Exhibit 10.1
PLACEMENT AGREEMENT
AMONG
IBERIABANK CORPORATION,
IBERIABANK STATUTORY TRUST III
AND
SUNTRUST CAPITAL MARKETS, INC.
Dated as of September 20, 2004
IBERIABANK Corporation
$10,000,000 Preferred Securities
Floating Rate Preferred Securities
(Liquidation Amount $1,000 per Preferred
Security)
PLACEMENT AGREEMENT
September 20, 2004
SunTrust Capital Markets, Inc.
303 Peachtree Street, N.E.
24th Floor, Mail Code 3950
Atlanta, Georgia 30308
Ladies and Gentlemen:
IBERIABANK Corporation, a Louisiana
corporation (the “Company”), and its financing
subsidiary, IBERIABANK Statutory Trust III, a Delaware statutory
trust (the “Trust,” and hereinafter together with the
Company, the “Offerors”), hereby confirm their
agreement (this “Agreement”) with you as placement
agent (the “Placement Agent”), as follows:
Section 1. Issuance and Sale of
Securities .
1.1 Introduction . The
Offerors propose to issue and sell at the Closing (as defined in
Section 2.3.1 hereof) TEN MILLION ($10,000,000) DOLLARS of the
Trust’s Floating Rate Preferred Securities, with a
liquidation amount of $1,000 per preferred security, bearing a
variable rate of interest per annum, reset quarterly, equal to
LIBOR (as defined in the Indenture (as defined below)) plus 2.00%
(the “Preferred Securities”), to STI Investment
Management, Inc., a Delaware corporation (the
“Purchaser”), pursuant to the terms of the Preferred
Securities Subscription Agreement entered into, or to be entered
into on or prior to the Closing Date (as defined in Section
2.3.1 hereof), between the Offerors and the Purchaser (the
“Subscription Agreement”), the form of which is
attached hereto as Exhibit A and incorporated herein by this
reference.
1.2 Operative Agreements .
The Preferred Securities shall be fully and unconditionally
guaranteed on a subordinated basis by the Company with respect to
distributions and amounts payable upon liquidation, redemption or
repayment (the “Guarantee”) pursuant and subject to the
Guarantee Agreement (the “Guarantee Agreement”), to be
dated as of the Closing Date and executed and delivered by the
Company and Wilmington Trust Company, as guarantee trustee (the
“Guarantee Trustee”), for the benefit from time to time
of the holders of the Preferred Securities. The entire proceeds
from the sale by the Trust to the holders of the Preferred
Securities shall be combined with the entire proceeds from the sale
by the Trust to the Company of its common securities (the
“Common Securities”), and shall be used by the Trust
to
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purchase TEN MILLION THREE HUNDRED TEN THOUSAND
($10,310,000) DOLLARS in principal amount of the Floating Rate
Junior Subordinated Notes (the “Junior Subordinated
Notes”) of the Company. The Preferred Securities and the
Common Securities of the Trust shall be issued pursuant to an
Amended and Restated Trust Agreement among Wilmington Trust
Company, as property trustee (the “Property Trustee”),
Wilmington Trust Company, as Delaware trustee (the “Delaware
Trustee”), the Administrative Trustees named therein and the
Company, to be dated as of the Closing Date and in substantially
the form heretofore delivered to the Placement Agent (the
“Trust Agreement”). The Junior Subordinated Notes shall
be issued pursuant to an Indenture (the “Indenture”),
to be dated as of the Closing Date, between the Company and
Wilmington Trust Company, as indenture trustee (the
“Indenture Trustee”). The documents identified in this
Section 1.2 and in Section 1.1 are referred to herein
as the “Operative Documents.” The Preferred Securities,
the Common Securities and the Junior Subordinated Notes are
collectively referred to as the “Securities.” All other
capitalized terms used but not defined in this Agreement shall have
the meanings ascribed to them in the Indenture.
1.3 Rights of Purchaser . The
Preferred Securities shall be offered and sold by the Trust
directly to the Purchaser without registration of any of the
Preferred Securities, the Junior Subordinated Notes or the
Guarantee under the Securities Act of 1933, as amended (the
“Securities Act”), or any other applicable securities
laws in reliance upon exemptions from the registration requirements
of the Securities Act and other applicable securities laws. The
Offerors agree that this Agreement shall be incorporated by
reference into the Subscription Agreement and the Purchaser shall
be entitled to each of the benefits of the Placement Agent and the
Purchaser under this Agreement and shall be entitled to enforce
obligations of the Offerors under this Agreement as fully as if the
Purchaser were a party to this Agreement. The Offerors and the
Placement Agent have entered into this Agreement to set forth their
understanding as to their relationship and their respective rights,
duties and obligations.
