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EXHIBIT 1.1
$12,000,000 PREFERRED SECURITIES
MB CAPITAL I
_____% CUMULATIVE PREFERRED SECURITIES
(LIQUIDATION PREFERENCE OF $10 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
________________, 1998
Xxxx Xxxxxx Investments, Inc.
As Representative of the several Underwriters
named in Schedule A
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
MegaBank Financial Corporation, a Colorado corporation (the "Company"),
and its fiduciary subsidiary, MB Capital I, a statutory business trust
organized under the Delaware Business Trust Act (the "Delaware Act") (the
"Trust" and, together with the Company, the "Offerors"), propose, subject to
the terms and conditions stated herein, to issue and sell to you (the
"Underwriters"), an aggregate of $12,000,000 of the Trust's _____% Cumulative
Preferred Securities, with a liquidation preference of $10.00 per capital
security (the "Preferred Securities"). The Offerors propose that the Trust
issue the Preferred Securities pursuant to a Trust Agreement, as amended and
restated, among Wilmington Trust Company, as Property Trustee and Delaware
Trustee, the administrative trustees named therein (the "Administrative
Trustees") and the Company (the "Trust Agreement"). The Preferred Securities
will be guaranteed by the Company with respect to distributions and payments
upon liquidation, redemption and otherwise (the "Guarantee") pursuant to a
Guarantee Agreement (the "Guarantee Agreement"), to be dated ____________,
1997, between the Company and Wilmington Trust Company, as trustee (the
"Guarantee Trustee"), and entitled to the benefits of certain backup
undertakings described in the Prospectus (as defined herein) with respect to
the Company's agreement pursuant to the Expense Agreement (as defined herein)
to pay all expenses relating to administration of the Trust.
The proceeds of the sale of the Preferred Securities will be used to
purchase junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures") issued by the Company pursuant
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to an Indenture, to be dated __________, 1997, between the Company and
Wilmington Trust Company, as trustee (the "Indenture").
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (File No. 333-______) and a
related preliminary prospectus for the registration of the Preferred
Securities, the Guarantee and the Junior Subordinated Debentures, under the
Securities Act of 1933, as amended (the "Act") and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and regulations
thereunder. The registration statement, as amended, at the time it was
declared effective, including the information (if any) deemed to be part
thereof pursuant to Rule 430A under the Act, is herein referred to as the
"Registration Statement." The form of prospectus first filed by the Offerors
with the Commission pursuant to Rules 424(b) and 430A under the Act is referred
to herein as the "Prospectus." Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective or filed with the
Commission pursuant to Rule 424(a) under the Act is referred to herein as a
"Preliminary Prospectus." The Securities Exchange Act of 1934, as amended, is
referred to herein as the "Exchange Act." Copies of the Registration
Statement, including all exhibits and schedules thereto, any amendments thereto
and all Preliminary Prospectuses have been delivered to you.
The Offerors hereby confirm their agreement with respect to the purchase
of the Preferred Securities by the Underwriters as follows:
1. Representations and Warranties of the Offerors. (a) The
Offerors jointly and severally represent and warrant to, and agree with, each
of the Underwriters that:
(i) The Registration Statement has been declared
effective under the Act, and no post-effective amendment to the
Registration Statement has been filed with the Commission as of the date
of this Agreement. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or threatened by the Commission.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Trust Indenture
Act and the rules and regulations of the Commission promulgated
thereunder, and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
Offerors make no representation or warranty as to information contained
in or omitted in reliance upon, and in conformity with, written
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information furnished to the Offerors by or on behalf of any
Underwriter, expressly for use in the preparation thereof.
(iii) The Registration Statement conforms, and the
Prospectus and any amendments or supplements thereto will conform, in
all material respects to the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder. Neither the
Registration Statement nor any amendment thereto, and neither the
Prospectus nor any supplement thereto, contains or will contain, as the
case may be, any untrue statement of a material fact or omits or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
Offerors make no representation or warranty as to (i) information
contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and
in conformity with, written information furnished to the Offerors by or
on behalf of any Underwriter, expressly for use in the preparation
thereof or (ii) information in those parts of the Registration Statement
which constitute the Statement of Eligibility and Qualification ("Form
T-1") under the Trust Indenture Act.
(iv) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act
with full trust power and authority to own property and to conduct its
business as described in the Registration Statement and Prospectus and
is authorized to do business in each jurisdiction in which such
qualification is required, except where the failure to so qualify would
not have a material adverse effect on the Trust's condition (financial
or otherwise), earnings, business, prospects, assets, results of
operations or properties taken as a whole; the Trust has conducted and
will conduct no business other than the transactions contemplated by the
Trust Agreement and described in the Prospectus; the Trust is not a
party to or otherwise bound by any agreement other than those described
in the Prospectus; the Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not as an association
taxable as a corporation; and the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
(v) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Colorado and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "BHC Act"), supervised
by the Board of Governors of the Federal Reserve System (the "Fed").
The Company does not directly or indirectly own any stock or other
equity interest in any corporation, partnership, joint venture,
unincorporated association or other entity other than MegaBank (the
"Bank"), (the Bank
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and any other entities owned by the Company being collectively referred
to herein as the "Subsidiaries"). Each Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own or lease its properties and conduct
its business as described in the Prospectus, and is duly qualified to
transact business in all jurisdictions in which the conduct of its
business or its ownership or leasing or property requires such
qualification and the failure so to qualify would have a material
adverse effect on the business or condition, financial or otherwise, of
the Company and the Subsidiaries, taken as a whole. All outstanding
shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable, and
are owned, directly or indirectly, by the Company free and clear of all
liens, encumbrances and security interests, except as disclosed in the
Registration Statement. No options, warrants or other rights to
purchase, agreements or other obligations to issue, or other rights to
convert any obligations into, shares of capital stock or ownership
interests in any of the Subsidiaries are outstanding.
(vi) All of the issued and outstanding shares of capital
stock of the Company are duly authorized, validly issued, fully paid and
nonassessable, were offered and sold in compliance with all federal and
state securities laws, and were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase
securities. Except as otherwise stated in the Registration Statement and
Prospectus, there are no preemptive rights or other rights to subscribe
for or to purchase, or any restriction upon the voting or transfer of,
the Junior Subordinated Debentures, the common securities of the Trust
held by the Company (the "Common Securities") or the Preferred
Securities. Neither the filing of the Registration Statement nor the
registration of the Preferred Securities, the Guarantee or the Junior
Subordinated Debentures gives rise to any rights for or relating to the
registration of any capital stock or other securities of the Company or
the Trust. The Company has an authorized and outstanding capitalization
as set forth in the Registration Statement and the Prospectus.
