<PAGE> 1
EXHIBIT 1.1
1,250,000 Preferred Securities
BVBC Capital Trust I
____% Cumulative Trust Preferred Securities
(Liquidation Amount of $8.00 per Preferred Security)
UNDERWRITING AGREEMENT
________, 2000
DRAFT DATED 5/16/00
STIFEL, NICOLAUS & COMPANY, INCORPORATED
501 North Broadway, 9th Floor
St. Louis, Missouri 63102
Ladies and Gentlemen:
Blue Valley Ban Corp., a Kansas corporation (the "Company"), and its
financing subsidiary, BVBC Capital Trust I, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the "Offerors"), propose
that the Trust issue and sell to Stifel, Nicolaus & Company, Incorporated (the
"Underwriter"), pursuant to the terms of this Agreement, 1,250,000 of the
Trust's % Cumulative Trust Preferred Securities, with a liquidation amount
of $8.00 per preferred security (the "Preferred Securities"), to be issued under
the Trust Agreement (as hereinafter defined), the terms of which are more fully
described in the Prospectus (as hereinafter defined). The aforementioned
1,250,000 Preferred Securities to be sold to the Underwriter are herein called
the "Firm Preferred Securities." Solely for the purpose of covering
over-allotments in the sale of the Firm Preferred Securities, the Offerors
further propose that the Trust issue and sell to the Underwriter, at the
Underwriter's option (the "Option"), up to an additional 187,500 Preferred
Securities (the "Option Preferred Securities") upon exercise of the
over-allotment option granted in Section 1 hereof. The Firm Preferred Securities
and any Option Preferred Securities are herein collectively referred to as the
"Designated Preferred Securities."
The Offerors hereby confirm as follows their agreement with the
Underwriter in connection with the proposed purchase of the Designated Preferred
Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES;
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to the Underwriter,
and the Underwriter agrees to purchase from the Trust, at a purchase price of
$8.00 per Preferred Security (the "Purchase Price"), the Firm Preferred
Securities. Because the proceeds from the sale of the Firm Preferred Securities
will be used to purchase from the Company its Debentures (as hereinafter defined
and as described in the Prospectus), the Company shall pay to the Underwriter a
commission of $ per Firm Preferred Security purchased (the "Firm Preferred
Securities Commission").
<PAGE> 2
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriter the Option to purchase all or
any portion of the 187,500 Option Preferred Securities, and upon the exercise of
the Option in accordance with this Section 1, the Offerors hereby agree that the
Trust shall issue and sell to the Underwriter all or any portion of the Option
Preferred Securities at the same Purchase Price per share paid for the Firm
Preferred Securities. Because the proceeds from the sale of the Option Preferred
Securities will be used to purchase from the Company its Debentures, the Company
shall pay to the Underwriter a commission of $ per Option Preferred
Security for each Option Preferred Security purchased (the "Option Preferred
Securities Commission"). The Option shall expire at 5:00 p.m. St. Louis time 30
days after the Effective Date (as hereinafter defined) and may be exercised only
for the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Firm Preferred Securities. The Option may
be exercised in whole or in part at any time (but not more than once) by the
Underwriter giving notice (confirmed in writing) to the Trust setting forth the
number of Option Preferred Securities as to which the Underwriter is exercising
the Option and the time and date for payment and delivery of the Global
Securities (as hereafter defined) for such Option Preferred Securities. Such
time and date of payment and delivery for the Option Preferred Securities (the
"Option Closing Date") shall be determined by the Underwriter, but shall not be
earlier than two nor later than four business days after the exercise of the
Option, nor in any event prior to the Closing Date (as hereinafter defined). The
Option Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of the Global Securities for the Firm Preferred
Securities shall be made at the offices of the Underwriter, 501 North Broadway,
St. Louis, Missouri 63102, or such other place as shall be agreed to by the
Underwriter and the Offerors, at 10:00 a.m., St. Louis time, on , 2000,
or at such other time not more than five full business days thereafter as the
Offerors and the Underwriter shall determine (the "Closing Date"). The Trust
shall deliver or cause to be delivered to you for the account of the Underwriter
against payment to or upon the order of the Trust of the purchase price in
federal or other immediately available funds, the Firm Preferred Securities in
the form of one or more permanent global securities in definitive form (the
"Global Securities") deposited with the Property Trustee as custodian for the
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent Global Securities will be held only
in book-entry form. If the Underwriter exercises the Option to purchase any or
all of the Option Preferred Securities, payment of the Purchase Price and Option
Preferred Securities Commission and delivery of the Global Securities for such
Option Preferred Securities shall be made on the Option Closing Date at the
offices of the Underwriter, or at such other place as the Offerors and the
Underwriter shall determine. Upon delivery, the Option Preferred Securities
shall be in the form of one or more Global Securities registered in the name of
Cede & Co., as nominee of DTC. Payments for the Designated Preferred Securities
shall be made to an account designated by the Trust by wire transfer, in same
day funds, in the amount of the aggregate Purchase Price therefor, against
delivery by or on behalf of the Trust to the Underwriter of certificates for the
Designated Preferred Securities to be purchased by the Underwriter.
The agreement contained herein with respect to the timing of the
Closing Date and Option Closing Date is intended to, and does, constitute an
express agreement, as described in Rule 15c6-1(c) and (d) promulgated under the
1934 Act (as defined herein), for a settlement date other than three business
days after the date of the contract.
Time shall be of the essence, and delivery of the Global Securities
for the Designated Preferred Securities at the time and place specified pursuant
to this Agreement is a further condition of the obligations of the Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Property
2
<PAGE> 3
Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative
Trustees named therein (collectively, the "Trustees"), and the Company, in
substantially the form heretofore delivered to the Underwriter (the "Trust
Agreement"). In connection with the issuance of the Designated Preferred
Securities, the Company proposes (i) to issue its Subordinated Debentures (the
"Debentures") pursuant to an Indenture, in substantially the form heretofore
delivered by the Offerors to the Underwriter, between the Company and Wilmington
Trust Company, as Trustee (the "Indenture"), and (ii) to guarantee certain
payments on the Designated Preferred Securities pursuant to a Preferred
Securities Guarantee Agreement, in substantially the form heretofore delivered
by the Offerors to the Underwriter, between the Company and Wilmington Trust
Company, as Guarantee Trustee (the "Guarantee"), to the extent described
therein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to, and
agree with, the Underwriter that:
(i) The Offerors have prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-1
(File Numbers 333-34328 and 333-34328-01) for the registration of, among
other securities, the Designated Preferred Securities, the Guarantee and up
to $11,855,672 aggregate principal amount of Debentures under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
prospectus subject to completion, and one or more amendments to such
registration statement may have been so filed, in each case in conformity
in all material respects with the requirements of the 1933 Act, the rules
and regulations promulgated thereunder (the "1933 Act Regulations") and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
rules and regulations promulgated thereunder. Copies of such registration
statement, including any amendments thereto, each Preliminary Prospectus
(as defined herein) contained therein and the exhibits, financial
statements and schedules to such registration statement, as finally amended
and revised, have heretofore been delivered by the Company to the
Underwriter. After the execution of this Agreement, the Company shall file
with the Commission (A) if such registration statement, as it may have been
amended, has been declared by the Commission to be effective under the 1933
Act, a prospectus in the form most recently included in an amendment to
such registration statement (or, if no such amendment shall have been
filed, in such registration statement), with such changes or insertions as
are required by Rule 430A of the 1933 Act Regulations ("Rule 430A") or
permitted by Rule 424(b) of the 1933 Act Regulations ("Rule 424(b)") and as
have been provided to and not objected to by the Underwriter prior to (or
as are agreed to by the Underwriter subsequent to) the execution of this
Agreement, or (B) if such registration statement, as it may have been
amended, has not been declared by the Commission to be effective under the
1933 Act, an amendment to such registration statement, including a form of
final prospectus, necessary to permit such registration statement to become
effective, a copy of which amendment has been furnished to and not objected
to by the Underwriter prior to (or is agreed to by the Underwriter
subsequent to) the execution of this Agreement. As used in this Agreement,
the term "Registration Statement" means such registration statement, as
amended at the time when it was or is declared effective under the 1933
Act, including (1) all financial statements and schedules and exhibits
thereto, and (2) any information omitted therefrom pursuant to Rule 430A
and included in the Prospectus; the term "Preliminary Prospectus" means
each prospectus subject to completion filed with such registration
statement or any amendment thereto (including the prospectus subject to
completion, if any, included in the Registration Statement and each
prospectus filed pursuant to Rule 424(a) under the 1933 Act); and the term
"Prospectus" means the prospectus first filed with the Commission pursuant
to Rule 424(b)(1) or (4) or, if no prospectus is required to be filed
pursuant to Rule 424(b)(1) or (4), the prospectus included in the
Registration Statement, in each case including the financial statements and
schedules. The date on which the Registration Statement becomes effective
is hereinafter referred to as the "Effective Date." A registration
statement with respect to the Preferred Securities and the Guarantee has
been prepared
3
<PAGE> 4
by the Offerors pursuant to and in conformity in all material respects with
the Securities and Exchange Act of 1934, as amended (the "1934 Act") and
the rules and regulations promulgated thereunder (the "1934 Regulations"),
and has been filed with the Commission under the 1934 Act, and such
registration statement will become effective under the 1934 Act when the
Registration Statement is declared effective. No document has been or shall
be prepared or distributed in reliance on Rule 434 under the 1933 Act.