1.4 Legends . Upon original
issuance thereof, and until such time as the same is no longer
required under the applicable requirements of the Securities Act,
the Preferred Securities and Junior Subordinated Notes certificates
shall each contain a legend as required pursuant to any of the
Operative Documents.
Section 2. Purchase of Preferred
Securities .
2.1 Exclusive Rights; Purchase
Price . From the date hereof until the Closing Date (which date
may be extended by mutual agreement of the Offerors and the
Placement Agent), the Offerors hereby grant to the Placement Agent
the exclusive right to arrange for the sale to the Purchaser of the
Preferred Securities at a purchase price equal to $1,000 per
Preferred Security. The aggregate purchase price shall be TEN
MILLION ($10,000,000) DOLLARS (the “Purchase Price”),
which Purchase Price is equal to 100% of the stated liquidation
amount of the Preferred Securities.
2.2 Subscription . The
Offerors hereby agree to evidence their acceptance of the
subscription by countersigning a copy of the Subscription Agreement
and returning the same to the Placement Agent.
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2.3 Closing and Delivery of
Payment .
2.3.1 Closing; Closing Date .
The closing (the “Closing”) for the sale and purchase
of the Preferred Securities by the Offerors to the Purchaser shall
occur at the offices of Powell, Goldstein, Frazer & Murphy LLP,
or such other place as the parties hereto shall agree at 11:00 a.m.
(eastern time) on September 20, 2004, or such other later date as
the parties may designate (such date and time of delivery and
payment for the Preferred Securities being herein called the
“Closing Date”). The Preferred Securities shall be
transferred and delivered to the Purchaser against the payment of
the Purchase Price (as defined in the Subscription Agreement) to
the Offerors in immediately available funds on the Closing Date to
a U.S. account designated in writing by the Company at least two
(2) business days prior to the Closing Date.
2.3.2 Delivery . Delivery of
the Preferred Securities shall be made at such location, and in
such names and denominations, as the Purchaser shall designate at
least two (2) business days in advance of the Closing Date. The
Company and the Trust agree to have the Preferred Securities
available for inspection and checking by the Purchaser in Atlanta,
Georgia not later than 1:00 P.M., eastern time, on the business day
prior to the Closing Date.
2.4 Placement Agent’s Fees
and Expenses .
2.4.1 Use of Proceeds; Placement
Agent’s Compensation . The Offerors shall use the
proceeds from the sale of the Preferred Securities, together with
the proceeds from the sale of the Common Securities, to purchase
the Junior Subordinated Notes. The Company shall pay to the
Placement Agent at the Closing a fee in cash equal to 0.00% of the
aggregate dollar amount of the Preferred Securities purchased by
the Purchaser. The Company shall not pay a commission on the sale
of the Junior Subordinated Notes to the Trust.
2.4.2 Costs and Expenses .
The Placement Agent shall pay, on behalf of the Company or the
Trust, as applicable: (i) up to $10,000 in legal fees and
disbursements of counsel to the Company; (ii) the initial and
annual administrative fees of the Guarantee Trustee, Property
Trustee, the Delaware Trustee and any other trustee or paying agent
appointed under the Operative Documents (collectively, the
“Trustee”) for the life of the Preferred Securities;
(iii) the legal fees and disbursements of special Delaware counsel
to the Trust and of counsel to the Trustee relating to the
formation of the Trust and the transactions contemplated by this
Agreement. The initial and administrative fees will be fixed for
the life of the trust so long as there is no event of default or
other event in which the Trustee has the right to retain counsel.
In such a case, the reasonable fees and expenses of Trustee’s
counsel will be billed to the Company at the Trustee’s cost.
The Company hereby covenants and agrees that it shall pay or cause
to be paid (directly or by reimbursement) any other costs and
expenses set forth in the Summary of Proposed Terms and Conditions
enclosed with the Letter of Intent dated August 6, 2004, between
the Company and the Placement Agent.