(vii) Each of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Agreement as to Expenses and
Liabilities (the "'Expense Agreement") has been duly authorized,
executed and delivered by the Company and/or the Trust, as the case may
be, and constitutes a valid, legal and binding obligation of the Company
and/or the Trust, as the case may be, enforceable in accordance with its
terms, except as rights to indemnity hereunder may be limited by federal
or state securities laws and except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally
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and subject to general principles of equity and, with respect to Section
7 hereof, by the public policy underlying the federal or state
securities laws. The execution, delivery and performance of this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement
and the Expense Agreement and the consummation of the transactions
herein or therein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under,
any statute, any indenture, mortgage, deed of trust, loan agreement,
lease, franchise, license or other agreement or instrument to which the
Trust, the Company or any of the Subsidiaries is a party or by which the
Trust, the Company or any of the Subsidiaries is bound or to which any
property or assets of the Trust, the Company or any of the Subsidiaries
is subject, the Company's or any Subsidiary's charter or bylaws, the
Trust Agreement or the Trust's certificate of trust filed with the State
of Delaware on ______________, 1997 (the "Certificate of Trust") or any
order, rule, regulation or decree of any court or governmental agency or
body having jurisdiction over the Company, any Subsidiary or the Trust
or having jurisdiction over any of the properties of the Company, any
Subsidiary or the Trust. No consent, approval, authorization or or or
body is required for the execution, delivery and performance of this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement
and the Expense Agreement or for the consummation of the transactions
contemplated hereby or thereby, including the issuance or sale of the
Junior Subordinated Debentures by the Company and the Common Securities
and the Preferred Securities by the Trust, except such as may be
required under the Act, all of which have been obtained or made, and
under state securities or blue sky laws. Each of the Company and the
Trust, as the case may be, has full power and authority to enter into
this Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement, as the case may be, and to
authorize, issue and sell the Junior Subordinated Debentures or the
Common Securities and the Preferred Securities, as the case may be, as
contemplated by this Agreement; and each of the Indenture, the Trust
Agreement and the Guarantee Agreement has been duly qualified under the
Trust Indenture Act and will conform in all material respects to the
statements relating thereto in the Registration Statement and the
Prospectus.
(viii) The Junior Subordinated Debentures have been duly
authorized by the Company and at the Closing Date will have been duly
executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as described
in the Prospectus, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof
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may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity, will be in the form contemplated by, and entitled
to the benefits of, the Indenture, will conform to the statements
relating thereto in the Prospectus, and will be owned by the Trust free
and clear of any security interest, pledge, lien, encumbrance, claim or
equity.
(ix) The Common Securities have been duly authorized by
the Trust Agreement and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Prospectus, will be
validly issued and (subject to the terms of the Trust Agreement) fully
paid and nonassessable undivided beneficial interests in the assets of
the Trust and will conform to all statements relating thereto contained
in the Prospectus; and at the Closing Date all of the issued and
outstanding Common Securities of the Trust will be directly owned by the
Company free and clear of any security interest, pledge, lien,
encumbrance, claim or equity.
(x) The Preferred Securities have been duly authorized
by the Trust Agreement and, when issued and delivered pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable undivided beneficial
interests in the Trust, will be entitled to the benefits of the Trust
Agreement and will conform to the statements relating thereto contained
in the Prospectus; and holders of Preferred Securities will be entitled
to the same limitation of personal liability under Delaware law as
extended to stockholders of private corporations for profit.
(xi) The Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement are in substantially the respective
forms filed as exhibits to the Registration Statement.
(xii) The Company's obligations under the Guarantee
Agreement are subordinated and junior in right of payment to all Senior
and Subordinated Debt (as defined in the Indenture) of the Company.
(xiii) The Junior Subordinated Debentures are subordinate
and junior in right of payment to all Senior and Subordinated Debt of
the Company.
(xiv) Each of the Administrative Trustees of the Trust is
an officer of the Company and has been duly authorized by the Company to
execute and deliver the Trust Agreement.
(xv) The financial statements, together with the related
notes and schedules, contained in the Registration Statement and
Prospectus present fairly the consolidated financial position, results
of operations, shareholders' equity and cash flows of the Company and
its consolidated Subsidiaries on the basis stated therein at the
indicated dates and for the indicated periods. Such financial
statements have been prepared in accordance with generally accepted
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accounting principles consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of
results for such periods have been made, except as otherwise stated
therein. The selected financial and statistical data included in the
Registration Statement present fairly the information shown therein on
the basis stated in the Registration Statement and have been compiled on
a basis consistent with the financial statements presented therein.
(xvi) There is no action or proceeding pending or, to the
knowledge of the Trust or the Company, threatened or contemplated
against any of the Trust, the Company or any Subsidiary before any court
or administrative or regulatory agency which, if determined adversely to
the Trust, the Company or such Subsidiary would, individually or in the
aggregate, result in a material adverse change in the business or
condition (financial or otherwise), results of operations, shareholders'
equity or prospects of the Trust, the Company or such Subsidiary, taken
as a whole, except as set forth in the Registration Statement.
(xvii) There are no contracts or documents of the Trust or
the Company or any Subsidiary that are required by the Act or by the
rules and regulations thereunder to be filed as exhibits to the
Registration Statement which contracts or documents have not been so
filed.
(xviii) The Company and the Subsidiaries have good
and marketable title to all properties and assets reflected as owned in
the financial statements hereinabove described (or as described as owned
in the Prospectus), in each case free and clear of all liens,
encumbrances and defects, except such as are described in the Prospectus
or do not substantially affect the value of such properties and assets
and do not materially interfere with the use made and proposed to be
made of such properties and assets by the Company and the Subsidiaries;
and any real property and buildings held under lease by the Company and
the Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and the Subsidiaries.
(xix) Since the respective dates as of which information
is given in the Registration Statement, as it may be amended or
supplemented, (A) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the condition, financial or otherwise, of the Trust, the
Company and the subsidiaries taken as a whole, or the business affairs,
management, financial position, shareholders' equity or results of
operations of the Trust, the Company and the Subsidiaries, taken as a
whole, whether or not occurring in the ordinary course of business,
including, without limitation, any material increase in the amount or
number of classified assets of the Bank, any decrease in net interest
margin for
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any month to a level below ___%, or any material decrease in the volume
of loan originations, the amount of deposits or the amount of loans, (B)
there has not been any transaction not in the ordinary course of
business entered into by the Trust, the Company or any of the
Subsidiaries which is material to the Trust, the Company and the
Subsidiaries, taken as a whole, other than transactions described or
contemplated in the Registration Statement, (C) the Trust, the Company
and the Subsidiaries have not incurred any material liabilities or
obligations, which are not in the ordinary course of business or which
could result in a material reduction in the future earnings of the
Trust, the Company and the Subsidiaries, (D) the Trust, the Company and
the Subsidiaries have not sustained any material loss or interference
with their respective businesses or properties from fire, flood,
windstorm, accident or other calamity, whether or not covered by
insurance, (E) there has not been any change in the capital stock of the
Company or the Subsidiaries (other than upon the exercise of options and
warrants described in the Registration Statement), or any material
increase in the short-term or long-term debt (including capitalized
lease obligations) of the Company aas a whole, and (F) there has not
been any declaration or payment of any dividends or any distributions of
any kind with respect to the capital stock of the Company or the
Subsidiaries other than any dividends or distributions described or
contemplated in the Registration Statement.