(ii) No order preventing or suspending the use of the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) has been issued by the Commission, nor has the Commission, to
the knowledge of the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary Prospectus, at
the time of filing thereof, (A) conformed and complied in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations
and the Trust Indenture Act (and the rules and regulations thereunder), and
(B) did not include or contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this representation
and warranty does not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Offerors by the Underwriter expressly for inclusion in the Preliminary
Prospectus or the Prospectus (the "Underwriter's Information"). The
Underwriter's Information includes only the concession and reallowance
figures appearing in the third paragraph under the caption "Underwriting"
in the Prospectus and the information contained in the seventh paragraph
under the caption "Underwriting" in the Prospectus.
(iii) At the Effective Date and at all times subsequent thereto,
up to and including the Closing Date and, if applicable, the Option Closing
Date, the Registration Statement and any post-effective amendment thereto
(A) conformed and complied and will conform and comply in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations,
and the Trust Indenture Act (and the rules and regulations thereunder), and
(B) did not and will not include or contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty does not apply to
the Underwriter's Information. At the Effective Date and at all times when
the Prospectus is required to be delivered in connection with offers and
sales of Designated Preferred Securities, including, without limitation,
the Closing Date and, if applicable, the Option Closing Date, the
Prospectus, as amended or supplemented, (A) conformed and complied and will
conform and comply in all material respects with the requirements of the
1933 Act, the 1933 Act Regulations and the Trust Indenture Act (and the
rules and regulations thereunder), and (B) did not include or contain and
will not include or contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty does not apply to the Underwriter's Information.
(iv) (A) The Company is duly organized, validly existing and in
good standing under the laws of the State of Kansas, with full corporate
and other power and authority to own, lease and operate its properties and
conduct its business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) and as currently being conducted
and is duly registered as bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the Delaware Business
Trust Act with the power and authority (trust and other) to own its
property and conduct its business as described in the
4
<PAGE> 5
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), to issue and sell its
common securities (the "Common Securities") to the Company pursuant to the
Trust Agreement, to issue and sell the Designated Preferred Securities, to
enter into and perform its obligations under this Agreement and to
consummate the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or the
ownership of its property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not have a
material adverse effect on the Trust; the Trust has conducted and will
conduct no business other than the transactions contemplated by this
Agreement and described in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus); the Trust is not a party to or bound by any agreement or
instrument other than this Agreement and the Trust Agreement among the
Administrative Trustees and Wilmington Trust Company dated March 30, 2000
(the "Original Trust Agreement"); at the Closing Date or any Option Closing
Date, the Trust will not be a party to or be bound by any agreement or
instrument other than the Trust Agreement and the agreements and
instruments contemplated by the Trust Agreement and described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); the Trust is not a
party to or subject to any action, suit or proceeding of any nature; the
Trust is not, and at the Closing Date or any Option Closing Date shall not
be classified as an association taxable as a corporation for United States
federal income tax purposes; and the Trust is, and as of the Closing Date
or any Option Closing Date shall be, treated as a consolidated subsidiary
of the Company pursuant to generally accepted accounting principles.
(v) The Company has the direct and indirect subsidiaries
identified on Exhibit A hereto (together, the "Subsidiaries" and
individually a "Subsidiary"). The Company does not own or control, directly
or indirectly, more than 5% of any class of equity security of any
corporation, association or other entity other than the Subsidiaries. Each
Subsidiary is a bank, corporation or business trust duly organized, validly
existing and in good standing under the laws of its respective jurisdiction
of incorporation or organization. Each such Subsidiary has full corporate
and other power and authority to own, lease and operate its properties and
to conduct its business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and as currently being
conducted. The deposit accounts of the Bank of Blue Valley are insured by
the Bank Insurance Fund administered by the Federal Deposit Insurance
Corporation up to the maximum amount provided by law; and no proceedings
for the modification, termination or revocation of any such insurance are
pending or, to the knowledge of the Offerors, threatened.
(vi) The Company and each of the Subsidiaries is duly qualified
to transact business as a foreign corporation, bank or trust, as the case
may be, and is in good standing in each other jurisdiction in which it owns
or leases property or conducts its business so as to require such
qualification except where the failure to so qualify would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, stockholders' equity or results of
operations of the Offerors and the Subsidiaries, as the case may be, on a
consolidated basis. All of the issued and outstanding shares of capital
stock of the Subsidiaries (A) have been duly authorized and are validly
issued, (B) are fully paid and nonassessable except to the extent such
shares may be deemed assessable under 12 U.S.C. Section 55 or 12 U.S.C.
Section 1831o, and (C) except as disclosed in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), are directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
restriction upon voting or transfer,
5
<PAGE> 6
preemptive rights, claim or equity. Except as disclosed in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), there are no outstanding rights,
warrants or options to acquire or instruments convertible into or
exchangeable for any capital stock or equity securities of the Company or
the Subsidiaries.
(vii) The capital stock of the Company and the equity securities
of the Trust conform to the description thereof contained in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). The outstanding shares
of capital stock and equity securities of each Offeror have been duly
authorized and validly issued and are fully paid and nonassessable, and no
such shares were issued in violation of the preemptive or similar rights of
any security holder of an Offeror; no person has any preemptive or similar
right to purchase any shares of capital stock or equity securities of the
Trust. Except as disclosed in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding rights, options or warrants to
acquire any securities of the Offerors, and there are no outstanding
securities convertible into or exchangeable for any such securities and no
restrictions upon the voting or transfer of any capital stock of the
Company or equity securities of the Trust pursuant to the Company's
articles of incorporation or bylaws, the Trust Agreement or any agreement
or other instrument to which an Offeror is a party or by which an Offeror
is bound.
(viii) (A) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in accordance
with and upon the terms and conditions set forth in this Agreement, the
Trust Agreement, the Registration Statement and the Prospectus. All
corporate and trust action required to be taken by the Offerors for the
authorization, issuance, sale and delivery of the Designated Preferred
Securities in accordance with such terms and conditions has been validly
and sufficiently taken. The Designated Preferred Securities, when delivered
in accordance with this Agreement, shall be duly and validly issued and
outstanding, shall be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, shall be entitled to the benefits of
the Trust Agreement, shall not be issued in violation of or subject to any
preemptive or similar rights, and shall conform to the description thereof
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and the Trust
Agreement. None of the Designated Preferred Securities, immediately prior
to delivery, shall be subject to any security interest, lien, mortgage,
pledge, encumbrance, restriction upon voting or transfer, preemptive
rights, claim, equity or other defect.
(B) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and issued
as provided in the Indenture and delivered to the Trust pursuant to the
Trust Agreement, shall constitute valid and legally binding obligations of
the Company entitled to the benefits of the Indenture and shall conform to
the description thereof contained in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to the
Guarantee Trustee for the benefit of the Trust, shall constitute a valid
and legally binding obligation of the Company and shall conform to the
description thereof contained in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(D) The Agreement as to Expenses and Liabilities
between the Company and the Trust (the "Expense Agreement") has been duly
and validly authorized, and, when duly and validly executed and delivered
by the Company, shall constitute a valid and legally binding obligation of
the Company and shall conform to the description thereof contained in the
Registration
6
<PAGE> 7
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(ix) The Company and the Subsidiaries have complied in all
material respects with all federal, state and local statutes, regulations,
ordinances and rules applicable to the ownership and operation of their
properties and the conduct of their businesses as described in and
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) and
as currently being conducted. Neither the Company nor any non-banking
Subsidiary of the Company engages directly or indirectly in any activity
prohibited by the Board of Governors of the Federal Reserve System or the
BHC Act or the regulations promulgated thereunder.
(x) The Company and the Subsidiaries have all material permits,
easements, consents, licenses, franchises and other governmental and
regulatory authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own and lease
their properties and conduct their businesses in the manner described in
and contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus)
and as currently being conducted. All such Permits are in full force and
effect and the Company and the Subsidiaries are in all material respects
complying therewith, and no event has occurred that allows, or after notice
or lapse of time would allow, revocation or termination thereof or will
result in any other material impairment of the rights of the holder of any
such Permit, subject in each case to such qualification as may be
adequately disclosed in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus). Such Permits contain no restrictions that would materially
impair the ability of the Company or the Subsidiaries to conduct their
businesses in the manner consistent with their past practices. Neither the
Company nor any of the Subsidiaries has received notice or otherwise has
knowledge of any proceeding or action relating to the revocation or
modification of any such Permit.