2.4.3 Reimbursement of
Expenses . If the sale of the Preferred Securities provided for
in this Agreement is not consummated because any condition set
forth in Section 3 to be satisfied by either the Company or
the Trust is not satisfied, because this Agreement is terminated
pursuant to Section 10 or because of any failure, refusal or
inability on the part of the Company or the Trust to perform all
obligations and satisfy all conditions on its part to be performed
or
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satisfied hereunder other than by a reason of a
default by this Agreement, the Company will reimburse the Placement
Agent upon demand for all reasonable out-of-pocket expenses
(including the fees and expenses of each of the Placement
Agent’s or Purchaser’s counsel) that shall have been
incurred by the Placement Agent or Purchaser in connection with the
proposed purchase and sale of the Preferred Securities. The Company
shall not in any event be liable to the Placement Agent or
Purchaser for the loss of anticipated profits from the transactions
contemplated by this Agreement.
Section 3. Closing Conditions . The
obligations of the parties under this Agreement on the Closing Date
are subject to the following conditions:
3.1 Accuracy of Representations
and Warranties . The representations and warranties contained
in this Agreement, and the statements of the Offerors made in any
certificates pursuant to this Agreement, shall be accurate as of
the date of delivery of the Preferred Securities:
3.2 Opinions of Counsel . On
the Closing Date, the Placement Agent shall have received the
following favorable opinions, each dated as of the Closing Date:
(a) from Cozen O’Conner, counsel for the Offerors, addressed
to the Purchaser, the Placement Agent and the Indenture Trustee in
substantially the form set forth on Exhibit B-1 attached
hereto and incorporated herein by this reference, (b) from Powell,
Goldstein, Frazer & Murphy LLP, special tax counsel for the
Placement Agent and Purchaser, addressed to the Placement Agent and
Purchaser in substantially the form set forth on Exhibit B-2
attached hereto and incorporated herein by this reference, (c) from
Richards Layton & Finger, P.A., special Delaware counsel to the
Placement Agent and Purchaser and addressed to the Purchaser, the
Placement Agent and the Offerors, in substantially the form set
forth on Exhibit B-3 attached hereto and incorporated herein
by this reference, and (d) from Richards Layton & Finger, P.A.,
special counsel to the Indenture Trustee, the Property Trustee and
the Guarantee Trustee and addressed to the Purchaser, the Placement
Agent and the Offerors, in substantially the form set forth on
Exhibit B-4 attached hereto and incorporated herein by this
reference. Each opinion addressed to the Purchaser shall state that
the first entity, if any, to which the Purchaser transfers any of
the Preferred Securities (each, a “Subsequent
Purchaser”) shall be entitled to rely on such
opinion.
3.3 Officer’s
Certificate . The Company shall have furnished to the Placement
Agent and the Purchaser a certificate of the Company, signed by the
Chief Executive Officer, President or an Executive Vice President
and by the Chief Financial Officer, Treasurer or Assistant
Treasurer of the Company, and the Trust shall have furnished to the
Placement Agent and the Purchaser a certificate of the Trust,
signed by an Administrative Trustee of the Trust, in each case
dated the Closing Date, and, in the case of the Company, as to
3.3.1 and 3.3.2 below and, in the case of the Trust,
as to 3.3.1 below:
3.3.1 the representations and
warranties in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date,
and the Company and the Trust have complied with all the agreements
and satisfied all the conditions on either of their part to be
performed or satisfied at or prior to the Closing Date;
and
3.3.2 since the date of the Interim
Financial Statements (as defined below), there has been no material
adverse change in the condition (financial or other), earnings,
business,
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prospects or assets of the Company and its
subsidiaries, whether or not arising from transactions occurring in
the ordinary course of business.
3.4 No Subsequent Change .
Subsequent to the execution of this Agreement, there shall not have
been any change, or any development involving a prospective change,
in or affecting the condition (financial or other), earnings,
business, prospects or assets of the Company and its subsidiaries,
whether or not occurring in the ordinary course of business, the
effect of which is, in the Placement Agent’s or
Purchaser’s judgment, so material and adverse as to make it
impractical or inadvisable to proceed with the purchase of the
Preferred Securities.
3.5 Delivery of Operative
Documents . Each of the Operative Documents shall have been
duly authorized, executed and delivered by each party thereto, and
copies thereof shall have been delivered to the Company, the Trust,
the Purchaser and the Placement Agent.
3.6 Consents and Permits .
The Company and the Trust shall have received all consents, permits
and other authorizations, and made all such filings and
declarations, as may be required from any person or entity pursuant
to any law, statute, regulation or rule (federal, state, local and
foreign), or pursuant to any agreement, order or decree to which
the Company or the Trust is a party or to which either is subject,
in connection with the transactions contemplated by this
Agreement.