(xx) Neither the Company nor any of the Subsidiaries is
in violation of its respective charter or Bylaws; the Trust is not in
violation of the Trust Agreement or its Certificate of Trust; and none
of the Trust, the Company, or the Subsidiaries is in violation of or
otherwise in default under any statute, or any rule, regulation, order,
judgment, decree or authorization of any court or governmental or
administrative agency or body having jurisdiction over the Trust, the
Company or any of the Subsidiaries or any of their properties, or any
indenture, mortgage, deed of trust, loan agreement, lease, franchise,
license or other agreement or instrument to which the Trust, the Company
or any of the Subsidiaries is a party or by which any of them are bound
or to which any property or assets of the Trust, the Company or any of
the Subsidiaries is subject, which violation or default would have a
material adverse effect on the business, condition (financial or
otherwise), results of operations, shareholders' equity or prospects of
the Trust, the Company and the Subsidiaries, taken as a whole.
(xxi) The Trust, the Company and each of the Subsidiaries
holds and is operating in compliance with all licenses, approvals,
certificates and permits from governmental and regulatory authorities,
foreign and domestic, which are necessary to the conduct of its business
as described in the Prospectus. Without limiting the generality of the
foregoing, the Company has all
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necessary approvals of the Fed to own the stock of the Subsidiaries.
None of the Trust, the Company or any Subsidiary has received notice of
or has knowledge of any basis for any proceeding or action relating
specifically to the Trust, the Company or the Subsidiaries for the
revocation or suspension of any such consent, authorization, approval,
order, license, certificate or permit or any other action or proposed
action by any regulatory authority having jurisdiction over the Trust,
the Company or the Subsidiaries that would have a material adverse
effect on the Trust, the Company or any Subsidiary.
(xxii) To the best of the Offerors' knowledge, Fortner,
Bayens, Xxxxxxxxx and Co., P.C., which has certified certain of the
financial statements filed with the Commission as part of the
Registration Statement, are independent public accountants as required
by the Act and the rules and regulations thereunder.
(xxiii) The Offerors have not taken and will not
take, directly or indirectly, any action designed to, or which has
constituted, or which might reasonably be expected to cause or result
in, stabilization or manipulation of the price of the Preferred
Securities.
(xxiv) The Offerors' registration statement pursuant to
Section 12(g) of the Exchange Act with respect to the Preferred
Securities, has been declared effective by the Commission; the Preferred
Securities have been approved for quotation and trading, upon notice of
issuance, on the Nasdaq National Market under the symbol "MBFCA."
(xxv) The Offerors have not distributed and will not
distribute any prospectus or other offering material in connection with
the offering and sale of the Preferred Securities other than any
Preliminary Prospectus or the Prospectus or other materials permitted by
the Act to be distributed by the Company.
(xxvi) The deposit accounts of the Bank are insured by the
Federal Deposit Insurance Corporation (the "FDIC") to the fullest extent
provided by law. No proceeding for the termination of such insurance is
pending or is threatened. Neither the Company nor any Subsidiary has
received or is subject to any directive or order from the Fed, the FDIC,
the Colorado Division of Banking, or any other regulatory authority to
make any material change in the method of conducting their respective
businesses that has not been complied with in all material respects.
(xxvii) The Offerors are in material compliance with
all provisions of Florida Statutes Section 517.075 (Chapter 92-198, laws
of Florida). Neither the Offerors nor any of their affiliates does any
business, directly or indirectly, with the government of Cuba or with
any person or entity located in Cuba.
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(xxviii) The Trust, the Company and the Subsidiaries,
to the best of their knowledge, have filed all federal, state, local and
foreign tax returns or reports required to be filed, and have paid in
full all taxes indicated by said returns or reports and all assessments
received by it or any of them to the extent that such taxes have become
due and payable, except where the Trust, the Company and the
Subsidiaries are contesting in good faith such taxes and assessments.
The Company and the Subsidiaries have also filed all required
applications, reports, returns and other documents and information with
all state and federal banking authorities and agencies.
(xxix) The Trust, the Company and each of the Subsidiaries,
to the best of their knowledge, owns or licenses all patents, patent
applications, trademarks, service marks, tradenames, trademark
registrations, service xxxx registrations, copyrights, licenses,
inventions, trade secrets and other similar rights necessary for the
conduct of their businesses as described in the Prospectus. Neither the
Trust, the Company nor any of the Subsidiaries has any knowledge of any
infringement of any patents, patent applications, trademarks, service
marks, tradenames, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets or other similar rights
of others, and none of the Trust, the Company or any of the Subsidiaries
has received any notice or claim of conflict with the asserted rights of
others with respect to any of the foregoing.
(xxx) None of the Trust, the Company or any of the
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or an "investment adviser" within the meaning of the
Investment Advisers Act of 1940, as amended.
(xxxi) The Company and its Subsidiaries maintain, and the
Trust will maintain, a system of internal accounting controls sufficient
to provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (C) access to
records is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(xxxii) Other than as contemplated by this Agreement
and as disclosed in the Registration Statement, the Company has not
incurred any liability for any finder's or broker's fee or agent's
commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
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(xxxiii) No report or application filed by the Company or
any of its subsidiaries with the Fed, the FDIC or the Colorado Division
of Banking, as of the date it was filed, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading when made or failed to comply with the applicable
requirements of the Fed, the FDIC or the Colorado Division of Banking,
as the case may be.
(xxxiv) The proceeds from the sale of the Preferred
Securities will constitute "tier 1" capital (as defined in 12 C.F.R.
Part 325), subject to applicable regulatory restrictions on the amount
thereof that can be included in tier 1 capital.
(xxxv) The Offerors meet all of the requirements for the
use of Form SB-2 to register the Preferred Securities, the Guarantee and
the Common Securities under the Act.
(b) Any certificate signed by or on behalf of the Trust or the
Company and delivered to the Underwriters or counsel to the Underwriters shall
be deemed to be a representation and warranty of the Trust or the Company to
each Underwriter as to the matters covered thereby.
2. Purchase, Sale and Delivery of Preferred Securities. On
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Trust agrees to
issue and sell to each Underwriter, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Trust, at a purchase price per
Capital Security of $10.00, the number of Preferred Securities set forth
opposite the name of such Underwriter in Schedule A hereto. As compensation to
the Underwriters for their commitments hereunder and in view of the fact that
the proceeds of the sale of the Preferred Securities (together with the entire
proceeds from the sale by the Trust to the Company of the Common Securities)
will be used to purchase the Junior Subordinated Debentures, the Company hereby
agrees to pay at the Closing Date to you a commission of $___________ per
Capital Security sold by the Trust hereunder.
