for in Section 8 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and
the Agent, on the other hand, from the offering of the Notes that were the
subject of the claim for indemnification or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and the
Agent, on the other hand, in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Agent, on the other hand, in connection with the offering of the Notes that
were the subject of the claim for indemnification shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of
such Notes (before deducting expenses) received by the Company and the total
discount or commission received by the Agent, in each case as set forth on the
cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet, bear to the aggregate initial public offering price of such
Notes as set forth on such cover.
The relative fault of the Company, on the one hand, and the Agent, on the
other hand, 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 Company or by the Agent and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Agent agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to
22
<PAGE>
above in this Section 9. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 9 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 9, the Agent shall not be
required to contribute any amount in excess of the amount by which the total
discount or commission received by the Agent in connection with the offering
of Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which the Agent 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 Section 9, each person, if any, who controls the
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Agent, and each
director of the Company, each officer of the Company who signed the
Registration Statement (or signs any amendment thereto), and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) the preparation, filing, printing and delivery of the
Registration Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(b) the preparation, filing, printing, delivery and reproduction of
this Agreement;
(c) the preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form and the cost of obtaining CUSIP or other
identification numbers for the Notes;
(d) the fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any calculation agent;
(e) the reasonable fees and disbursements of counsel to the Agent
incurred in connection with the establishment of the Program (including,
without limitation, the
23
<PAGE>
preparation of the Registration Statement, the forms of the Notes, the
Indenture and this Agreement) and incurred from time to time in connection
with the transactions contemplated hereby up to an aggregate amount of $2,500;
(f) the qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees
and the reasonable fees and disbursements of counsel in connection therewith
and in connection with the preparation of any Blue Sky or Legal Investment
Survey;
(g) the printing and delivery to the Agent in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agent of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the
Notes;
(h) the preparation, reproducing and delivery to the Agent of copies
of the Indenture and all supplements and amendments thereto;
(i) any fees charged by S&P, Moody's and any other nationally
recognized statistical rating organization for the rating of the Program and
the Notes;
(j) the fees and expenses incurred in connection with any listing by
the Company of Notes on a securities exchange;
(k) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agent in connection with, the review, if any,
by the NASD; and
(l) any advertising and other out-of-pocket expenses of the Agent
incurred with the written approval of the Company in its discretion.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement, or in certificates of the Company or authorized representatives of
the Company submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Agent or any controlling person of the Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any
agreement hereunder by the Agent to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or the Agent,
upon the giving of 30 days' written notice of such termination to the other
party hereto; provided, however, that the Agent may immediately terminate this
Agreement if, despite the Agent's reasonable objection, the
24
<PAGE>
Company files with the Commission any document, notice of which filing is
required to be given to the Agent pursuant to Section 4(b) hereof.
(b) Termination of Agreement to Purchase Notes as Principal. The
Agent may terminate any agreement hereunder by the Agent to purchase Notes as
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there has been, since the date of such
agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there shall have
occurred any material adverse change in the financial markets in the United
States or any outbreak of hostilities or escalation thereof or other national
or international calamity or crisis the effect of which is such as to make it,
in the judgment of the Agent, impracticable to market the Notes or enforce
contracts for the sale of the Notes, or (iii) if trading in any Notes of the
Company has been suspended or limited by the Commission or a national
securities exchange, or if trading generally on either the Nasdaq National
Market System or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for Notes have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if a banking
moratorium shall have been declared by either the United States, New York,
Indiana, Illinois or Kentucky or (iv) if the rating assigned by any nationally
recognized statistical rating organization to the Program, any debt securities
of the Company or the Company's other Notes as of the date of such agreement
shall have been lowered or withdrawn since that date or if any such rating
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Program or any
debt securities of the Company or the Company's other Notes, or (v) if there
shall have come to the attention of the Agent any facts that would reasonably
cause it to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of Notes, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading. As used in this Section 12(b), the term
"Prospectus" means the Prospectus in the form first provided to the Agent for
use in confirming sales of the related Notes.