(xi) Neither the Company nor any of the Subsidiaries is in breach
or violation of its corporate articles of incorporation or charter, by-laws
or other governing documents (including without limitation, the Original
Trust Agreement) in any material respect. Neither the Company nor any of
the Subsidiaries is, and to the knowledge of the Offerors no other party
is, in violation, breach or default (with or without notice or lapse of
time or both) in the performance or observance of any term, covenant,
agreement, obligation, representation, warranty or condition contained in
(A) any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any other agreement
or instrument to which it is a party or by which it or any of its
properties may be bound, which breach, violation or default could have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company or the Subsidiaries on a consolidated basis (provided that the
foregoing shall not apply to defaults by any borrower of the Bank of Blue
Valley), and, to the knowledge of the Company, no other party has asserted
that the Company or any of the Subsidiaries is in such violation, breach or
default, except to the extent disclosed in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus)), and (B) except as disclosed in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), any order, decree, judgment, rule
or regulation of any court, arbitrator, government, or governmental agency
or instrumentality, domestic or foreign, having jurisdiction over the
Company or the Subsidiaries or any of their respective properties the
breach, violation or default of which could have a material adverse effect
on the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company or the Subsidiaries on a
consolidated basis.
7
<PAGE> 8
(xii) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this Agreement,
the Trust Agreement, the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus)
and the other documents and agreements referred to therein do not and will
not conflict with, result in the creation or imposition of any material
lien, claim, charge, encumbrance or restriction upon any property or assets
of the Company or the Subsidiaries or the Designated Preferred Securities
pursuant to, constitute a breach or violation of, or constitute a default
under, with or without notice or lapse of time or both, any of the terms,
provisions or conditions of the organizational documents of the Company or
the Subsidiaries, the Trust Agreement, the Guarantee, the Indenture, the
Expense Agreement, any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or any of their respective properties may
be bound or any order, decree, judgment, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality, domestic
or foreign, having jurisdiction over the Company or the Subsidiaries or of
their respective properties which conflict, creation, imposition, breach,
violation or default would have, either singly or in the aggregate, a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operation of the
Company and the Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of or filing, registration or qualification
with, any person (including, without limitation, any court, governmental
body or authority) is required in connection with the transactions
contemplated by this Agreement, the Trust Agreement, the Indenture, the
Guarantee, the Expense Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), except for the registration of the Designated
Preferred Securities under the 1933 Act and the Trust Indenture Act and the
qualification for listing of the Designated Preferred Securities by the
American Stock Exchange LLC, and such as may be required under state
securities laws or Interpretations or Rules of the National Association of
Securities Dealers, Inc. ("NASD") in connection with the purchase and
distribution of the Designated Preferred Securities by the Underwriter.
(xiii) The Offerors have all requisite corporate power and
authority to enter into this Agreement and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors and constitutes
the legal, valid and binding agreement of the Offerors, enforceable against
the Offerors in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and by bankruptcy or
other laws relating to or affecting creditors' rights generally and except
as any indemnification or contribution provisions thereof may be limited
under applicable securities laws. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly authorized
by the Company, and, when executed and delivered by the Company on the
Closing Date, each of said agreements shall constitute a valid and legally
binding obligation of the Company and shall be enforceable against the
Company in accordance with its terms, except as the enforcement thereof may
be limited by general principles of equity and by bankruptcy or other laws
relating to or affecting creditors' rights generally and except as any
indemnification or contribution provisions thereof may be limited under
applicable securities laws. Each of the Indenture, the Trust Agreement and
the Guarantee has been duly qualified under the Trust Indenture Act and
conforms to the description thereof contained in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(xiv) The Company and the Subsidiaries have good and marketable
title in fee simple to all real property and good title to all personal
property owned by them and material to their business, in each case free
and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except such
as are referred to in the
8
<PAGE> 9
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or such as do not
materially affect the value of such property in the aggregate or do not
materially interfere with the use made or proposed to be made of such
property; and all of the leases under which the Company or the Subsidiaries
hold real or personal property are valid, existing and enforceable leases
and in full force and effect with such exceptions as are not material and
do not materially interfere with the use made or proposed to be made of
such real or personal property, and neither the Company nor any of the
Subsidiaries is in default in any material respect of any of the terms or
provisions of any material leases.
(xv) Baird, Kurtz & Dobson, who have certified certain of the
consolidated financial statements of the Company and the Subsidiaries,
including the notes thereto, included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), are independent public accountants with respect to
the Company and the Subsidiaries as required by the 1933 Act and the 1933
Act Regulations.
(xvi) The consolidated financial statements, including the notes
thereto, included in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus)
with respect to the Company and the Subsidiaries, comply in all material
respects with the 1933 Act and the 1933 Act Regulations and present fairly
the consolidated financial position of the Company and the Subsidiaries as
of the dates indicated and the consolidated results of operations, cash
flows and changes in shareholders' equity of the Company and the
Subsidiaries for the periods specified and have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis. The selected and summary consolidated financial data concerning the
Company and the Subsidiaries included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) comply in all material respects with the 1933 Act
and the 1933 Act Regulations, present fairly the information set forth
therein, and have been compiled on a basis consistent with that of the
consolidated financial statements of the Company and the Subsidiaries in
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) complies in all material respects
with the 1933 Act and the 1933 Act Regulations, presents fairly the
information shown therein, and, to the extent applicable, has been compiled
on a basis consistent with the consolidated financial statements of the
Company and the Subsidiaries included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xvii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
except as otherwise stated therein:
(A) neither the Offerors nor any of the Subsidiaries
has sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action
which is material to the condition (financial or otherwise), earnings,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis;
(B) there has not been any material adverse change in,
or any development which to the knowledge of the Offerors is
reasonably likely to have a material adverse effect on, the condition
(financial or otherwise), earnings, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated
basis, whether or not arising in the ordinary course of business;
9
<PAGE> 10
(C) neither the Company nor any of the Subsidiaries
has incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions, other than in the ordinary
course of business, which is material to the condition (financial or
otherwise), earnings, business, prospects or results of operation of
the Company or Subsidiaries on a consolidated basis;
(D) neither of the Offerors has declared or paid any
dividend, and neither the Company nor any of the Subsidiaries has
become delinquent in the payment of principal or interest on any
outstanding borrowings; and
(E) there has not been any change in the capital
stock, equity securities, long-term debt, obligations under capital
leases or, other than in the ordinary course of business, short-term
borrowings of the Company or the Subsidiaries.
(xviii) Except as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Offerors, threatened,
against the Company or the Subsidiaries or any of their respective
properties before or by any court or any regulatory, administrative or
governmental official, commission, board, agency or other authority or
body, or any arbitrator, wherein an unfavorable decision, ruling or finding
could have a material adverse effect on the consummation of this Agreement
or the transactions contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis or which is
required to be disclosed in the Registration Statement or the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and is not so disclosed.
(xix) There are no contracts or other documents required to be
filed as exhibits to the Registration Statement by the 1933 Act or the 1933
Act Regulations or the Trust Indenture Act (or any rules or regulations
thereunder) which have not been filed as exhibits to the Registration
Statement, or that are required to be summarized in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus)
that are not so summarized.
(xx) The Offerors have not taken, directly or indirectly, any
action designed to result in or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Offerors to facilitate the sale or
resale of the Designated Preferred Securities, and neither of the Offerors
is aware of any such action taken or to be taken by any affiliate of the
Offerors.
(xxi) The Company and the Subsidiaries own, or possess adequate
rights to use, all patents, copyrights, trademarks, service marks, trade
names and other rights necessary to conduct the businesses now conducted by
them in all material respects or as described in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and neither the Company nor the Subsidiaries
have received any notice of infringement or conflict with asserted rights
of others with respect to any patents, copyrights, trademarks, service
marks, trade names or other rights which, individually or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis, and the Offerors do
not know of any basis for such infringement or conflict individually or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition (financial
or
10
<PAGE> 11
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis.
(xxii) Except as adequately disclosed in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), no labor dispute involving the
Company or the Subsidiaries exists or, to the knowledge of the Offerors, is
imminent which might be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis which is required to be disclosed in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(xxiii) The Company and the Subsidiaries have timely and properly
prepared and filed all necessary federal, state, local and foreign tax
returns which are required to be filed and have paid all taxes shown as due
thereon and have paid all other taxes and assessments to the extent that
the same shall have become due, except such as are being contested in good
faith or where the failure to so timely and properly prepare and file would
not have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis. The Offerors
have no knowledge of any tax deficiency which has been or might be assessed
against the Company or the Subsidiaries which, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxiv) Each of the material contracts, agreements and
instruments described or referred to in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and each contract, agreement and instrument filed
as an exhibit to the Registration Statement is in full force and effect and
is the legal, valid and binding agreement of the Company or the
Subsidiaries, enforceable against it (and, to the knowledge of the Company,
against the other party(ies) thereto) in accordance with its terms, except
as the enforcement thereof may be limited by general principles of equity
and by bankruptcy or other laws relating to or affecting creditors' rights
generally. Except as disclosed in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), neither the Company nor any Subsidiary is (with or
without notice or lapse of time or both) in breach or default in any
material respect thereunder and, to the knowledge of the Offerors, no other
party to any such agreement is (with or without notice or lapse of time or
both) in breach or default in any material respect thereunder.