The Preferred Securities will be delivered by the Company to you against
payment of the purchase price therefor at the offices of Xxxxx & Xxxxxx,
Denver, Colorado, or such other location as may be mutually acceptable, at 8:00
a.m. Mountain time on _____________, 1998, or such other time and date as you
and the Company may agree upon in writing, such time and date of delivery being
herein referred to as the "Closing Date." The purchase price shall be payable
by wire transfer of immediately available funds to an account, such account to
be designated by the Trust at least two business days preceding the Closing
Date. The Underwriters' commission shall be payable by wire transfer of
immediately available funds to an account, such account to be designated by the
Underwriters at least two business days preceding the Closing Date. Delivery
of the Preferred Securities may be made by credit through full fast
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transfer to the accounts at The Depository Trust Company designated by you.
Certificates representing the Preferred Securities, in definitive form and in
such denominations and registered in such names as you may request upon at
least two business days' prior notice to the Company shall be prepared and will
be made available for checking and packaging, not later than 10:30 a.m.,
Central time, on the business day next preceding the Closing Date at the
offices of Xxxx Xxxxxx Investments, Inc., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, or such other location as may be mutually acceptable.
It is understood that any Underwriter may (but shall not be obligated
to) make payment to the Company on behalf of the other Underwriter for the
Securities to be purchased by such Underwriter. Any such payment shall not
relieve such other Underwriter of any of its obligations hereunder. Nothing
herein contained shall constitute the Underwriters an unincorporated
association or partner with either or both Offerors.
3. Offering by Underwriters. It is understood that the
several Underwriters propose to make a public offering of the Preferred
Securities as soon as the Underwriters deem it advisable to do so. The
Preferred Securities are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Underwriters may from
time to time thereafter change the public offering price and other selling
terms.
4. Covenants of the Offerors. The Offerors jointly and
severally covenant and agree with the several Underwriters that:
(a) The Offerors will prepare and timely file with the
Commission under Rule 424(b) under the Act a Prospectus containing
information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A under the Act, and will
not file any amendment to the Registration Statement or supplement to
the Prospectus of which the Underwriters shall not previously have been
advised and furnished with a copy and as to which the Underwriters shall
have reasonably objected in writing promptly after reasonable notice
thereof or which is not in compliance with the Act or the rules and
regulations thereunder.
(b) The Offerors will advise the Underwriters promptly
of any request of the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any additional
information, or of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the use of
the Prospectus, of the suspension of the qualification of the Preferred
Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for that purpose, and the
Offerors will use their best efforts to prevent the issuance of any such
stop order preventing or suspending the use of the
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Prospectus or suspending such qualification and to obtain as soon as
possible the lifting thereof, if issued.
(c) The Offerors will cooperate with you and your
counsel in order to qualify the Preferred Securities for sale under the
securities laws of such jurisdictions as the Underwriters may reasonably
have designated in writing and to continue such qualifications in effect
for so long as the Underwriters may reasonably request for distribution
of the Preferred Securities (or obtain exemptions from the application
of such laws), provided that neither Offeror shall be required to
qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction where it is not now so qualified or
required to file such a consent. The Offerors will, from time to time,
prepare and file such statements, reports and other documents as may be
requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as
many copies of any Preliminary Prospectus as the Underwriters may
reasonably request and, during the period when delivery of a prospectus
is required under the Act, the Offerors will furnish the Underwriters
with as many copies of the Prospectus in final form, or as thereafter
amended or supplemented, as the Underwriters may, from time to time,
reasonably request. The Offerors will deliver to the Underwriters, at
or before the Closing Date, two signed copies of the Registration
Statement and all amendments thereto including all exhibits filed
therewith, and will deliver to the Underwriters such number of conformed
copies of the Registration Statement, without exhibits, and of all
amendments thereto, as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer, any event
shall occur as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, not misleading, or if for
any other reason it shall be necessary at any time to amend or
supplement the Prospectus to comply with any law, the Offerors promptly
will prepare and file with the Commission an appropriate amendment to
the Registration Statement or supplement to the Prospectus so that the
Prospectus as so amended or supplemented will not include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein in light of the
circumstances when it is so delivered, not misleading, or so that the
Prospectus will comply with law.
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(f) The Offerors will make generally available to their
security holders, as soon as it is practicable to do so, but in any
event not later than 18 months after the effective date of the
Registration Statement, an earnings statement (which need not be
audited) in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 thereunder and
will advise you in writing when such statement has been so made
available.
(g) The Company will, for five years from the Closing
Date, deliver to each Underwriter, as soon as they are available, copies
of its annual report and copies of all other documents, reports and
information furnished by the Company to its security holders or filed
with any securities exchange pursuant to the requirements of such
exchange or with the Commission pursuant to the Act or the Exchange Act.
The Company will deliver to each Underwriter similar reports with
respect to significant subsidiaries, as that term is defined in the
rules and regulations under the Act, which are not consolidated in the
Company's financial statements.
(h) The Offerors will apply the net proceeds from the
sale of the Subordinated Debentures and the Preferred Securities
substantially in accordance with the purposes set forth under "Use of
Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration,
filing and reporting requirements of the Exchange Act and the Nasdaq
National Market.