(c) General. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) the Agent
shall be entitled to any commission earned in accordance with the third
paragraph of Section 3(a) hereof, (ii) if at the time of termination (x) the
Agent shall own any Notes purchased by it as principal with the intention of
reselling them or (y) an offer to purchase any of the Notes has been accepted
by the Company but the time of delivery to the purchaser or its agent of the
Note or Notes relating thereto has not occurred, the covenants set forth in
Sections 4 and 7 hereof shall remain in effect until such Notes are so resold
or delivered, as the case may be, and the Company shall be entitled to receive
the proceeds of the sale, if any, of all Notes purchased or to be purchased by
the Agent as principal or as to which the Agent has solicited the offer to
purchase that the Company has accepted, but as to which the date fixed for
settlement has not
25
<PAGE>
occurred, and (iii) the covenant set forth in section 4(b) hereof, the
provisions of Section 10 hereof, the indemnity and contribution agreements set
forth in Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15
hereof shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein or in the Procedures, all notices
required under the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram, and any such
notice shall be effective when received at the address specified below.
(a) If to the Company, to:
Old National Bancorp
420 Main Street
Evansville, Indiana 47708
Attention: Jeffrey L. Knight,
Corporate Secretary and General Counsel
Telecopy No.: (812) 464-1567
(b) If to the Agent, to:
Smith Barney Inc.
390 Greenwich Street - 4th Floor
New York, New York 10013
Attention: MTN Product Management/Origination
Telecopy No.: (212) 723-8854
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Notes shall be deemed to be a successor by reason merely of
such purchase.
26
<PAGE>
SECTION 15. GOVERNING LAW.
-------------
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF INDIANA
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
SECTION 16. Effect of Headings.
------------------
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 17. Counterparts.
------------
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
If the foregoing is in accordance with the Agent's understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agent and the Company in accordance with its terms.
Very truly yours,
OLD NATIONAL BANCORP
By: /s/ RONALD B. LANKFORD
------------------------------------
Name: Ronald B. Lankford
Title: President and Chief Operating
Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
SMITH BARNEY INC.
By: /s/ PAUL SHELDON
-------------------------
Authorized Representative
27
<PAGE>
SCHEDULE A
As compensation for the services of the Agent hereunder, the Company
shall pay the Agent, on a discount basis, a commission for the sale of each
Note equal to the principal amount* of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150
From 18 months to less than 2 years .200
From 2 years to less than 3 years .250
From 3 years to less than 4 years .350
From 4 years to less than 5 years .450
From 5 years to less than 6 years .500
From 6 years to less than 7 years .550
From 7 years to less than 10 years .600
From 10 years to less than 15 years .625
From 15 years to less than 20 years .675
From 20 years to 30 years .750
Greater than 30 years **
__________________
* With respect to zero-coupon or discount Notes, the principal amount upon
which the Agent's commission shall be based shall be the initial issue
price (and not the face amount) of such Notes.
** As agreed to by the Company and the Agent at the time of sale.
<PAGE>
EXHIBIT A
PRICING TERMS
The following terms, if applicable, shall be agreed to by the Agent and
the Company in connection with each sale of Notes:
Principal Amount: $__________
(Or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[ ] LIBOR Reuters
[ ] LIBOR Telerate
Designated LIBOR Page:
[ ] Reuters Page:
[ ] Telerate:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
[ ] weekly average
[ ] monthly average
Designated CMT Maturity Index:
Interest Calculation:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
A-1
<PAGE>
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Authorized Denomination:
Purchase Price: ____%, plus accrued interest, if any, from ________
Price to Public: ___%, plus accrued interest, if any, from ________
Issue Price:
Settlement Date and Time:
Additional /Other Terms
Also in connection with the purchase of Notes from the Company by the
Agent as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-Off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
A-2
<PAGE>
EXHIBIT B
FORM OF OPINION OF THE COMPANY'S
COUNSEL TO BE DELIVERED PURSUANT
TO SECTION 5(b)(i)
(1) The Company has been duly incorporated and is validly existing as
a corporation under the laws of the State of Indiana and has the corporate
power and authority to own, lease and operate its properties, to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Distribution Agreement.
(2) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction other than the
State of Indiana in which such qualification is required, except where the
failure to so qualify or be in good standing would not result in a Material
Adverse Effect.
(3) The authorized, issued and outstanding shares of capital stock of
the Company are as set forth or incorporated by reference in the Prospectus.
All of the issued and outstanding shares of Common Stock have been duly
authorized and are validly issued, fully paid and non-assessable.
(4) Each of the Company's subsidiaries (a) that has been incorporated
under state law has been duly incorporated and is validly existing and, where
applicable, in good standing under the laws of the state of its jurisdiction
of organization, (b) that is a national banking association has been duly
incorporated and is validly existing under federal law and (c) has the
corporate power and authority to own, lease and operate its properties and to
conduct the business in which it is engaged as described in the Prospectus.