(xxv) No relationship, direct or indirect, exists between or
among the Company or the Subsidiaries, on the one hand, and the directors,
officers, trustees, shareholders, customers or suppliers of the Company or
the Subsidiaries, on the other hand, which is required to be described in
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) which is not
adequately described therein.
(xxvi) No person has the right to request or require the Company
or the Subsidiaries to register any securities for offering and sale under
the 1933 Act by reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Designated Preferred Securities
except as adequately disclosed in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xxvii) The Designated Preferred Securities have been approved
for listing on the American Stock Exchange LLC subject to official notice
of issuance.
11
<PAGE> 12
(xxviii) Except as described in or contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no
contractual encumbrances or restrictions or material legal restrictions
required to be described therein, on the ability of the Subsidiaries to pay
dividends or make any other distributions on its capital stock or to pay
any indebtedness owed to the Company.
(xxix) Neither of the Offerors is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(xxxx) The Offerors have not distributed and will not
distribute prior to the Closing Date any prospectus in connection with the
offering contemplated hereby, other than a Preliminary Prospectus, the
Prospectus, the Registration Statement and the other materials permitted by
the 1933 Act and the 1933 Act Regulations and reviewed by the Underwriter.
(xxxi) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general or specific authorizations, (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization, and (D) the
recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
(xxxii) Except as described in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there is no factual basis for any action, suit or
other proceeding involving the Company or the Subsidiaries or any of their
material assets for any failure of the Company or any of the Subsidiaries,
or any predecessor thereof, to comply with any requirements of federal,
state or local regulation relating to air, water, solid waste management,
hazardous or toxic substances, or the protection of health or the
environment; except where such action, suit or other proceeding would not
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis. Except as described
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) or as would not
have material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis, none of the property
owned or leased by the Company or any of the Subsidiaries is contaminated
with any waste or hazardous substances, and neither the Company nor any of
the Subsidiaries may be deemed an "owner or operator" of a "facility" or
"vessel" which owns, possesses, transports, generates or disposes of a
"hazardous substance" as those terms are defined inss.9601 of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C.ss.9601 et seq.
(xxxiii) The Company and the Subsidiaries maintain insurance
covering in all material respects their properties, personnel and business.
Such insurance insures against such losses and risks as, in the judgment of
the executive officers of the Company, are adequate to protect in all
material respects the Company and the Subsidiaries and their businesses.
Neither the Company nor any of the Subsidiaries has received notice from
any insurer or agent of such insurer that substantial capital improvements
or other expenditures shall have to be made in order to continue such
insurance. All such insurance is outstanding and duly in force on the date
hereof and shall be outstanding and duly in force on the Closing Date and,
if applicable, the Option Closing Date, with such exceptions as would not
have a material adverse effect on the condition (financial or
12
<PAGE> 13
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis.
3. OFFERING BY THE UNDERWRITER. After the Registration Statement becomes
effective or, if the Registration Statement is already effective, after this
Agreement becomes effective, the Underwriter shall, subject to the terms and
conditions hereof, offer the Firm Preferred Securities for sale to the public
upon the terms and conditions set forth in the Prospectus. The Underwriter may
from time to time thereafter reduce the public offering price and change the
other selling terms, provided the proceeds to the Trust shall not be reduced as
a result of such reduction or change. Because the NASD is expected to view the
Preferred Securities as interests in a direct participation program, the
offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's Conduct Rules.
The Underwriter may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriter as the Underwriter may elect to dealers
chosen by it (the "Selected Dealers") at the public offering price set forth in
the Prospectus less the applicable Selected Dealers' concessions set forth
therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriter may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors jointly and severally
covenant with the Underwriter as follows:
(a) The Offerors shall cause the Registration Statement and any
amendments thereto, if not effective at the time of execution of this Agreement,
to become effective as promptly as possible. If the Registration Statement has
become or becomes effective pursuant to Rule 430A and information has been
omitted therefrom in reliance on Rule 430A, then the Offerors shall prepare and
file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or,
if required by Rule 430A, a post-effective amendment to the Registration
Statement (including the Prospectus) containing all information so omitted and
shall provide evidence satisfactory to the Underwriter of such timely filing.
(b) The Offerors shall notify the Underwriter immediately, and
confirm such notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus
has been filed;
(ii) of the receipt of any comments or requests from the
Commission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the
Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities for offering or
sale in any jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offerors shall use their best
efforts to prevent the issuance of any such stop order or of any other such
order and, if any such order is issued, to cause such order to be withdrawn
or lifted as soon as possible.
13
<PAGE> 14
(c) The Offerors shall furnish to the Underwriter, from time to time
without charge, as soon as available, as many copies as the Underwriter may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto, including exhibits, whether filed before or after the
Registration Statement becomes effective, (ii) all exhibits and documents filed
therewith, (iii) all consents and certificates of experts in executed form, (iv)
each Preliminary Prospectus and all amendments and supplements thereto, and (v)
the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act in connection with sales by the Underwriter or any dealer,
the Offerors shall comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Designated Preferred Securities as contemplated herein and
in the Trust Agreement and the Prospectus. The Offerors shall not file any
amendment to the registration statement as originally filed or to the
Registration Statement and shall not file any amendment thereto or make any
amendment or supplement to any Preliminary Prospectus or to the Prospectus of
which the Underwriter shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings thereof or to
which the Underwriter or its counsel shall reasonably object. If it is
necessary, in the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel, to amend or supplement the Registration Statement or the
Prospectus in connection with the distribution of the Designated Preferred
Securities, the Offerors shall forthwith amend or supplement the Registration
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission (provided the Underwriter or its counsel does not reasonably
object), and furnishing to the Underwriter, such number of copies as the
Underwriter may reasonably request of an amendment or amendments of, or a
supplement or supplements to, the Registration Statement or the Prospectus, as
the case may be (in form and substance reasonably satisfactory to the
Underwriter and its counsel). If, at any time when a prospectus relating to the
Preferred Securities is required to be delivered under the 1933 Act or the 1933
Act Regulations in connection with sales by the Underwriter or any dealer, any
event shall occur as a result of which it is necessary to amend or supplement
the Prospectus to correct an untrue statement of a material fact or to include a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any reason
it is necessary at any time to amend or supplement the Prospectus to comply with
the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the
second sentence of this subsection (d), forthwith at its cost and expense amend
or supplement the Prospectus by preparing and filing with the Commission, and
furnishing to the Underwriter, such number of copies as the Underwriter may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Prospectus (in form and substance reasonably satisfactory to
the Underwriter and its counsel) so that, as so amended or supplemented, the
Prospectus shall not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with the Underwriter and counsel for
the Underwriter in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions
within the United States of America as the Underwriter may reasonably request
and shall continue such qualifications in effect so long as may be advisable for
distribution of the Designated Preferred Securities; provided, however, that the
Offerors shall not be required to qualify to do business as a foreign
corporation or file a general consent to service of process in any jurisdiction
in connection with the foregoing. The Offerors shall file such statements and
reports as may be required by the laws of each jurisdiction in which the
Designated Preferred Securities have been qualified as above. The Offerors shall
notify the Underwriter immediately of, and confirm in writing, the suspension of
qualification of the Designated Preferred Securities or threat thereof in any
jurisdiction.
(f) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to the Underwriter as soon as practicable, but in any event not later
than 16 months after the Effective Date, a consolidated earnings
14
<PAGE> 15
statement of the Offerors conforming with the requirements of Section 11(a) of
the 1933 Act and Rule 158 of the 1933 Act Regulations.
(g) The Offerors shall use the proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(h) For 5 years from the Effective Date, the Offerors shall furnish
to the Underwriter copies of all reports and communications (financial or
otherwise) furnished by the Offerors to the holders of the Designated Preferred
Securities or its common stock as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the Commission) or with or
any national securities exchange or self-regulatory organization, and such other
documents, reports and information concerning the business and financial
condition of the Offerors as the Underwriter may reasonably request, other than
such documents, reports and information for which the Offerors has the legal
obligation not to reveal to the Underwriter.
(i) For a period of 180 days from the Effective Date, the Offerors
shall not, without the Underwriter's prior written consent, directly or
indirectly offer, sell, contract to sell or otherwise dispose of Preferred
Securities other than pursuant to this Agreement, any other beneficial interests
in the assets of the Trust or any securities of the Trust or the Company that
are substantially similar to the Preferred Securities or the Debentures,
including any guarantee of such beneficial interests or substantially similar
securities, or securities convertible into or exchangeable for or that represent
the right to receive any such beneficial interest or substantially similar
securities.
(j) The Offerors shall, as provided in the Trust Agreement and the
Indenture, use their best efforts to cause the Designated Preferred Securities
to become listed on the American Stock Exchange LLC or in lieu thereof another
national securities exchange. If the Designated Preferred Securities are
exchanged for Debentures, the Company shall, as provided in the Trust Agreement
and the Indenture, use its best efforts to have the Debentures promptly listed
on the American Stock Exchange LLC or another organization on which the
Designated Preferred Securities are then listed, and to have the Debentures
promptly registered under the 1934 Act.