3.7 Information . Prior to or
on the Closing Date, the Offerors shall have furnished to the
Placement Agent, the Purchaser and their respective counsel such
further information, certificates, opinions and documents as the
Placement Agent, Purchaser or their respective counsel may
reasonably request.
If any of the conditions specified
in this Section 3 shall not have been fulfilled when and as
required in this Agreement, or if any of the opinions, certificates
and documents mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the
Placement Agent, the Purchaser or their respective counsel, this
Agreement and all the Placement Agent’s obligations hereunder
may be canceled at, or any time prior to, the Closing Date by the
Placement Agent. Notice of such cancellation shall be given to the
Offerors in writing or by telephone or facsimile confirmed in
writing.
Each certificate signed by any
trustee of the Trust or any officer of the Company and delivered to
the Placement Agent, Purchaser or their respective counsel in
connection with the Operative Documents and the transactions
contemplated hereby and thereby shall be deemed to be a
representation and warranty of the Trust and/or the Company, as the
case may be, and not by such trustee or officer in any individual
capacity.
Section 4. Representations and Warranties of
the Offerors . The Offerors jointly and severally represent and
warrant to the Placement Agent and the Purchaser as of the date
hereof and as of the Closing Date as follows:
4.1 Representations and
Warranties of the Company and the Trust .
(a) Neither the Company nor the
Trust, nor any of their “Affiliates” (as defined in
Rule 501(b) of Regulation D under the Securities Act
(“Regulation D”)), nor any
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person acting on any of their behalf
(except for the Placement Agent, as to which neither the Company
nor the Trust make any representation) has, directly or indirectly,
made offers or sales of any security, or solicited offers to buy
any security, under circumstances that would require the
registration under the Securities Act of any of the
Securities.
(b) Neither the Company nor the
Trust, nor any of their Affiliates, nor any person acting on its or
their behalf (except for the Placement Agent, as to which neither
the Company nor the Trust make any representation) has (i) offered
for sale or solicited offers to purchase the Securities, (ii)
engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with any offer
or sale of any of the Securities, or (iii) engaged in any
“directed selling efforts” within the meaning of
Regulation S under the Securities Act (“Regulation S”)
with respect to the Securities.
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(c) The Securities (i) are not and
have not been listed on a national securities exchange registered
under section 6 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), or quoted on a U.S. automated
interdealer quotation system and (ii) are not of an open-end
investment company, unit investment trust or face-amount
certificate company that are, or are required to be, registered
under section 8 of the Investment Company Act of 1940, as amended
(the “Investment Company Act”), and the Securities
otherwise satisfy the eligibility requirements of Rule 144A(d)(3)
promulgated pursuant to the Securities Act (“Rule
144A(d)(3)”).
(d) Neither the Company nor the
Trust is, and, immediately following consummation of the
transactions contemplated hereby and the application of the net
proceeds therefrom, neither the Company nor the Trust will be, an
“investment company” or an entity
“controlled” by an “investment company,” in
each case within the meaning of section 3(a) of the Investment
Company Act.
(e) Neither the Company nor the
Trust has paid or agreed to pay to any person or entity, directly
or indirectly, any fees or other compensation for soliciting
another to purchase any of the Securities, except for the
Commission.
4.2 Standing and Qualification of
the Trust . The Trust has been duly created and is validly
existing in good standing as a statutory trust under the Delaware
Statutory Trust Act, 12 Del. C. §3801, et seq . (the
“Statutory Trust Act”) with all requisite power and
authority to own property and to conduct the business it transacts
and proposes to transact and to enter into and perform its
obligations under the Operative Documents to which it is a party.
The Trust is duly qualified to transact business as a foreign
entity and is in good standing in each jurisdiction in which such
qualification is necessary, except where the failure to so qualify
or be in good standing would not have a material adverse effect on
the condition (financial or otherwise), earnings, business,
prospects or assets of the Trust, whether or not occurring in the
ordinary course of business. The Trust is not a party to, or
otherwise bound by, any agreement other than the Operative
Documents. The Trust is, and under current law will continue to be,
classified for federal income tax purposes as a grantor trust and
not as an association or publicly traded partnership taxable as a
corporation.
4.3 Trust Agreement . The
Trust Agreement has been duly authorized by the Company and, on the
Closing Date specified in Section 2.3.1 , will have been
duly executed and delivered by the Company and the Administrative
Trustees of the Trust, and, assuming due authorization, execution
and delivery by the Property Trustee and the Delaware Trustee, will
be a legal, valid and binding obligation of the Company and the
Administrative Trustees, enforceable against them in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors’ rights generally and to general principles of
equity. Each of the Administrative Trustees of the Trust is an
employee of the Company or one of its subsidiary banks and has been
duly authorized by the Company to execute and deliver the Trust
Agreement. To the knowledge of the Administrative Trustees, the
Trust is not in violation of any provision of the Statutory Trust
Act.