5. Costs and Expenses. (a) The Offerors will pay (directly
or by reimbursement) all costs, expenses and fees incident to the performance
of the obligations of the Offerors under this Agreement, including, without
limiting the generality of the foregoing, the following: accounting fees of
the Offerors; the fees and disbursements of counsel for the Offerors; the cost
of preparing, printing and filing of the Registration Statement, Preliminary
Prospectuses and the Prospectus and any amendments and supplements thereto and
the printing, mailing and delivery to the Underwriters and dealers of copies
thereof and of this Agreement, the Selected Dealers Agreement, the Blue Sky
Memorandum, if deemed necessary by the Underwriters, after consultation with
the Offerors, and any supplements or amendments thereto (excluding, except as
provided below, fees and expenses of counsel to the Underwriters); the filing
fees of the Commission; the filing fees and expenses (including legal fees and
disbursements of counsel for the Underwriters) incident to securing any
required review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Preferred Securities; the fees and
expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee in connection with the Indenture and Junior
Subordinated Debentures; the fees and expenses of
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the Property Trustee and the Delaware Trustee, including the fees and
disbursements of counsel for the Property Trustee and the Delaware Trustee in
connection with the Trust Agreement and the Certificate of Trust; the fees and
expenses of the Guarantee Trustee, including the fees and disbursements of
counsel for the Guarantee Trustee in connection with the Guarantee and
Guarantee Agreement; listing fees, if any, transfer taxes and the expenses,
including the fees and disbursements of counsel for the Underwriters, incurred
in connection with the qualification of the Preferred Sey laws; the fees and
expenses incurred in connection with the designation of the Preferred
Securities on the Nasdaq National Market; the costs of preparing certificates
representing Junior Subordinated Debentures or Preferred Securities; the costs
and fees of any registrar or transfer agent and all other costs and expenses
incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 5. In addition, the
Offerors will pay all travel and lodging expenses incurred by management of the
Offerors in connection with any informational "road show" meetings held in
connection with the offering and will also pay for the preparation of all
materials used in connection with such meetings. The Offerors shall not be
required to pay for any of the Underwriters' expenses (other than those related
to qualification of the Preferred Securities under state securities or Blue Sky
laws and those incident to securing any required review by the NASD of the
terms of the sale of the Preferred Securities which shall be paid by the
Offerors as provided above) except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Underwriters pursuant to Sections
9(a) or 9(b) hereof, or by reason of any failure, refusal or inability on the
part of the Offerors to perform any undertaking or satisfy any condition of
this Agreement or to comply with any of the terms hereof on either of their
parts to be performed, unless such failure to satisfy said condition or to
comply with said terms shall be due to the default or omission of any
Underwriter, then the Offerors promptly upon request by the Underwriters shall
reimburse the several Underwriters for all actual, accountable out-of-pocket
expenses, up to $25,000, including fees and disbursements of counsel reasonably
incurred in connection with investigating, marketing and proposing to market
the Preferred Securities oforming their obligations hereunder; but the Offerors
shall not in any event be liable to any of the several Underwriters for damages
on account of loss of anticipated profits from the sale by them of the
Preferred Securities.
(b) Upon successful completion of the offering contemplated by
this Agreement, the Offerors will pay all reasonable and customary costs,
expenses and fees incident to tombstone advertisements of the offering and
incurred with the approval of the Company.
6. Conditions of Obligations of the Underwriters. The
several obligations of the Underwriters to purchase the Preferred Securities on
the Closing Date are subject to the condition that
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all representations and warranties of the Offerors contained herein are true
and correct, at and as of the Closing Date, and the condition that each Offeror
shall have performed all of its covenants and obligations hereunder and to the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof; no stop order suspending the effectiveness of
the Registration Statement, as amended from time to time, or any part
thereof shall have been issued and no proceedings for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of the Underwriters.
(b) The Underwriters shall have received on the Closing Date
the opinion of Xxxxx & Xxxxxx, Denver, Colorado, counsel for the
Offerors, dated the Closing Date, addressed to the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with corporate power and
authority to own or lease its properties and conduct its business as
described in the Prospectus. All of the issued and outstanding
shares of the capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. The
holders of the Company's outstanding securities are not entitled to
any preemptive or other rights to subscribe for the Junior
Subordinated Debentures or the Preferred Securities under the
Company's Articles of Incorporation or Bylaws and, to the knowledge
of such counsel, no such rights exist under any other agreement or
arrangement. The Company has authorized and outstanding capital
stock as described in the Prospectus.
(ii) Each Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own or lease its properties
and conduct its business as described in the Prospectus. The
outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and
is owned, directly or indirectly, by the Company, free and clear of
all liens, encumbrances and security interests, other than security
interests specifically disclosed in the Prospectus. To the
knowledge of such counsel, no options, warrants or
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other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligations into capital stock or
ownership interests in any Subsidiary are outstanding.
(iii) All of the issued and outstanding Common Securities
of the Trust are owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
(iv) The Trust Agreement, the Indenture, the Guarantee,
the Form T-1 Statement of Eligibility of Wilmington Trust Company to
act as trustee under the Indenture, the Form T-1 Statement of
Eligibility of Wilmington Trust Company to act as trustee under the
Trust Agreement, and the Form T-1 Statement of Eligibility of
Wilmington Trust Company to act as trustee under the Guarantee
Agreement have been duly qualified under the Trust Indenture Act.
(v) The Junior Subordinated Debentures are in the form
contemplated by the Indenture, have been duly authorized, executed
and delivered by the Company and, when authenticated by the
Indenture Trustee in the manner provided for in the Indenture and
delivered against payment therefor, will constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate
and junior in right of payment to all "Senior and Subordinated Debt"
(as defined in the Indenture) of the Company.
(vii) Under current law, the Trust will be classified for
United States federal income tax purposes as a grantor trust and not
as an association taxable as a corporation; accordingly, for United
States federal income tax purposes each beneficial owner of
Preferred Securities will be treated as owning an undivided
beneficial interest in the Junior Subordinated Debentures, and
stated interest on the Junior Subordinated Debentures generally will
be included in income by a holder of Preferred Securities at the
time such interest income is paid or accrued in accordance with such
holder's regular method of tax accounting.
(viii) For federal income tax purposes, (a) the Junior
Subordinated Debentures will constitute indebtedness of the Company
and (b) the interest on the Junior Subordinated Debentures will be
deductible by the Company on an economic accrual basis in accordance
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with Section 163(e) of the Internal Revenue Code of 1986, as
amended, and Treasury Regulation Section 1.163-7.
(ix) To the best of such counsel's knowledge and
information after due inquiry, the Trust is not required to be
authorized to do business in any other jurisdiction, except where
the failure to be so authorized would not have a material adverse
effect on the Trust's condition (financial or otherwise), earnings,
business, prospects, assets, results of operations or properties
taken as a whole and the Trust is not a party to or otherwise bound
by any material agreement other than those described in the
Prospectus.
(x) The Trust Agreement has been duly executed and
delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and
information after due inquiry, the Offerors are not in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or any other instrument of
which either of them is a party or by which either of them may be
bound, or to which any of the property or assets of the Offerors is
subject.
(xii) The Company has full corporate power and authority
and the Trust has full trust power and authority to enter into this
Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement, as applicable, and to issue the
Junior Subordinated Debentures or the Common Securities and
Preferred Securities, as the case may be, and to effect the
transactions contemplated by this Agreement, the Indenture, the
Trust Agreement, the Guarantee Agreement and the Expense Agreement,
as applicable, and each of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Expense Agreement have
been duly authorized, executed and delivered by the Company and the
Trust, as applicable, and constitutes a valid, legal and binding
obligation of the Company and the Trust, as applicable, enforceable
in accordance with its terms (except as rights to indemnity
hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity).
The execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement, the
Preferred Securities, the Common Securities, the Junior Subordinated
Debentures and the Expense Agreement and the consummation
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of the transactions herein or therein contemplated will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule or regulation (except
that such counsel need express no opinion regarding any Blue Sky or
state securities laws), any lease, contract, indenture, mortgage,
loan agreement or other agreement or instrument known to such
counsel to which the Company, the Trust or any Subsidiary is a party
or by which it is bound or to which any of its property is subject,
the Company's or any Subsidiary's charter or bylaws, or the Trust's
Certirder or decree known to such counsel of any court or
governmental agency or body having jurisdiction over the Company,
the Trust or any Subsidiary or any of their respective properties,
except for any breach, violation or default which would not have a
material adverse effect on the Company or the Trust; and no consent,
approval, authorization, order of, designation, declaration or
filing by or with, any court or any regulatory, administrative or
governmental agency or body is required for the execution, delivery
and performance of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement, the
Common Securities, the Preferred Securities, or the Junior
Subordinated Debentures, or for the consummation of the transactions
contemplated hereby or thereby (other than as may be required by
federal or state laws governing banks or bank holding companies, the
NASD, or by state securities and blue sky laws, as to which such
counsel need express no opinion), including the issuance or sale of
the Junior Subordinated Debentures by the Company and the Common
Securities and Preferred Securities by the Trust, except (a) such as
may be required under the Act, which have been obtained or made, or
under state securities or blue sky laws, (b) such agreements,
instruments or obligations with respect to which valid consents or
waivers have been obtained by the Trust, the Company or any of the
Subsidiaries, and (c) the qualification of the Trust Agreement, the
Guarantee Agreement and the Indenture under the Trust Indenture Act
and the regulations thereunder, all of which have been effected.
The filing of the Registration Statement and the registration of the
Junior Subordinated Debentures, the Guarantee and the Preferred
Securities under the Act does not give rise to any rights for or
relating to the registration of any shares of capital stock or other
securities of the Company.
(xiii) The Registration Statement has become effective
under the Act and, to the knowledge of such counsel, no stop order
proceedings with respect thereto have been instituted or are pending
or threatened by the Commission.
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(xiv) The Registration Statement, the Prospectus and each
amendment or supplement, thereto comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder (except that such counsel need express no
opinion as to the financial statements and related financial
schedules contained in the financial statements, Registration
Statement, the Prospectus and each amendment or supplement thereto).
(xv) The statements (A) in the Prospectus under the
captions "Risk Factors" -- Ranking of the Company's Obligations
Under the Junior Subordinated Debentures and the Guarantee," and --
Option to Extend Interest Payment Period; Tax Consequences; Market
Price Consequences;" and "Certain Federal Income Tax Consequences"
and (B) in the Registration Statement in Item 24, insofar as such
statements constitute a summary of matters of law, are accurate
summaries and fairly present the information called for with respect
to such matters.
(xvi) Such counsel does not know of any contracts,
agreements, documents or instruments required to be filed as
exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed or
described as required; and insofar as any statements in the
Registration Statement or the Prospectus constitute summaries of any
contract, agreement, document or instrument to which the Trust, the
Company or any Subsidiary is a party, such statements are accurate
summaries and fairly present the information called for with respect
to such matters.
(xvii) Such counsel knows of no legal or governmental
proceeding, pending or threatened, before any court or
administrative body or regulatory agency, to which the Trust, the
Company or any of the Subsidiaries is a party or to which any of the
properties of the Trust, the Company or any of the Subsidiaries is
subject that are required to be described in the Registration
Statement or Prospectus and are not so described, or statutes or
regulations that are required to be described in the Registration
Statement or the Prospectus that are not so described (other than
any banking laws (as defined below), as to which counsel need
express no opinion).
(xviii) Neither the Company nor the Trust is, and
immediately upon completion of the sale of Preferred Securities
contemplated hereby, neither the Company nor the Trust will be, an
"investment company" or a company "controlled" by an investment
company under the Investment Company Act of 1940, as amended.
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(xix) To the best of such counsel's knowledge, neither
the Company nor any of the Subsidiaries is in violation of its
respective charter or bylaws.
Such counsel shall also state that on the basis of such counsel's review
and participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, such counsel has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Offerors prior to the Closing Date, as
the case may be (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus or any further amendment or supplement
thereto made by the Offerors prior to the Closing Date, (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading or that, as
of the Closing Date, either the Registration Statement or the Prospectus or any
further amendment or supplement thereto made by the Offerors prior to the
Closing Date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading.
In rendering the above opinions, counsel may rely (i) as to matters of
law other than Colorado and federal law, upon the opinion or opinions of local
counsel provided that the extent of such reliance is specified in such opinion
and that such counsel shall state that such opinion or opinions of local
counsel are satisfactory to them and they believe they and you are justified in
relying thereon and (ii) as to matters of fact, upon the representations of the
Trust and the Company contained in this Agreement and upon certificates of
trustees or officers of the Trust, the Company and of public officials.
(c) The Underwriters shall have received on the Closing Date
the opinion of Xxxxxx Xxxxxxxx Xxxxxx & D'Orsto, P.C., banking counsel for the
Company, dated the Closing Date, addressed to the Underwriters, to the effect
that:
(i) The Bank has been duly chartered to conduct the
business of banking in its state of domicile and the Company has all
necessary power and authority to own the Bank. The Company and the
Bank have all necessary consents and approvals under applicable
federal and state laws and regulations relating to banks and bank
holding companies ("banking laws") to own their respective assets
and carry on their respective businesses as currently conducted.
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(ii) The statements in the Prospectus under the captions
"Risk Factors -- Dependence on Dividends from Subsidiary Bank, --
Competitive Banking Environment and -- Government Regulation and
Recent Legislation," insofar as such statements constitute a summary
of banking laws, are accurate summaries and fairly present the
information called for with respect to such matters.
(iii) Such counsel knows of no legal or governmental
proceeding, pending or threatened, before any court or
administrative body or regulatory agency, to which the Company or
any of the Subsidiaries is a party or to which any of the properties
of the Company or any of the Subsidiaries is subject that are
required to be described in the Registration Statement or Prospectus
and are not so described, or statutes or regulations that are
required to be described in the Registration Statement or the
Prospectus that are not so described.
(iv) The execution and delivery of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the
Expense Agreement and the consummation of the transactions herein
and therein contemplated do not and will not conflict with or result
in a violation of or default under any banking laws, or any permit,
judgment, decree or order known to such counsel, or any lease,
contract, indenture, mortgage, loan agreement or other agreement or
other instrument or obligation known to such counsel to which the
Company or the Bank is a party or by which the Company or the Banks
or any of their respective properties is bound.
(v) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body under banking laws is
necessary in connection with the execution and delivery of this
Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement and the consummation of the
transactions herein and therein contemplated, except such as have
been obtained or made, specifying the same.
(vi) The proceeds from the sale of the Preferred
Securities will constitute "tier 1" capital (as defined in 12 C.F.R.
Part 325), subject to applicable regulatory limitations on the
amount thereof that can be included in tier 1 capital.]