(k) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriter's
Option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriter shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Company nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
shall result in the Company or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, and there shall not be any material
change in the financial position, capital stock, or any material increase in
long-term debt, obligations under capital leases or short-term borrowings
(except for repurchase agreements in the ordinary course of business consistent
with past practice) of the Company and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not take, directly or indirectly, any action
designed to result in or which has constituted or which might reasonably be
expected to (i) cause or result in stabilization or manipulation of the price of
any security of the Offerors to facilitate the sale or resale of the Designated
Preferred Securities or (ii) otherwise violate the Commission's Regulation M,
and the Offerors are not aware of any such action taken or to be taken by any
affiliate of the Offerors.
(m) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Offerors shall not issue any press release or other communication
directly or indirectly or hold any press conference
15
<PAGE> 16
with respect to the Company, the Subsidiaries or the offering of the Designated
Preferred Securities without the Underwriter's prior written consent.
(n) The Offerors shall comply with all registration, filing and
reporting requirements of the 1934 Act for so long as the Preferred Securities
or the Debentures shall remain outstanding.
(o) The Offerors shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Underwriter, purchase, redeem
or call for redemption, or prepay or give notice of prepayment (or announce any
redemption or call for redemption, any prepayment or notice of prepayment) of
any of the Offerors' securities, other than the redemption of the Preferred
Securities pursuant to their terms and as contemplated in the Prospectus.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is terminated or
the sale of the Designated Preferred Securities to the Underwriter is
consummated, the Company covenants and agrees that it will pay or cause to be
paid (directly or by reimbursement) all of its costs and expenses incident to
the performance of the obligations of the Offerors under this Agreement,
including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements);
(b) all fees, expenses and disbursements of the counsel and
accountants for the Offerors;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as the
Underwriter may request, including all filing fees and fees and disbursements of
counsel to the Underwriter in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary and Final Blue
Sky Memoranda and any legal investment surveys and any supplements thereto
(provided, however, that the aggregate amount payable by the Company to counsel
for the Underwriter with respect to the matters described in this Section 5(c)
shall not exceed $7,500);
(d) all fees and expenses incurred in connection with filings made
with the NASD and DTC;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the American Stock Exchange LLC;
(f) the cost of furnishing to the Underwriter copies of the initial
registration statement, any Preliminary Prospectus, the Registration Statement
and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel to any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriter;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture, the Guarantee and the Expense Agreement;
and
16
<PAGE> 17
(j) all other costs and expenses incident to the performance of the
obligations of the Offerors hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to the termination of this Agreement pursuant to
the terms hereof, the Company shall pay the Underwriter its accountable
out-of-pocket expenses in connection herewith or in contemplation of the
performance of the Underwriter's obligations hereunder, including travel
expenses, reasonable fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by the Underwriter in connection with any
discussion of the offering of the Designated Preferred Securities or the
contents of the Registration Statement, any investigation of the Company and the
Subsidiaries, or any preparation for the marketing, purchase, sale or delivery
of the Designated Preferred Securities, in each case following presentation of
reasonably detailed invoices therefor; provided, however, that in no event shall
the obligations of the Company with respect to the matters described in this
paragraph exceed $75,000 in the aggregate (provided that such amounts shall be
in addition to any expenses payable under Section 5(c) hereof).
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel to the Underwriter other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriter.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase and pay for the Firm Preferred Securities and, following
exercise of the Option granted by the Offerors in Section 1 of this Agreement,
the Option Preferred Securities, are subject, in the Underwriter's discretion,
to the accuracy of and compliance with the representations and warranties and
agreements of the Offerors herein as of the date hereof and as of the Closing
Date (or in the case of the Option Preferred Securities, if any, as of the
Option Closing Date), to the accuracy of the written statements of the Offerors
made pursuant to the provisions hereof, to the performance by the Offerors of
their covenants and obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as the Underwriter
may agree to in writing. If required, the Prospectus and any amendment or
supplement thereto shall have been timely filed in accordance with Rule 424(b)
and Rule 430A under the 1933 Act and Section 4(a) hereof. No stop order
suspending the effectiveness of the Registration Statement or any amendment or
supplement thereto shall have been issued under the 1933 Act or any applicable
state securities laws and no proceedings for that purpose shall have been
instituted or shall be pending, or, to the knowledge of the Offerors or the
Underwriter, shall be contemplated by the Commission or any state authority. Any
request on the part of the Commission or any state authority for additional
information (to be included in the Registration Statement or Prospectus or
otherwise) shall have been disclosed to the Underwriter and complied with to the
satisfaction of the Underwriter and to the satisfaction of counsel for the
Underwriter.
(b) The Underwriter shall not have advised the Company at or before
the Closing Date (and, if applicable, the Option Closing Date) that the
Registration Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of a fact which, in the Underwriter's opinion, is material or omits to state a
fact which, in the Underwriter's opinion, is material and is required to be
stated therein or is necessary to make statements
17
<PAGE> 18
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Trust Agreement, and the
Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be satisfactory
in all material respects to counsel to the Underwriter, and the Company and the
Subsidiaries shall have furnished to such counsel all documents and information
relating thereto that they may reasonably request to enable them to pass upon
such matters.
(d) Blackwell Sanders Peper Martin, LLP, counsel to the Offerors,
shall have furnished to the Underwriter its signed opinion, dated the Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to counsel to the Underwriter to the effect that:
(i) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Kansas, and is duly
registered as a bank holding company under the BHC Act. Each of the
Subsidiaries is duly incorporated or organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or
organization. Each of the Company and the Subsidiaries has full power
(corporate and otherwise) and authority to own or lease its properties and
to conduct its business as such business is described in the Prospectus and
is currently conducted in all material respects. All outstanding shares of
capital stock of the Subsidiaries have been duly authorized and validly
issued and are fully paid and nonassessable except to the extent such shares
may be deemed assessable under 12 U.S.C. Sections 55 and 1831o and, to the
best of such counsel's knowledge, except as disclosed in the Prospectus,
there are no outstanding rights, options or warrants to purchase any such
shares or securities convertible into or exchangeable for any such shares.
(ii) The capital stock, the Debentures and the Guarantee of the
Company and the equity securities of the Trust conform to the description
thereof contained in the Registration Statement and the Prospectus in all
material respects. To the best of such counsel's knowledge, the capital
stock of the Company authorized and issued as of March 31, 2000 is as set
forth under the caption "Capitalization" in the Prospectus, has been duly
authorized and validly issued, and is fully paid and nonassessable. To the
best of such counsel's knowledge, there are no outstanding rights, options
or warrants to purchase, no other outstanding securities convertible into or
exchangeable for, and no commitments, plans or arrangements to issue, any
shares of capital stock of the Company or equity securities of the Trust,
except as described in the Prospectus. The articles of incorporation of the
Company have been duly and validly amended to read as described in the Proxy
Statement, dated December 20, 1999, distributed to each of the record
shareholders of the Company. The Company's 4 for 1 stock split has been duly
and validly effected as of January 20, 2000, in accordance with applicable
Kansas law.
(iii) The issuance, sale and delivery of the Debentures in
accordance with the terms and conditions of this Agreement, the Trust
Agreement and the Indenture have been duly authorized by all necessary
actions of the Company. The Designated Preferred Securities conform to the
description thereof in the Registration Statement, the Prospectus and the
Trust Agreement. The Designated Preferred Securities have been approved for
listing on the American Stock Exchange LLC, subject to official notice of
issuance. There are no preemptive or other rights to subscribe for or to
purchase, and, other than as disclosed in the Prospectus, no restrictions
upon the voting or transfer of, any shares of capital stock or equity
securities of the Company or the Subsidiaries pursuant to the articles of
incorporation or charter, by-laws or other governing documents (including
without limitation, the Trust Agreement) of the Company or the Subsidiaries,
18
<PAGE> 19
or, to the best of such counsel's knowledge, any agreement or other
instrument to which the Company or any of the Subsidiaries is a party or by
which the Company or any of the Subsidiaries may be bound.
(iv) The Company has all requisite corporate power, to enter into
and perform its obligations under this Agreement, and this Agreement has
been duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligations of the Offerors
enforceable in accordance with its terms, except as the enforcement hereof
or thereof may be limited by general principles of equity and by bankruptcy
or other laws relating to or affecting creditors' rights generally, and
except as the indemnification and contribution provisions hereof may be
limited under applicable laws and certain remedies may not be available in
the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act, has been duly
authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.
(vi) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the benefits of
the Indenture and are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to
the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
(vii) The Expense Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding obligation of
the Company enforceable in accordance with its terms, subject to the effect
of bankruptcy, insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors generally and of
general principles of equity.