4.4 Guarantee Agreement and the
Indenture . Each of the Guarantee and the Indenture has been
duly authorized by the Company and, on the Closing Date, will have
been duly
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executed and delivered by the Company, and,
assuming due authorization, execution and delivery by the Guarantee
Trustee, in the case of the Guarantee, and by the Indenture
Trustee, in the case of the Indenture, will be a legal, valid and
binding obligation of the Company enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditors’ rights generally and to general
principles of equity.
4.5 Preferred Securities and
Common Securities . The Preferred Securities and the Common
Securities have been duly authorized by the Trust and, when issued
and delivered against payment therefor on the Closing Date to the
Purchaser in accordance with this Agreement and the Subscription
Agreement, in the case of the Preferred Securities, and to the
Company in accordance with the Common Securities Subscription
Agreement between the Company and the Trust, dated as of the
Closing Date, in the case of the Common Securities, will be validly
issued, fully paid and nonassessable and will represent undivided
beneficial interests in the assets of the Trust entitled to the
benefits of the Trust Agreement, enforceable against the Trust in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditors’ rights generally and to general
principles of equity. The issuance of the Securities is not subject
to preemptive or other similar rights. On the Closing Date, all of
the issued and outstanding Common Securities will be directly owned
by the Company free and clear of any pledge, security interest,
claim, lien or other encumbrance (each, a
“Lien”).
4.6 Junior Subordinated Notes
. The Junior Subordinated Notes have been duly authorized by the
Company and, on the Closing Date, will have been duly executed and
delivered to the Indenture Trustee for authentication in accordance
with the Indenture and, when authenticated in the manner provided
for in the Indenture and delivered to the Trust against payment
therefor in accordance with the Junior Subordinated Note
Subscription Agreement between the Company and the Trust, dated as
of the Closing Date, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture enforceable against the Company in accordance with their
terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors’ rights generally and to general principles of
equity.
4.7 Placement Agreement .
This Agreement has been duly authorized, executed and delivered by
the Company and the Trust and constitutes the legal, valid and
binding obligation of the Company and the Trust, enforceable
against the Company and the Trust in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors’ rights
generally and to general principles of equity.
4.8 Defaults . Neither the
issue and sale of the Common Securities, the Preferred Securities
or the Junior Subordinated Notes, nor the purchase of the Junior
Subordinated Notes by the Trust, the execution and delivery of and
compliance with the Operative Documents by the Company or the
Trust, the consummation of the transactions contemplated herein or
therein, or the use of the proceeds therefrom, (i) will conflict
with or constitute a breach of, or a default under, the Trust
Agreement or the charter or bylaws of the Company or any subsidiary
of the Company or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, governmental
authority, agency or instrumentality or court, domestic or
foreign,
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having jurisdiction over the Trust, or the
Company or any of its subsidiaries, or their respective properties
or assets (collectively, “Governmental Entities”), (ii)
will conflict with or constitute a violation or breach of, or a
default or Repayment Event (as defined below) under, or result in
the creation or imposition of any Lien upon any property or assets
of the Trust, the Company or any of the Company’s
subsidiaries pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which
(A) the Trust, the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or (B) any of the property
or assets of any of them is subject, or any judgment, order or
decree of any court, governmental authority or arbitrator, except,
in the case of this clause (ii), for such conflicts, breaches,
violations, defaults, Repayment Events (as defined below) or Liens
which (X) would not, singly or in the aggregate, adversely affect
the consummation of the transactions contemplated by the Operative
Documents and (Y) would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
earnings, business, liabilities, prospects and assets (taken as a
whole) or business prospects of the Company and its subsidiaries
taken as a whole, whether or not occurring in the ordinary course
of business (a “Material Adverse Effect”) or (iii)
require the consent, approval, authorization or order of any court
or Governmental Entity, other than such as have been previously
obtained. As used herein, a “Repayment Event” means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Trust or the Company or any of its subsidiaries prior to its
scheduled maturity.