All of the issued and outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued, are fully
paid and non-assessable and are owned by the Company free and clear of any
Liens, except (i) to the extent provided by 12 U.S.C. § 55, as amended
and (ii) for qualifying shares which may be owned by directors of the
Company's subsidiaries.
(5) The Distribution Agreement has been duly authorized, executed and
delivered by the Company and is enforceable against the Company, subject, as
to enforcement, to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(6) The Securities have been duly authorized by all necessary action
on the part of the Company, and when (a) the variable terms of the Securities
have been established by the authorized committee or officers of the Company
to whom such authority has been delegated, (b) the Securities have been
executed and authenticated in the manner provided for in the Indenture and (c)
the Securities have been delivered by the Company pursuant to the
B-1
<PAGE>
Distribution Agreement, the Prospectus and any applicable Pricing Supplement
against payment of the consideration therefor, (i) the Securities will
constitute valid and legally binding obligations of the Company, (ii) the
Securities will be enforceable against the Company and (iii) each registered
holder of Securities will be entitled to the benefits of the Indenture. The
Securities, in the form certified by the Company on the date hereof, have been
established in conformity with the provisions of the Indenture, are in the
form contemplated by the Indenture and conform, in all material respects, to
the description thereof contained in the Prospectus.
(7) The Indenture has been duly authorized, executed and delivered by
the Company is enforceable against the Company, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The Indenture has been duly qualified under the 1939 Act and
conforms in all material respects to the description thereof contained in the
Prospectus.
(8) The execution, delivery and performance of the Distribution
Agreement, the Indenture and the Securities by the Company, and the compliance
by the Company with its obligations thereunder, do not (a) conflict with or
constitute a breach of or a default or Repayment Event under any Agreements
and Instruments of which such counsel's Primary Lawyer Group has Actual
Knowledge, except for such conflicts, breaches, defaults or Repayment Events
that would not result in a Material Adverse Effect, (b) result in any
violation of the provisions of the Articles of Incorporation or By-Laws of the
Company or (c) result in the violation of any applicable law or regulation or
any judgment, order, writ or decree, of any government, government
instrumentality or court having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations of which such
counsel's Primary Lawyer Group has Actual Knowledge, except for such
violations that would not have a Material Adverse Effect.
(9) No filing with, or authorization, approval, consent, order,
registration or qualification of, any court or governmental authority or
agency is required for the performance by the Company of its obligations under
the Distribution Agreement or the Indenture, except such as have been already
obtained or as may be required under the 1933 Act, the 1933 Act Regulations,
the 1939 Act, the 1939 Act Regulations or state securities laws.
(10) Each part of the Registration Statement, when such part became
effective, and the Prospectus and any amendments and supplements thereto made
by the Company prior to the date hereof, on the date of filing thereof with
the Commission, complied in all material respects as to form with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act and the
1939 Act Regulations, other than any financial statements or information
(including the notes thereto) and related schedules, and any statistical data
as to all of which such counsel expresses no opinion.
B-2
<PAGE>
(11) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus and any amendments
and supplements thereto made by the Company prior to the date hereof, on the
date of filing thereof with the Commission, complied in all material respects
as to form with the requirements of the 1934 Act and the 1934 Act Regulations,
other than any financial statements or information (including the notes
thereto) and related schedules, and any statistical data as to all of which
such counsel expresses no opinion.