(viii) Neither the Offerors nor, to the best of such counsel's
knowledge, any of the Subsidiaries is in breach or violation of, or default
under, with or without notice or lapse of time or both, its articles of
incorporation, charter, by-laws or governing document (including without
limitation, the Trust Agreement). The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated by this
Agreement and the Trust Agreement do not and shall not conflict with, result
in the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Company or the
Subsidiaries or the Designated Preferred Securities pursuant to, or
constitute a material breach or violation of, or constitute a material
default under, with or without notice or lapse of time or both, (A) any of
the terms, provisions or conditions of the articles of incorporation,
charter, by-laws or governing document (including without limitation, the
Trust Agreement) of the Company or the Subsidiaries, or any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license or any other agreement or instrument to which the Company
or the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound and which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or the 1933 Act
Regulations or the Trust Indenture Act (or any rules or regulations
thereunder) or (B) any order, decree, judgment, franchise, license, Permit
(as defined in paragraph xvii), rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or foreign,
known to such counsel having jurisdiction over the Company or the
Subsidiaries or any of their respective
19
<PAGE> 20
properties which, in each case, is material to the Company and the
Subsidiaries on a consolidated basis. No authorization, approval, consent or
order of, or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or authority)
is required under Kansas law in connection with the transactions
contemplated by this Agreement in connection with the purchase and
distribution of the Designated Preferred Securities by the Underwriter.
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors do not have any right that, if exercised, would
require the Offerors to cause such securities to be included in the
Registration Statement or have waived such right. To the best of such
counsel's knowledge, neither the Company nor any of the Subsidiaries is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Offerors.
(x) Except as set forth in the Registration Statement and the
Prospectus, (i) no action, suit or proceeding at law or in equity is pending
or, to the best of such counsel's knowledge, threatened in writing to which
the Company or any Subsidiary is or may be a party, and (ii) no action, suit
or proceeding is pending or, to the best of such counsel's knowledge,
threatened in writing against or affecting the Company or any Subsidiary or
any of their properties, before or by any court or governmental official,
commission, board or other administrative agency, authority or body, or any
arbitrator, wherein in either situation described in (i) or (ii) above an
unfavorable decision, ruling or finding could reasonably be expected to have
a material adverse effect on the consummation of this Agreement or the
issuance and sale of the Designated Preferred Securities as contemplated
herein or the condition (financial or otherwise), earnings, business, or
results of operations of the Company and the Subsidiaries on a consolidated
basis or which is required to be disclosed in the Registration Statement or
the Prospectus and, in each case, is not so disclosed.
(xi) No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act and the Trust Indenture Act and from
the American Stock Exchange LLC (relating to the listing of the Designated
Preferred Securities) and except such as may be required under state
securities laws or Interpretations or Rules of the NASD in connection with
the purchase and distribution of the Designated Preferred Securities by the
Underwriter.
(xii) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial statements or
other financial or statistical data included therein or omitted therefrom
and Underwriter's Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the 1933 Act and the 1933 Act Regulations as of the
effective date of the Registration Statement.
(xiii) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required to
be disclosed in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not so disclosed or filed
therein for reference.
(xiv) The statements under the captions "Business," "Regulation
and Supervision," "Description of Trust Preferred Securities," "Description
of Junior Subordinated Debentures," "Description of Trust Preferred
Securities Guarantee," "Description of Expense Agreement," "Relationship
Among the Trust Preferred Securities, the Junior Subordinated Debentures and
the Trust Preferred Securities Guarantee," "Material Federal Income Tax
Consequences," and "ERISA Considerations," in the Registration Statement or
the Prospectus,
20
<PAGE> 21
insofar as such statements constitute a summary of legal and regulatory
matters, documents or instruments referred to therein, are accurate
descriptions of the matters summarized therein in all material respects and
fairly present the information called for with respect to such legal
matters, documents and instruments, other than financial and statistical
data, as to which such counsel shall not be required to express any opinion
or belief.
(xv) Such counsel has been advised by the staff of the Commission
that the Registration Statement has become effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made
within the time period required by Rule 424(b); to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop order
are pending or threatened by the Commission.
(xvi) Except as described in the Registration Statement and the
Prospectus, to the best of such counsel's knowledge, there are no
contractual encumbrances or restrictions, or material legal restrictions,
required to be described therein on the ability of the Subsidiaries to pay
dividends or make any other distributions on its capital stock or to pay
indebtedness owed to the Company.
(xvii) To the best of such counsel's knowledge, (A) the business
and operations of the Company and the Subsidiaries comply in all material
respects with all statutes, laws, rules and regulations applicable thereto
and which are material to the Offerors and the Subsidiaries on a
consolidated basis, except in those instances where non-compliance would not
materially impair the ability of the Company and the Subsidiaries to conduct
their business and would not have a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects, affairs or results
of operations of the Company and the Subsidiaries on a consolidated basis;
and (B) the Company and the Subsidiaries possess and are operating in all
material respects in compliance with the terms, provisions and conditions of
all permits, consent, licenses, franchises and governmental and regulatory
authorizations ("Permits") required to conduct their businesses as described
in the Registration Statement and the Prospectus and which are material to
the Company and the Subsidiaries on a consolidated basis, except in those
instances where the loss thereof or non-compliance therewith would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, affairs or results of operations of the
Company and the Subsidiaries on a consolidated basis; to the best of such
counsel's knowledge, all such Permits are valid and in full force and
effect, and, to the best of such counsel's knowledge, no action, suit or
proceeding is pending or threatened which may lead to the revocation,
termination, suspension or non-renewal of any such Permit, except in those
instances where the loss thereof or non-compliance therewith would not
materially impair the ability of the Company or the Subsidiaries to conduct
their businesses.
(xviii) Neither the Company nor the Trust is and, after giving
effect to the offering and sale of the Designated Preferred Securities and
the application of the proceeds thereof as described in the Prospectus,
neither the Company nor the Trust will be, an "investment company" as
defined in the Investment Company Act of 1940, as amended.
In giving the above opinion, such counsel may state (1) that, insofar
as such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation, certificates as to the
identity of any and all material contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchises, licenses or other
agreements or instruments, and all material permits, easements, consents,
licenses, franchises and government regulatory authorizations for purposes of
paragraphs (viii), (xiii) and (xvii) hereof, (2) that its opinion is limited to
matters governed by the federal laws of the United State of America and the laws
of the State of Kansas, and (3) that it has, to the extent it deems proper,
relied upon written statements or certificates of officers of departments of
various
21
<PAGE> 22
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company and the Subsidiaries, and upon certificates of
public officials. In giving such opinion, such counsel may rely upon the opinion
of Morris, Nichols, Arsht & Tunnell described herein as to matters of Delaware
law.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and the Prospectus, such counsel has
participated in conferences with certain officers and representatives of the
Offerors and with their independent public accountants and with the Underwriter
and counsel for the Underwriter, at which conferences such counsel made
inquiries of such officers, representatives and accountants and discussed the
contents of the Registration Statement and the Prospectus (without taking
further action to verify independently the statements made in the Registration
Statement and the Prospectus, and without assuming responsibility for the
accuracy or completeness of such statements, except to the extent expressly
provided above) and such counsel has no reason to believe (A) that the
Registration Statement or any amendment thereto (except for the financial
statements, notes thereto and the related schedules and other financial,
accounting and statistical data included therein or omitted therefrom or the
Underwriter's Information, as to which such counsel need express no opinion), at
the time the Registration Statement or any such amendment became effective,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (B) that the Prospectus or any amendment or supplement thereto
(except for the financial statements, the notes thereto and the related
schedules and other financial, accounting and statistical data included therein
or omitted therefrom or the Underwriter's Information, as to which such counsel
need express no opinion), at the time the Registration Statement became
effective (or, if the term "Prospectus" refers to the prospectus first filed
pursuant to Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus
was issued), at the time any such amended or supplemented Prospectus was issued,
at the Closing Date and, if applicable, the Option Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made, or (C) that there is any amendment to the Registration Statement
required to be filed that has not already been filed.
(e) Morris, Nichols, Arsht & Tunnell, special Delaware counsel to the
Offerors, shall have furnished to the Underwriter its signed opinion, dated as
of Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to such counsel, to the effect that:
(i) The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Business Trust Act and,
under the Trust Agreement and the Delaware Business Trust Act, has the
requisite business trust power and authority to conduct its business as
described in the Registration Statement and the Prospectus.
(ii) The Trust Agreement is a legal, valid and binding agreement
of the Trust and the Trustees, and is enforceable against the Company, as
depositor, and the Trustees, in accordance with their respective terms.
(iii) Under the Trust Agreement and the Delaware Business Trust
Act, the execution and delivery of this Agreement by the Trust, and the
performance by the Trust of its obligations hereunder, have been authorized
by all requisite trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been duly authorized
for issuance by the Trust Agreement and, when issued and sold in accordance
with the Trust Agreement and this Agreement, the Designated Preferred
Securities will be, subject to the qualifications set forth in paragraph (v)
below, fully paid and nonassessable beneficial interests in the assets of
the Trust and will entitle the holder thereof to the benefits of the Trust
Agreement. The certificate evidencing the
22
<PAGE> 23
Designated Preferred Securities is in due and proper form in accordance with
the Trust Agreement and complies with any applicable requirements of the
Delaware Business Trust Act.