(d) The Underwriters shall have received on the Closing
Date the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to
Wilmington Trust Company, as Property Trustee under the Trust
Agreement, Indenture Trustee under the Indenture, and Guarantee
Trustee under the Guarantee Agreement, dated the Closing Date,
addressed to the Underwriters, to the effect that:
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(i) Wilmington Trust Company is duly incorporated and
is validly existing in good standing as a banking corporation under
the 'laws of the State of Delaware.
(ii) Wilmington Trust Company has the power and
authority to execute, deliver and perform its obligations under the
Trust Agreement, the Indenture and the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the
Guarantee Agreement has been duly authorized, executed and delivered
by Wilmington Trust Company and constitutes a legal, valid and
binding obligation of Wilmington Trust Company, enforceable against
Wilmington Trust Company, in accordance with its terms.
(iv) The execution, delivery and performance by
Wilmington Trust Company of the Trust Agreement, the Indenture and
the Guarantee Agreement do not conflict with or constitute a breach
of the charter or by-laws of Wilmington Trust Company.
(v) No consent, approval or authorization of, or
registration with or notice to, any governmental authority or agency
of the State of Delaware or the United States of America governing
the banking or trust powers of Wilmington Trust Company is required
for the execution, delivery or performance by Wilmington Trust
Company of the Trust Agreement, the Indenture and the Guarantee
Agreement.
(e) The underwriters shall have received on the Closing
Date the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., as special
counsel for the Offerors that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Act, and all filings required as of the date hereof under the
Delaware Act with respect to the creation and valid existence of the
Trust as a business trust have been made.
(ii) Under the Trust Agreement and the Delaware Act, the
Trust has the trust power and authority to own property and to
conduct its business, all as described in the Prospectus.
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company, the Property Trustee and each of the
Administrative Trustees, and is enforceable against the Company, the
Property Trustee and each of the Administrative Trustees in
accordance with its terms.
(iv) Under the Trust Agreement and the Delaware Act, the
Trust has the trust power and authority (i) to execute and deliver,
and to perform its obligations under, this Agreement, and (ii) to
issue, and to perform its obligations under, the Preferred
Securities and the Common Securities.
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(v) Under the Trust Agreement and the Delaware Act, the
execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its obligations under this Agreement,
have been duly authorized by all necessary trust action on the part
of the Trust.
(vi) Under the Delaware Act, the certificate attached to
the Trust Agreement as Exhibit C is an appropriate form of
certificate to evidence ownership of the Preferred Securities. The
Preferred Securities and the Common Securities have been duly
authorized by the Trust Agreement and are duly and validly issued
and, subject to the qualifications hereinafter expressed in this
paragraph (vi), fully paid and non-assessable undivided beneficial
interests in the assets of the Trust. The respective holders of the
Preferred Securities and the Common Securities, as beneficial owners
of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware. Such counsel may note that the respective holders of the
Preferred Securities and the Common Securities may be obligated,
pursuant to the Trust Agreement, to make certain payments under the
Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act, the
issuance of the Preferred Securities and the Common Securities is
not subject to preemptive or similar rights.
(viii) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the Trust of
the Junior Subordinated Debentures, the execution, delivery and
performance by the Trust of this Agreement and the Guarantee
Agreement, the consummation by the Trust of the transactions
contemplated by this Agreement and compliance by the Trust with its
obligations under this Agreement do not violate (a) any of the
provisions of the Certificate of Trust or the Trust Agreement or (b)
any applicable Delaware law or Delaware administrative regulations.
(f) The Underwriters shall have received from Xxxxxxx and
Xxxxxx, Chicago, Illinois, counsel for the Underwriters, an opinion dated the
Closing Date, with respect to the formation of the Trust, the validity of the
Preferred Securities, the Indenture, the Trust Agreement, the Guarantee
Agreement, the Expense Agreement, this Agreement, the Registration Statement,
the Prospectus, and other related matters as the Underwriters may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters.
(g) The Underwriters shall have received on each of the date
hereof and the Closing Date a signed letter, dated as of the date hereof or the
Closing Date in form and substance satisfactory to the Underwriters, from
Fortner, Bayens, Xxxxxxxxx and Co., P.C., to the effect that they are
independent public accountants with respect to the Trust, the Company and the
Subsidiaries within the meaning of the
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Act and the related rules and regulations and containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(h) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date there shall not have been any change or any
development involving a reasonably foreseeable change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Offerors otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in your reasonable
judgment, is material and adverse to the Offerors and makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Preferred Securities being delivered at the Closing Date on the terms and in
the manner contemplated in the Prospectus.
(i) The Underwriters shall have received on the Closing Date a
certificate or certificates of the chief executive officer and the principal
financial officer of the Company, to the effect that, as of the Closing Date
each of them severally represents as follows:
(i) The Prospectus was filed with the Commission
pursuant to Rule 424(b) within the applicable period prescribed for
such filing by the rules and regulations under the Act and in
accordance with Section 4 of this Agreement; no stop order
suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for such purpose have been initiated or
are, to his knowledge, threatened by the Commission.
(ii) The representations and warranties of the Company
set forth in Section 1 of this Agreement are true and correct at and
as of the Closing Date and the Company has performed all of its
obligations under this Agreement to be performed at or prior to the
Closing Date.
(j) The Underwriters shall have received on the Closing Date a
certificate or certificates of the Administrative Trustees, to the effect that,
as of the Closing Date each of them severally represents as follows:
(i) The Prospectus was filed with the Commission
pursuant to Rule 424(b) within the applicable period prescribed for
such filing by the rules and regulations under the Act and in
accordance with Section 4 of this Agreement; no stop order
suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for such purpose have been initiated or
are, to his knowledge, threatened by the Commission.
(ii) The representations and warranties of the Trust set
forth in Section 1 of this Agreement are true and correct at and as
of the Closing Date and the Trust has performed all of its
obligations under this Agreement to be performed at or prior to the
Closing Date.
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(k) The Offerors shall have furnished to the Underwriters such
further certificates and documents as the Underwriters may reasonably have
requested.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Underwriters and to Xxxxxxx
and Xxxxxx, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Underwriters by notifying the Trust of such termination in writing or by
telegram at or prior to the Closing Date. In such event, the Trust and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 7 hereof).