(12) Such counsel, in the course of acting as counsel to the Company,
such counsel met in conferences and participated in telephone conversations
with representatives of the Company, the Agent, the Company's accountants and
the Agent's attorneys, during which conferences and telephone conversations
the contents of the Registration Statement and the Prospectus and related
matters were discussed. Based on such counsel's participation in the
above-mentioned conferences, telephone conversations and discussions and such
counsel's review of the Registration Statement and the Prospectus, such
counsel hereby advises you that no information has, to such counsel's Actual
Knowledge of its Primary Lawyer Group, come to such counsel's attention which
causes such counsel: (a) to believe that the Registration Statement as of the
effective time of the Registration Statement or any amendment thereto made by
the Company prior to the date hereof (other than any financial information or
statements (including the notes thereto) and related schedules included
therein, and any statistical data as to all of which such counsel expresses no
view) 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; (b) to believe that, as of the date of
filing with the Commission and as of the date hereof, the Prospectus and any
amendment or supplement thereto made by the Company prior to the date hereof
(other than any financial information or statements (including the notes
thereto) and related schedules included therein, and any statistical data as
to all of which such counsel expresses no view) contains an untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein, in light of circumstances in which they were made, not
misleading; and (c) to believe that any of the documents incorporated by
reference into the Registration Statement and the Prospectus and any amendment
or supplement thereto made by the Company prior to the date hereof (other
than any financial information or statements (including the notes thereto) any
related schedules included therein and any statistical data as to all of which
such counsel expresses no view), when read together with the other information
in the Registration Statement, Prospectus and any amendments or supplements
thereto, when they were so filed contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
With respect to the opinions set forth in clauses (2) and (4), counsel
may rely upon opinions of local counsel or the Company's General Counsel,
provided that counsel shall state that they believe that both the Agent and
they are justified in relying upon such opinions. Copies of any such
opinions, and of any certificates on which such counsel relies, shall be
furnished to the Agent's counsel at the time the opinion is delivered.
B-3
<PAGE>
EXHIBIT C
FORM OF ACCOUNTANT'S COMFORT LETTER
PURSUANT TO SECTION 5(d)
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
[Date]
Smith Barney Inc.
390 Greenwich Street - 4th Floor
New York, New York 10013
Ladies and Gentlemen:
This letter is written at the request of Old National Bancorp (the
"Company"). We have audited the consolidated balance sheets of the Company
and its subsidiaries as of December 31, ____ and ____, and the related
consolidated statements of income, shareholders' equity and cash flows for
each of the three years in the period ended December 31, ____, incorporated by
reference in the Company's Annual Report on Form 10-K for the year ended
December 31, ____, and incorporated by reference in the Registration Statement
on Form S-3 (No. 333-_____) filed by the Company under the Securities Act of
1933 (the "Act"). Our reports with respect to the Company are also
incorporated by reference in that registration statement and the prospectus
dated July 23, 1997. The registration statement and the prospectus are herein
referred to as the "Registration Statement."
In connection with the Registration Statement:
1. We are independent public accountants with respect to the Company
within the meaning of the Act and the applicable published rules
and regulations thereunder.
2. In our opinion, the consolidated financial statements and
schedules audited by us and incorporated by reference in the
Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the Act and the
Securities Exchange Act of 1934 and the related published rules
and regulations.
3. We have not audited any financial statements of the Company as of
any date or for any period subsequent to December 31, ____;
although we have conducted an audit of the Company for the year
ended December 31, ____, the purpose (and therefore the scope) of
the audit was to enable us to express our opinion
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on the consolidated financial statements as of December 31, ____,
and for the year then ended, but not on the consolidated
financial statements for any interim period within that year.
Therefore, we are unable to and do not express any opinions: (1)
on the unaudited consolidated condensed balance sheets as of
______ __, ____, and the unaudited consolidated condensed balance
sheet as of _______ __, ____, and the unaudited consolidated
condensed statements of income, shareholders' equity and cash
flows for the [____-month and] ____- month period[s] ended
_______ __, ____, and ____ included in the Company's Quarterly
Report on Form 10-Q for the quarter ended _______ __, ____, and
included or incorporated by reference in the Registration
Statement, or in the financial position, results of operations or
cash flows as of any date or for any period subsequent to
December 31, ____.
4. For purposes of this letter, we have read the ____ minutes of
meetings of the Board of Directors, shareholders and Audit
Committees of the Company's Board of Directors, but not of any
affiliates of the Company, read the written consents of the
Company's Board of Directors, as set forth in the minute books at
_________ __, ____, officials of the Company having advised us
that the minutes of all such meetings through that date were set
forth therein, and have carried out other procedures to _______
__, ____, as follows (our work did not extend to ________ __,
____):
a. With respect to the ___-month [and ____-month] period[s]
ended _______ __, ____ and ____, we have
(i) Read the unaudited consolidated condensed
financial statements for these periods, included
in the Company's Quarterly Report on Form 10-Q
for the quarter ended ______ __, ____,
incorporated by reference in the Registration
Statement, and agreed the amounts contained
therein with the Company's accounting records as
of _______ __, ____ and ____, and for the
___-month [and ____-month] period[s] then ended.
(ii) Inquired of certain officials of the Company who
have responsibility for financial and accounting
matters whether the unaudited consolidated
condensed financial statements referred to in
4.(a)(i): (1) are in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements incorporated by
reference in the Registration Statement, and (2)
comply as to form in all material respects with
the applicable accounting requirements of the
Securities Exchange Act of 1934 as it applies to
Form 10-Q and the related published rules and
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regulations. Those officials stated that the
unaudited consolidated condensed financial
statements (1) are in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements, and (2) comply
as to form in all material respects with the
applicable accounting requirements of the
Securities Exchange Act of 1934 as it applies to
Form 10-Q and the related published rules and
regulations.