4.9 Organization, Standing and
Qualification of the Company . The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of Louisiana, with all requisite corporate
power and authority to own, lease and operate its properties and
conduct the business it transacts and proposes to transact, and is
duly qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its
activities requires such qualification, except where the failure of
the Company to be so qualified would not, singly or in the
aggregate, have a Material Adverse Effect.
4.10 Subsidiaries of the
Company . Each of the Company’s significant subsidiaries
listed in Schedule 1 (as defined in Section 1-02 of
Regulation S-X under the Securities Act) (the
“Subsidiaries”) has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction in
which it is chartered or organized, with all requisite power and
authority to own its properties and conduct the business it
transacts and proposes to transact. Each Subsidiary is duly
qualified to transact business and is in good standing as a foreign
entity in each jurisdiction where the nature of its activities
requires such qualification, except where the failure of any such
Subsidiary to be so qualified would not, singly or in the
aggregate, have a Material Adverse Effect.
4.11 Government Licenses and
Regulatory Compliance . Each of the Trust, the Company and each
of its Subsidiaries hold all necessary approvals, authorizations,
orders, licenses, certificates and permits (collectively,
“Government Licenses”) of and from Governmental
Entities necessary to conduct its respective business as now being
conducted, and neither the Trust, the Company nor any of the
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Government License, except
where the failure to be so licensed or approved or the receipt of
an unfavorable decision, ruling
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or finding, would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Government
Licenses are valid and in full force and effect, except where the
invalidity or the failure of such Government Licenses to be in full
force and effect, would not, singly or in the aggregate, have a
Material Adverse Effect; and the Company and the Subsidiaries are
in compliance with all applicable laws, rules, regulations,
judgments, orders, decrees and consents, except where the failure
to be in compliance would not, singly or in the aggregate, have a
Material Adverse Effect.
4.12 Property . Each of the
Company and its subsidiaries owns or leases all such properties as
are necessary to the conduct of its operations as presently
conducted and has good and marketable title to all of its
respective real and personal properties, in each case free and
clear of all Liens and defects, except for those that would not,
singly or in the aggregate, have a Material Adverse Effect; and all
of the leases and subleases under which the Trust, the Company or
any subsidiary of the Company holds properties are in full force
and effect, except where the failure of such leases and subleases
to be in full force and effect would not, singly or in the
aggregate, have a Material Adverse Effect and none of the Trust,
the Company or any subsidiary of the Company has any notice of any
claim of any sort that has been asserted by anyone adverse to the
rights of the Trust, the Company or any subsidiary of the Company
under any such leases or subleases, or affecting or questioning the
rights of such entity to the continued possession of the leased or
subleased premises under any such lease or sublease, except for
such claims that would not, singly or in the aggregate, have a
Material Adverse Effect.
4.13 Conflicts, Authorizations
and Approvals . Neither the Company nor any of its Subsidiaries
is (i) in violation of its respective charter, bylaws or similar
organizational documents or (ii) in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which either the
Company or any such Subsidiary is a party or by which it or any of
them may be bound or to which any of the property or assets of any
of them is subject, except, in the case of clause (ii), where such
default would not, singly or in the aggregate, have a Material
Adverse Effect. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any Governmental Entity, other than those that have been made or
obtained, is necessary or required for the performance by the Trust
or the Company of their respective obligations under the Operative
Documents, as applicable, or the consummation by the Trust and the
Company of the transactions contemplated by the Operative
Documents.
4.14 Holding Company Registration
and Deposit Insurance . The Company is duly registered (i) as a
bank holding company under the Bank Holding Company Act of 1956, as
amended (the “ Bank Holding Company Act ”), and
the regulations of the Board of Governors of the Federal Reserve
System (the “ Federal Reserve ”), and the
deposit accounts of the Company’s subsidiary depository
institution are insured by the Federal Deposit Insurance
Corporation (“FDIC”) to the fullest extent permitted by
law and the rules and regulations of the FDIC, and no proceeding
for the termination of such insurance are pending or, to the
knowledge of the Company, threatened.
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4.15 Financial Statements
.
(a) The audited consolidated
financial statements (including the notes thereto) and schedules of
the Company and its consolidated subsidiaries at and for the fiscal
year ended December 31, 2003 (the “Financial
Statements”) and the interim unaudited consolidated financial
statements of the Company and its consolidated subsidiaries at and
for the quarter ended June 30, 2004 (the “Interim Financial
Statements”) provided to the Placement Agent are the most
recently available audited and unaudited consolidated financial
statements of the Company and its consolidated subsidiaries,
respectively, and fairly present in all material respects, in
accordance with U.S. generally accepted accounting principles
(“GAAP”), the financial position of the Company and its
consolidated subsidiaries, and the results of operations and
changes in financial condition as of the dates and for the periods
therein specified, subject, in the case of Interim Financial
Statements, to year-end adjustments (which are expected to consist
solely of normal recurring adjustments). Such consolidated
financial statements and schedules have been prepared in accordance
with GAAP consistently applied throughout the periods involved
(except as otherwise noted therein).