Section 7. Indemnification. (a) The Offerors jointly and
severally agree to indemnify and hold harmless each Underwriter, each officer
and director thereof, and each person, if any, who controls any Underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities to which such Underwriter or such persons may became subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus or the
Prospectus, including any amendments or supplements thereto, (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, or (iii) any act or failure to
act or any alleged act or failure to act by any Underwriter in connection with,
or relating in any manner to, the Preferred Securities or the offering
contemplated hereby, and which is included as part of or referred to in any
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arising out of or based upon matters covered by clause (i) or (ii)
above, and will reimburse each Underwriter and each such controlling person for
any legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Offerors shall not be liable (1) any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged omission, made in
the Registration Statement, any Preliminary Prospectus or the Prospectus,
including any amendments or supplements thereto, in reliance upon and in
conformity xxxx furnished to the Offerors by any Underwriter specifically for
use therein or (2) in the case of any matter covered by clause (iii) above to
the extent that it is determined in a final judgment by a court of competent
jurisdiction that such losses, claims, damages or liabilities resulted directly
from any
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such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence, recklessness or willful misconduct.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Offerors and the trustees and directors and officers who have
signed the Registration Statement, and each person, if any, who controls the
Offerors within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Offerors or any such person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made, and will reimburse
any legal or other expenses reasonably incurred by the Offerors or any such
person in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that each Underwriter will be
liable in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission has been
made in the Registration Statement, any Preliminary Prospectus, the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Trust or the Company by or through the
Underwriters specifically for use therein. The obligations of the Underwriters
under this Section 7(b) are several in proportion to their respective
underwriting obligations and not joint.
(c) The Company agrees to indemnify the Trust against all
loss, liability, claim damage and expense whatsoever, which may become due from
the Trust under subsection (a).
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity or contribution may be sought pursuant to this Section 7, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 7(a) or (b) or contribution provided
for in Section 7(e) shall be available with respect to a proceeding to any
party who shall fail to give notice of such proceeding as provided in this
Section 7(d) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by the
failure to give such notice, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or they
may have to the indemnified party otherwise than on account of the provisions
of Section 7(a) or (b). In case any such proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement
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thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party and shall pay as incurred the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay promptly as incurred the reasonable fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indd the indemnified party shall have
reasonably concluded that there may be a conflict between the positions of the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it or other
indemnified parties which are different from or additional to those available
to the indemnifying party. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm at any time for all such indemnified parties. Such firm shall be
designated in writing by the Underwriters and shall be reasonably satisfactory
to the Offerors in the case of parties indemnified pursuant to Section 7(a) and
shall be designated in writing by the Offerors and shall be reasonably
satisfactory to the Underwriters in the case of parties indemnified pursuant to
Section 7(b). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or (b) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the
one hand and the Underwriters on the other from the offering of the Preferred
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Offerors on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses,
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claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Offerors on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Offerors bears to the
total underwriting discounts and commissions received by the underwriters, in
each case as set forth on the cover page of the prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Offerors on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, opportunity to correct or prevent such statement or omission. The
Offerors and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7(e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereto)
referred to above in this Section 7(e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(e), no Underwriter shall be required to contribute
any amount in excess of the underwriting discounts and commissions applicable
to the Preferred Securities purchased by such Underwriter; and no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this
Section 7(e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Offerors under this Section 7 shall
be in addition to any liability which the Offerors may otherwise have, and the
obligations of the Underwriters under this Section 7 shall be in addition to
any liability which the Underwriters may otherwise have.
Section 8. Notices. All communications hereunder shall be in
writing and, except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriters, to them c/x Xxxx
Xxxxxx Investments, Inc., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Senior Vice President and
Director of Corporate Finance; if to the Company, to MegaBank Financial
Corporation, 0000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention:
Chairman; and if to the Trust, to it at ______________, Attention: Corporate
Trust Administration. All notices given by telegram shall be promptly
confirmed
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by letter. Any notice to the Trust shall also be copied to the Company at the
address previously stated. Any party may change its address for notice
purposes by written notice to the other parties.
Section 9. Termination. This Agreement may be terminated by
you by notice to the Offerors as follows:
(a) At any time prior to the time this Agreement shall
become effective as to all its provisions, and any such termination
shall be without liability on the part of the Offerors to the
Underwriters (except for the expenses to be paid or reimbursed
pursuant to Section 5 and except to the extent provided in Section 7
hereof) or of any Underwriter to the Offerors;
(b) At any time prior to the Closing Date if any of the
following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, any material adverse change in or affecting the
condition, financial or otherwise, of the Trust, the Company and the
Subsidiaries taken as a whole or the business affairs, management,
financial position, shareholders' equity or results of operations of
the Trust, the Company and the Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business, (ii) any
outbreak or escalation of hostilities or declaration of war or
national emergency after the date hereof or other national or
international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of
the United States would, in your judgment, make the offering or
delivery of the Preferred Securities impracticable or inadvisable,
(iii) suspension of trading in securities on the New York Stock
Exchange or the American Stock Exchange or limitation on prices
(other than limitations on hours or numbers of days of trading) for
securities on either such Exchange, or a halt or suspension of
trading in securities generally which are quoted on the Nasdaq
National Market or (iv) declaration of a banking moratorium by
either federal authorities or New York or Colorado state
authorities; or
(c) As provided in Section 6 of this Agreement.
Section 10. Written Information. For all purposes under this
Agreement (including, without limitation, Section 1, Section 3 and Section 7
hereof), the Offerors understand and agree with each of the Underwriters that
the following constitutes the only written information furnished to the
Offerors by the Underwriters specifically for use in preparation of the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto: (i) the per share "Price to Public" and per
share "Underwriting Discounts and Commissions" set forth on the cover page of
the Prospectus, (ii) the information relating to stabilization set forth on
page ___ of the Preliminary
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Prospectus and the Prospectus, and (iii) the information set forth in the third
and sixth paragraphs under the caption "Underwriting" in the Preliminary
Prospectus and the Prospectus.
Section 11. Successors. This Agreement has been and is made
solely for the benefit of and shall be binding upon the Underwriters, the Trust
and the Company and their respective successors, executors, administrators,
heirs and assigns, and the trustees and controlling persons and the officers
and directors of any such controlling person referred to herein, and no other
person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Preferred Securities merely because of
such purchase.
Section 12. Miscellaneous. The reimbursement, indemnification
and contribution agreements contained in this Agreement and the
representations, warranties and covenants in this Agreement shall remain in
full force and effect regardless of (a) any termination of this Agreement, (b)
any investigation made by or on behalf of any Underwriter or controlling person
thereof, or by or on behalf of the Offerors or controlling persons thereof and
(c) delivery of and payment for the Preferred Securities under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction
or any provision hereof in any other jurisdiction.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Illinois.
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If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Offerors and the
Underwriters in accordance with its terms.
Very truly yours,
MB CAPITAL I, a Delaware business trust
By_____________________________
MEGABANK FINANCIAL CORPORATION
By_______________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
XXXX XXXXXX INVESTMENTS, INC.
As Representative of the several Underwriters
named in Schedule A
By___________________________________
Senior Vice President
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Schedule A
SCHEDULE OF UNDERWRITERS
UNDERWRITER NUMBER OF
PREFERRED SECURITIES
TO BE PURCHASED
Xxxx Xxxxxx Investments, Inc.
TOTAL:
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