b. With respect to the period from ______ __, ____ to ______
__, ____, we have
(i) Read the unaudited condensed consolidated
financial statements of the Company for ________,
[________] and ________ of both ____ and ____
furnished us by the Company (the financial
information for ________, [________] and ________
is incomplete in that it omits the statements of
cash flows and footnote disclosures), and agreed
the amounts contained therein to the Company's
accounting records. Officials of the Company
have advised us that no such financial statements
as of any date or for any period subsequent to
________ ___, ____, were available.
(ii) Inquired of certain officials of the Company who
have responsibility for financial and accounting
matters whether (1) the unaudited financial
statements referred to in b.(i) are stated on a
basis substantially consistent with that of the
audited consolidated financial statements
incorporated by reference in the Registration
Statement, (2) at ________ __, ____, there was
any change in the common stock (other than
issuances of common stock upon exercise of
options and stock appreciation rights, upon
earn-outs of performance shares and upon
conversions of convertible securities, in each
case which were outstanding at ________ __,
____), increase in long-term debt or any decrease
in stockholders' equity of the Company as
compared with amounts shown in the ________ __,
____ unaudited condensed consolidated balance
sheet incorporated by reference in the
Registration Statement and, (3) for the period
from ________ __, ____ to ________ __, ____,
there was a decrease, as compared with the
corresponding period in the preceding year, in
consolidated net income. Those officials stated
that (1) the unaudited consolidated financial
statements referred to in 4.b.(1) are stated on a
basis substantially consistent with that of the
audited consolidated financial statements
incorporated by
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reference in the Registration Statement, (2) at
________ __, ____, there was no increase in
long-term debt, and no decrease in stockholders'
equity in the Company as compared with amounts
shown in the ________ __, ____, unaudited
condensed consolidated balance sheet incorporated
by reference in the Registration Statement and,
(3) there was no decrease for the period from
________ __, ____ to ________ __, ____, as
compared with the corresponding period in the
preceding year, in consolidated net income.
Management did indicated a change in the dollar
amount of common stock, at $1 stated value per
share, from $___________ at ________ __, ____ to
$___________ at ________ __, ____.
c. As mentioned in 4.b.(1), Company officials have advised
us that no financial statements as of any date or for any
period subsequent to ________ __, ____, are available;
accordingly, the procedures carried out by us with
respect to changes in financial statement items after
________ __, ____, have, of necessity, been even more
limited than those with respect to the periods referred
to in 4.a. and 4.b. We have inquired of certain
officials of the Company who have responsibility for
financial and accounting matters whether (a) at ________
__, ____, there was any change in the common stock (other
than issuances of common stock upon exercise of options
and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible
securities), increase in long-term debt or decrease in
stockholders' equity of the Company as compared with
amounts shown in the ________ __, ____, unaudited
condensed consolidated balance sheet incorporated by
reference in the Registration Statement, or (b) for the
period from ________ __, ____ to ________ __, ____, there
was a decrease, as compared with the corresponding period
in the preceding year, in consolidated net income. Those
officials stated that at ________ __, ____, there was no
increase in long-term debt. Management did indicated
that a change in the dollar amount of common stock, at $1
stated value per share, from $__________ at ________ __,
____ to $__________ at ________ __, ____. Management has
represented to us that no data is available with regard
to the consolidated financial position and operating
results including stockholders' equity and consolidated
net income for the period from ________ __, ____ to
________ __, ____.
The foregoing procedures do not constitute an audit made in accordance
with generally accepted auditing standards. Also, they would not
necessarily reveal matters of significance with respect to the comments
in the following paragraph. Accordingly, we make no representations
regarding the sufficiency of the foregoing procedures for
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your purposes. Had we performed procedures or had we conducted an audit
or a review, other matters might have come to our attention that would
have been reported to you.