(b) The Company’s report on
FRY-9C, dated June 30, 2004 (the “FRY-9C”), provided to
the Placement Agent is the most recently available such report, and
the information therein fairly presents in all material respects
the financial position of the Company and its
subsidiaries.
(c) Since the respective dates of
the Financial Statements, Interim Financial Statements and the
FRY-9C, there has not been any material adverse change or
development with respect to the condition (financial or otherwise),
earnings, business, assets or business prospects of the Company and
its subsidiaries, taken as a whole.
(d) The accountants of the Company
who certified the Financial Statements are independent public
accountants of the Company and its subsidiaries within the meaning
of the Securities Act and the rules and regulations of the
Securities and Exchange Commission (“SEC”)
thereunder.
4.16 Regulatory Enforcement
Matters . None of the Trust, the Company nor any of its
Subsidiaries, nor any of their respective officers, directors,
employees or representatives, is subject or is party to, or has
received any notice from any Regulatory Agency (as defined below)
that any of them will become subject or party to any investigation
with respect to, any cease-and-desist order, agreement, civil
monetary penalty, consent agreement, memorandum of understanding or
other regulatory enforcement action, proceeding or order with or
by, or is a party to any commitment letter or similar undertaking
to, or is subject to any directive by, or has been a recipient of
any supervisory letter from, or has adopted any board resolutions
at the request or suggestion of, any Regulatory Agency that, in any
such case, currently restricts in any material respect the conduct
of their business or that in any material manner relates to their
capital adequacy, their credit policies, their management or their
business (each, a “Regulatory Action”), nor has the
Trust, the Company or any of its Subsidiaries been advised by any
Regulatory Agency that it is considering issuing or requesting any
such Regulatory Action; and there is no unresolved violation,
criticism or exception by any Regulatory Agency with respect to any
report or statement relating to any examinations of the Trust, the
Company or any of its Subsidiaries, except where such unresolved
violation, criticism or exception would not, singly or in the
aggregate, have a Material Adverse Effect. As used herein, the term
“Regulatory Agency”
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means any federal or state agency charged with
the supervision or regulation of depositary institutions or holding
companies of depositary institutions, or engaged in the insurance
of depositary institution deposits, or any court, administrative
agency or commission or other governmental agency, authority or
instrumentality having supervisory or regulatory authority with
respect to the Trust, the Company or any of its
Subsidiaries.
4.17 No Undisclosed
Liabilities . None of the Trust, the Company nor any of its
Subsidiaries has any material liability, whether known or unknown,
whether asserted or unasserted, whether absolute or contingent,
whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due, including any liability for taxes
(and there is no past or present fact, situation, circumstance,
condition or other basis for any present or future action, suit,
proceeding, hearing, charge, complaint, claim or demand against the
Company or its Subsidiaries that could give rise to any such
liability), except for (i) liabilities set forth in the Financial
Statements or the Interim Financial Statements and (ii) normal
fluctuations in the amount of the liabilities referred to in clause
(i) above occurring in the ordinary course of business of the
Trust, the Company and all of its Subsidiaries since the date of
the most recent balance sheet included in such Financial
Statements.
4.18 Litigation . There is no
action, suit or proceeding before or by any Governmental Entity,
arbitrator or court, domestic or foreign, now pending or, to the
knowledge of the Company or the Trust, threatened against or
affecting the Trust or the Company or any of the Subsidiaries,
except for such actions, suits or proceedings that, if adversely
determined, could not, singly or in the aggregate, reasonably be
expected to materially adversely affect the consummation of the
transactions contemplated by the Operative Documents or to have a
Material Adverse Effect.
4.19 Deferral of Interest
Payments on Junior Subordinated Notes . The Company has no
present intention to exercise its option to defer payments of
interest on the Junior Subordinated Notes as provided in the
Indenture. The Company believes that the likelihood that it would
exercise its rights to defer payments of interest on the Junior
Subordinated Notes as provided in the Indenture at any time during
which the Junior Subordinated Notes are outstanding is remote
because of the restrictions that would be imposed on the
Company’s ability to declare or pay dividends or
distributions on, or to redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company’s
capital stock and on the Company’s ability to make any
payments of principal, interest or premium on, or repay, repurchase
or redeem, any of its debt securities that rank pari passu
in all respects with or junior in interest to the Junior
Subordinated Notes.