(v) Under the Trust Agreement and the Delaware Business Trust Act,
holders of Designated Preferred Securities, as beneficial owners of the
Trust, will be entitled to the same limitation on personal liability
extended to shareholders of private, for-profit corporations organized under
the General Corporation Law of the State of Delaware. Such opinion may note
that the holders of Designated Preferred Securities may be obligated to make
payments or provide indemnity or security as set forth in the Trust
Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is not
subject to preemptive rights.
(vii) The issuance and sale by the Trust of the Designated
Preferred Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate (a) the Trust
Agreement, or (b) any applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraphs (ii) and (iv) above is
subject to the effect upon the Trust Agreement of (1) bankruptcy, insolvency,
receivership, liquidation, fraudulent conveyance, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and remedies, (2) general principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law), and (3) considerations of
public policy and the effect of applicable law relating to fiduciary duties.
(f) Lewis, Rice & Fingersh, L.C., counsel to the Underwriter, shall
have furnished to the Underwriter its signed opinion, dated the Closing Date or
the Option Closing Date, as the case may be, with respect to the sufficiency of
all corporate procedures and other legal matters relating to this Agreement, the
validity of the Designated Preferred Securities, the Registration Statement, the
Prospectus and such other related matters as the Underwriter may reasonably
request and there shall have been furnished to such counsel such documents and
other information as they may request to enable them to pass on such matters. In
giving such opinion, Lewis, Rice & Fingersh, L.C. may rely as to matters of fact
upon statements and certifications of officers of the Offerors and of other
appropriate persons and may rely as to matters of law, other than law of the
United States and the State of Missouri, upon the opinions of Blackwell Sanders
Peper Martin, LLP and Morris, Nichols, Arsht & Tunnell.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Underwriter shall have received from
Baird, Kurtz & Dobson a letter, dated the date of this Agreement and the Closing
Date (and, if applicable, the Option Closing Date), respectively, in form and
substance satisfactory to the Underwriter, confirming that they are independent
public accountants with respect to the Company and the Subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect
that:
(i) In their opinion, the consolidated financial statements and
schedules of the Company audited by them and included in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described is SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which procedures do not
constitute an
23
<PAGE> 24
audit in accordance with U.S. generally accepted auditing standards,
nothing came to the attention that caused them to believe that, if
applicable, the unaudited interim consolidated financial statements of the
Company included in the Registration Statement do not comply as to form in
all material respects with the applicable accounting requirements of the
1933 Act and 1933 Act Regulations or are not in conformity with U.S.
generally accepted accounting principles applied on a basis substantially
consistent, except as noted in the Registration Statement, with the basis
for the audited consolidated financial statements of the Company included
in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company
inspection of the minute books of the Company since the date of the latest
audited financial statements of the Company included in the Registration
Statement and the Prospectus, inquiries of officials of the Company
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock of the Company, any increase in the
consolidated debt of the Company, any decreases in consolidated total
assets or shareholders' equity of the Company or any changes, decreases
or increases in other items specified by the Underwriter, in each case
as compared with amounts shown in the latest unaudited interim
consolidated statement of financial condition of the Company included
in the Registration Statement and the Prospectus, except in each case
for changes, increases or decreases which the Registration Statement
and the Prospectus specifically discloses that have occurred or may
occur or which are described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements of the Company included in
the Registration Statement and the Prospectus to the specified date
referred to in Clause (iii)(A), there were any decreases in the
consolidated interest income, net interest income, or net income of the
Company or in the per share amount of net income of the Company or any
changes, decreases or increases in any other items specified by the
Underwriter, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length
specified by the Underwriter, except in each case for increases or
decreases which the Registration Statement and the Prospectus discloses
have occurred or may occur, or which are described in such letter.
(iv) In addition to the audit referred to in their report included
in the Registration Statement and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs (ii)
and (iii) above, they have carried out certain specified procedures, not
constituting an audit in accordance with U.S. generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Underwriter which are derived from the general
accounting records and consolidated financial statements of the Company
which appear in the Registration Statement and have compared such amounts,
percentages and financial information with the accounting records and the
material derived from such records and consolidated financial statements of
the Company and have found them to be in agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in Clauses (iii)(A)
or (iii)(B), above, or any exceptions from such agreement specified in Clause
(iv) above, it shall be a further condition to the obligations of the
Underwriter
24
<PAGE> 25
that the Underwriter shall have determined, after discussions with officers of
the Company responsible for financial and accounting matters, that such changes,
decreases, increases or exceptions as are set forth in such letters do not (x)
reflect a material adverse change in the items specified in Clause (iii)(A)
above as compared with the amounts shown in the latest audited consolidated
statement of financial condition of the Company included in the Registration
Statement, (y) reflect a material adverse change in the items specified in
Clause (iii)(B) above as compared with the corresponding periods of the prior
year or other period specified by the Underwriter, or (z) reflect a material
change in items specified in Clause (iv) above from the amounts shown in the
Preliminary Prospectus distributed by the Underwriter in connection with the
offering contemplated hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing Date,
the Underwriter shall have received certificates of the chief executive officer
and the chief financial and accounting officer of the Company, which
certificates shall be deemed to be made on behalf of the Company dated as of the
Closing Date and, if applicable, the Option Closing Date, evidencing
satisfaction of the conditions of Section 6(a) and (1) stating that (i) the
representations and warranties of the Company set forth in Section 2(a) hereof
are true and correct as of the Closing Date and, if applicable, the Option
Closing Date, and that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
such Closing Date and, if applicable, the Option Closing Date, (ii) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus and other than as referred to therein, there has not been any
material adverse change in the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company and the
Subsidiaries taken on a consolidated basis, (iii) since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
there has not been any material transaction entered into by the Company or the
Subsidiaries other than transactions in the ordinary course of business, (iv)
they have carefully examined the Registration Statement and the Prospectus as
amended or supplemented and nothing has come to their attention that would lead
them to believe that either the Registration Statement or the Prospectus, or any
amendment or supplement thereto as of their respective effective or issue dates,
contained, and the Prospectus as amended or supplemented at such Closing Date
(and, if applicable, the Option Closing Date), contains any untrue statement of
a material fact, or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (2) covering such
other matters as the Underwriter may reasonably request. The officers'
certificate of the Company shall further state that no stop order affecting the
Registration Statement is in effect or, to their knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option Closing Date,
the Underwriter shall have received a certificate of an authorized
representative of the Trust to the effect that to the best of his or her
knowledge based upon a reasonable investigation, the representations and
warranties of the Trust in this Agreement are true and correct as though made on
and as of the Closing Date (and, if applicable, the Option Closing Date), the
Trust has complied with all the agreements and satisfied all the conditions
required by this Agreement to be performed or satisfied by the Trust on or prior
to the Closing Date and since the most recent date as of which information is
given in the Prospectus, except as contemplated by the Prospectus, the Trust has
not incurred any material liability or obligation, direct or contingent, or
entered into any material transactions, other than in the ordinary course of
business, and there has not been any material adverse change in the condition
(financial or otherwise) of the Trust.
(j) On the Closing Date, the Underwriter shall have received duly
executed counterparts of the Trust Agreement, the Guarantee, the Indenture and
the Expense Agreement.
(k) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the Underwriter's
participation in such offering.
25
<PAGE> 26
(l) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to the Underwriter and counsel for the
Underwriter all such other documents, certificates and opinions as they have
reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Underwriter. The Offerors shall furnish the
Underwriter with conformed copies of such opinions, certificates, letters and
other documents as the Underwriter shall reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the Underwriter's obligations hereunder may be terminated by the Underwriter on
notice to the Company at, or at any time before, the Closing Date or the Option
Closing Date, as applicable. Any such termination shall be without liability of
the Underwriter to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors agree to jointly and severally indemnify and hold
harmless the Underwriter, each of its directors, officers and agents, and each
person, if any, who controls the Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable attorney fees and expenses),
joint or several, arising out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact made by the Company or the Trust
contained in Section 2(a) of this Agreement (or any certificate delivered by the
Company or the Trust pursuant to Sections 6(h), 6(i) or 6(l) hereof) or the
registration statement as originally filed or the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, (ii) any blue sky application or other document executed by the Company
or the Trust specifically for that purpose or based upon written information
furnished by the Company or the Trust filed in any state or other jurisdiction
in order to qualify any of the Designated Preferred Securities under the
securities laws thereof (any such application, document or information being
hereinafter referred to as a "Blue Sky Application"), (iii) any omission or
alleged omission to state a material fact in the registration statement as
originally filed or the Registration Statement, any Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application required to be stated therein or necessary to make the statements
therein not misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorney fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading or (iv) the enforcement of this indemnification provision
or the contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable legal or other expenses as incurred, but in
no event less frequently than 30 days after each invoice is submitted, incurred
by them in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Offerors shall not be liable in any such
case to the extent, but only to the extent, that any such losses, claims,
damages, liabilities and expenses arise out of or are based upon any untrue
statement or omission or allegation thereof that has been made therein or
omitted therefrom in reliance upon and in conformity with the Underwriter's
Information; provided, that the indemnification contained in this paragraph with
respect to any Preliminary Prospectus shall not inure to the benefit of the
Underwriter (or of any person controlling the Underwriter) to the extent any
such losses, claims, damages, liabilities or expenses directly results from the
fact that the Underwriter sold Designated Preferred Securities to a person to
whom there was not sent or given, at or prior to the written confirmation
26
<PAGE> 27
of such sale, a copy of the Prospectus (as amended or supplemented if any
amendments or supplements thereto shall have been furnished to the Underwriter
in sufficient time to distribute same with or prior to the written confirmation
of the sale involved), if required by law, and if such loss, claim, damage,
liability or expense would not have arisen but for the failure to give or send
such person such document. The foregoing indemnity agreement is in addition to
any liability the Company or the Trust may otherwise have to any such
indemnified party.