[Include the following paragraph 5 if any pro forma financial information is
included or incorporated by reference into the Registration Statement:]
5. At your request, we have:
a. Read the unaudited pro forma combined condensed balance
sheet as of _______ __, ____, of the Company, and the
unaudited pro forma combined condensed statements of
operations for the year ended ______ __, ____, and the
____-month period ended ________ __. ____, of the
Company, included or incorporated by reference in the
Registration Statement.
b. Inquired of certain officials of the Company who have
responsibility for financial and accounting matters
about -
(i) The basis for their determination of the pro
forma adjustments, and
(ii) Whether the unaudited pro forma combined
condensed financial statements referred to in 5a.
comply as to form in all material respects with
the applicable accounting requirements of rule
11--02 of Regulation S-X.
c. Proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the
unaudited pro forma combined condensed financial
statements.
The foregoing procedures are substantially less in scope than an
examination, the objective of which is the expression of an opinion on
management's assumptions, the pro forma adjustments, and the application
of those adjustments to historical financial information. Accordingly,
we do not express such an opinion. The forgoing procedures would not
necessarily reveal matters of significance with respect to the comments
in the following paragraph. Accordingly, we make no representation about
the sufficiency of such procedures for your purposes.
6. For purposes of this letter, we have also read the items
identified by you on the attached copy of the Registration
Statement, the Company's Annual Report on form 10-K for the year
ended ________ __, ____ and the Company's Quarterly Report on
Form 10-Q for the ___-month period ended ________ __, ____, and
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have performed the following procedures, which were applied as
indicated with respect to the symbols explained below:
A Compared to or recalculated from the audited financial
statements or notes thereto included in the Company's
Annual Report on Form 10-K for the year ended ________
__, ____, and found the amounts or percentages to be in
agreement.
Q Compared to or recalculated from the unaudited
consolidated condensed financial statements or notes
thereto included in the Company's Quarterly Report on
Form 10-Q for the ____-month period ended _______ __,
____, and found the amounts or percentages to be in
agreement.
M Verified arithmetical accuracy.
P Compared to or recalculated from unaudited internal
schedules (worksheets) or reports prepared by Company
personnel and found the amounts or percentages to be in
agreement. Amounts were rounded to the nearest whole
dollar or percentage where applicable.
F Compared to or recalculated from the unaudited pro forma
combined condensed financial statements or notes thereto
included or incorporated by reference in the Registration
Statement, and found the amounts to be in agreement.
7. Our audits of the financial statements for the periods referred
to in the introductory paragraph of this letter comprised audit
tests and procedures deemed necessary for the purpose of
expressing an opinion on such financial statements taken as a
whole. For none of the periods referred to therein nor any other
period did we perform audit tests for the purposes of expressing
an opinion on individual balances or accounts or summaries of
selected transactions such as those enumerated above and,
accordingly, we express no opinion thereon.
8. It should be understood that our work with respect to the
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" incorporated by reference in the Company's
Annual Report on Form 10-K for the year ended _______ __, ____,
and Quarterly Report on Form 10-Q for the ____-month period ended
_________ __, ____, was limited to applying the procedures stated
above and, thus, we make no representations regarding the
adequacy of disclosure or, other than with respect to the noted
results of the specified procedures applied, the accuracy of the
discussion contained therein or whether any facts have been
omitted.
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9. It should be understood that we make no representations regarding
questions of legal interpretation or regarding the sufficiency of
your purposes of the procedures enumerated in the preceding
paragraphs, also, such procedures would not necessarily reveal
any material misstatement of the amounts, or percentages referred
to above. Further, we have addressed ourselves solely to the
foregoing data as set forth, or incorporated by reference, in the
Registration Statement and make no representations regarding the
adequacy of the disclosure or regarding whether any material
facts have been omitted.
10. This letter is solely for the information of the addressees and
to assist the underwriters in conducting and documenting their
investigation of the affairs of the Company and subsidiaries in
connection with the offering of the securities covered by the
Registration Statement, and it is not to be used, circulated,
quoted, or otherwise referred to within or without the
underwriting group for any other purpose, including but not
limited to the registration, purchase, or sales of securities,
nor is it to be filed with or referred to in whole or in part in
the Registration Statement or any other document, except that
reference may be made to it in the underwriting agreement or in
any list of closing documents pertaining to the offering of the
securities covered by the Registration Statement.
ARTHUR ANDERSEN LLP
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