Section 5. Representations and Warranties of
the Placement Agent . The Placement Agent represents and
warrants to, and agrees with, the Company and the Trust as
follows:
5.1 Organization, Standing and
Qualification . The Placement Agent is a corporation, validly
existing and in good standing under the laws of the state of
Tennessee, with full power and authority to own, lease and operate
its properties and conduct its business as currently being
conducted. The Placement Agent is duly qualified to transact
business as a foreign corporation and is in good standing in each
jurisdiction in which it owns or leases property or conducts its
business so as to require such qualification and in which the
failure to so qualify would,
13
individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
earnings, business, prospects or results of operations of the
Placement Agent.
5.2 Power and Authority . The
Placement Agent has all requisite power and authority to enter into
this Agreement, and this Agreement has been duly and validly
authorized, executed and delivered by the Placement Agent and
constitutes the legal, valid and binding agreement of the Placement
Agent, enforceable against the Placement Agent in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors’ rights generally and to general principles of
equity and except as any indemnification or contribution provisions
thereof may be limited under applicable securities laws.
5.3 General Solicitation .
Neither the Placement Agent, nor any representative of the
Placement Agent has engaged, or will engage, in any form of
“general solicitation or general advertising” (within
the meaning of Regulation D under the Securities Act) or in any
“directed selling efforts” (within the meaning of
Regulation S under the Securities Act) in connection with any offer
or sale of the Preferred Securities.
5.4 Purchaser . The Placement
Agent has made such reasonable inquiry as is necessary to determine
that the Purchaser is acquiring the Preferred Securities for its
own account, the Purchaser does not intend to distribute the
Preferred Securities in contravention of the Securities Act or any
other applicable securities laws.
5.5 Qualified Purchasers .
The Placement Agent has not offered or sold, and will not arrange
for the offer or sale of, the Preferred Securities except (i) to
those the Placement Agent reasonably believes are “accredited
investors” (within the meaning of Rule 501 of Regulation D),
(ii) in an offshore transaction complying with Rule 903 of
Regulation S or (iii) in any other manner that does not require
registration of the Preferred Securities under the Securities Act.
In connection with each such sale, the Placement Agent has taken or
will take reasonable steps to ensure that the Purchaser is aware
that (a) such sale is being made in reliance on an exemption under
the Securities Act and (b) future transfers of the Preferred
Securities will not be made except in compliance with applicable
securities laws.
5.6 Offering Circulars .
Neither the Placement Agent nor its representatives will include
any nonpublic information about the Company, the Trust or any of
their affiliates in any registration statement, prospectus,
offering circular or private placement memorandum used in
connection with any purchase of Preferred Securities without the
prior written consent of the Company or the Trust, as
applicable.
Section 6. Covenants of the Offerors .
The Offerors covenant and agree with the Placement Agent and the
Purchaser as follows:
6.1 Compliance with
Representations and Warranties . During the period from the
date of this Agreement to the Closing Date, the Offerors shall use
their best efforts to cause their representations and warranties
contained in Section 4 hereof to be true as of the Closing
Date, after giving effect to the transactions contemplated by this
Agreement, as if made on and as of the Closing Date.
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6.2 Sale and Registration of
Securities . Neither the Company nor the Trust will, nor will
either of them permit any of its Affiliates to, nor will either of
them permit any person acting on its or their behalf (other than
the Placement Agent and the Purchaser) to, directly or indirectly,
(i) sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities
Act) that would or could be integrated with the sale of the
Preferred Securities in any manner that would require the
registration of the Securities under the Securities Act or (ii)
make offers or sales of any such Security, or solicit offers to buy
any such Security, under any circumstances that would require the
registration of any of such Securities under the Securities
Act.
6.3 Use of Proceeds . The
Trust shall use the proceeds from the sale of the Preferred
Securities and the Common Securities solely to purchase the Junior
Subordinated Notes from the Company.
6.4 Investment Company . So
long as any of the Securities are outstanding, (i) the Securities
shall not be listed on a national securities exchange registered
under section 6 of the Exchange Act or quoted in a U.S. automated
interdealer quotation system, (ii) neither the Company nor the
Trust shall be an open-end investment company, unit investment
trust or face-amount certificate company that is, or is
requir