(b) The Underwriter agrees to indemnify and hold harmless each Offeror,
each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls an Offeror within the meaning of
the 1933 Act, to the same extent and on the same terms as required by the
foregoing indemnity from the Offerors to the Underwriter, but only with respect
to the Underwriter's Information or information related to the Underwriter
furnished in writing to an Offeror through the Underwriter by or on its behalf
expressly for use in a Blue Sky Application. The foregoing indemnity agreement
is in addition to any liability which the Underwriter may otherwise have to any
such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party under this Section 7 (as provided in the last sentence
of Section 7(a) and the last sentence of Section 7(b)), and further, shall only
relieve it from liability under this Section 7 to the extent prejudiced thereby.
Any indemnified party or any such controlling person shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or such controlling person unless (i) the employment
thereof has been specifically authorized by the indemnifying party in writing,
(ii) the indemnifying party has failed to assume the defense or to employ
counsel reasonably satisfactory to the indemnified party, or (iii) the named
parties to any such action (including any impleaded parties) include both such
indemnified party or such controlling person and the indemnifying party and such
indemnified party or such controlling person shall have been advised by such
counsel that there may be one or more legal defenses available to it that are
different from or in addition to those available to the indemnifying party (in
which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified parties and controlling persons, which firm shall be designated
in writing by the indemnified party and shall be reasonably satisfactory to the
indemnifying party. Each indemnified party and each controlling person, as a
condition of such indemnity, shall use reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. The indemnifying
party shall not be liable for any settlement of any such action effected without
its written consent, but if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified
27
<PAGE> 28
party or any person who controls such indemnified party within the meaning of
the 1933 Act is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes a release of each such indemnified
party reasonably satisfactory to each such indemnified party and each such
controlling person from all liability arising out of such claim, action, suit or
proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Sections
(a), (b) or (c) hereof in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the Underwriter
on the other from the offering of the Designated Preferred Securities, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Offerors on the one hand and the Underwriter on the other in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The benefits received by the Underwriter on the one hand and the Offerors on the
other shall be deemed to be allocated pro rata on the basis of the total
underwriting discounts, commissions and compensation received by the Underwriter
relative to the total net proceeds from the offering of the Designated Preferred
Securities (before deducting expenses) received by the Offerors, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault
of the Offerors on the one hand and of the Underwriter on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Offerors or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. Each
Offeror and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities and
expenses referred to in the first sentence of this Section 7 shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, the Underwriter shall not be required to contribute any amount in
excess of the amount by which the total price at which the Designated Preferred
Securities underwritten by the Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages that the Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person who controls the
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as the Underwriter, and each person who controls an Offeror within
the meaning of the 1933 Act, each officer and trustee of an Offeror who signed
the Registration Statement and each director of an Offeror shall have the same
rights to contribution as the Offerors subject in each case to the preceding
paragraph. The obligations of the Offerors under this Section 7 shall be in
addition to any liability which the Offerors may otherwise have and the
obligations of the Underwriter under this paragraph (d) shall be in addition to
any liability that the Underwriter may otherwise have.
(e) The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Offerors set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of the Underwriter or any person
controlling the Underwriter or by or on behalf of the Offerors, or such
directors, trustees or officers (or any
28
<PAGE> 29
person controlling an Offeror), (ii) acceptance of any Designated Preferred
Securities and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor of the Underwriter or of an Offeror, such directors,
trustees or officers (or of any person controlling the Underwriter or an
Offeror) shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7; provided, however, that this Section 7(f) shall not obligate the
Offerors to make indemnification payments, in the aggregate, that exceed the
amount that the Offerors would otherwise be obligated to pay under this Section
7.
8. TERMINATION. The Underwriter shall have the right to terminate this
Agreement at any time at or prior to the Closing Date or, with respect to the
Underwriter's obligation to purchase the Option Preferred Securities, at any
time at or prior to the Option Closing Date, without liability on the part of
the Underwriter to the Offerors, if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Company or any of the Subsidiaries shall have sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree which in the judgment of the
Underwriter materially impairs the investment quality of the Designated
Preferred Securities;
(c) There has been since the respective dates as of which information
is given in the Registration Statement or the Prospectus, any materially adverse
change in, or any development which is reasonably likely to have a material
adverse effect on, the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis, whether or not arising in the ordinary course of
business;
(d) There has occurred any outbreak of hostilities or other calamity or
crisis or material change in general economic, political or financial
conditions, or internal conditions, the effect of which on the financial markets
of the United States is such as to make it, in the Underwriter's reasonable
judgment, impracticable to market the Designated Preferred Securities or enforce
contracts for the sale of the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq Stock Market's National Market shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority;
(f) A banking moratorium shall have been declared by either federal or
Kansas authorities; or
(g) Any action shall have been taken by any government in respect of
its monetary affairs which, in the Underwriter's reasonable judgment, has a
material adverse effect on the United States securities markets.
The Offerors shall have the right to terminate this Agreement at any
time at or prior to the Closing Date or, with respect to the sale of the Option
Preferred Securities, at any time at or prior to the
29
<PAGE> 30
Option Closing Date, if a Tax Event, Investment Company Event or a Capital
Treatment Event, as such terms are defined in the Registration Statement, shall
have occurred.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriter except as
provided in Sections 5 and 7 hereof.
9. EFFECTIVE DATE OF AGREEMENT. If the Registration Statement is not
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Underwriter when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Underwriter shall
release the Designated Preferred Securities for initial public offering. The
Underwriter shall notify the Offerors immediately after it has taken any action
which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Offerors, by notifying the Underwriter, or by the
Underwriter, by notifying either Offeror, except that the provisions of Sections
5 and 7 shall at all times be effective.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. The
representations, warranties, indemnities, agreements and other statements of the
Offerors and their officers and trustees set forth in or made pursuant to this
Agreement and the agreements of the Underwriter contained in Section 7 hereof
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Offerors or controlling persons of
either Offeror, or by or on behalf of the Underwriter or controlling persons of
the Underwriter or any termination or cancellation of this Agreement and shall
survive delivery of and payment for the Designated Preferred Securities.
11. NOTICES. Except as otherwise provided in this Agreement, all notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if delivered by hand, mailed by registered or certified
mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to either Offeror shall be sent to:
11935 Riley, Overland Park, Kansas 66225-6128, Attention: Robert D. Regnier,
Chief Executive Officer (with a copy to Blackwell Sanders Peper Martin, 2300
Main Street, Suite 1000, Kansas City, Missouri 64108, Attention: Steven F.
Carman, Esq.); and notices to the Underwriter shall be sent to Stifel, Nicolaus
& Company, Incorporated, 501 North Broadway, Ninth Floor, St. Louis, Missouri
63102, Attention: Rick E. Maples (with a copy to Lewis, Rice & Fingersh, L.C.,
500 North Broadway, Suite 2000, St. Louis, Missouri 63102, Attention: Thomas C.
Erb, Esq.).
12. PARTIES. The Agreement herein set forth is made solely for the benefit
of the Underwriter and the Offerors and, to the extent expressed, directors,
trustees and officers of the Offerors, any person controlling the Offerors or
the Underwriter, and their respective successors and assigns. No other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, in its status as such
purchaser, from the Underwriter of the Designated Preferred Securities.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Missouri, without giving effect to the choice of law or conflicts of
law principles thereof.
30
<PAGE> 31
14. FACSIMILE EXECUTION AND COUNTERPARTS. This Agreement may be executed by
facsimile and in one or more counterparts, and when a counterpart has been
executed by each party hereto all such counterparts taken together shall
constitute one and the same Agreement.
Signatures appear on the following page
31
<PAGE> 32
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this shall become a
binding agreement between the Company, the Trust and you in accordance with its
terms.
Very truly yours,
BLUE VALLEY BAN CORP.
By:
-----------------------------------
Print Name:
---------------------------
Its:
----------------------------------
BVBC CAPITAL TRUST I
By:
-----------------------------------
Print Name:
---------------------------
Its: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of .
----------------
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:
-------------------------------------
Print Name:
-----------------------------
Its:
------------------------------------
32
<PAGE> 33
EXHIBIT A
SUBSIDIARIES
Bank of Blue Valley
Blue Valley Building Corp.
Blue Valley Investment Corporation
BVBC Capital Trust I
