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700,000 CAPITAL SECURITIES
VBC CAPITAL I
_____% CUMULATIVE CAPITAL SECURITIES
(LIQUIDATION PREFERENCE OF $25 PER CAPITAL SECURITY)
UNDERWRITING AGREEMENT
____________, 1997
Xxxx Xxxxxxxx Incorporated
Xxxx Xxxxxx Investments, Inc.
c/o Xxxx Xxxxxxxx Incorporated
Xxxx Xxxxxxxx Plaza
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Vectra Banking Corporation, a Colorado corporation (the "Company"),
and its fiduciary subsidiary, VBC 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 700,000 of the Trust's ______% Cumulative
Capital Securities, with a liquidation preference of $25.00 per capital
security (the "Capital Securities"). The Offerors propose that the Trust issue
the Capital 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 Capital 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 Capital Securities will be used to
purchase junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures") issued by the Company pursuant 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 S-2 (File No. 333-_____)
and a related preliminary prospectus for
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the registration of the Capital 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." References to the
Registration Statement, the Prospectus and the Preliminary Prospectus include
all information incorporated therein by reference. 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 Capital 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 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,
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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 Statements of
Eligibility and Qualification ("Form T-1") under the Trust Indenture Act.
(iv) The documents of the Company incorporated by
reference in the Registration Statement and the Prospectus, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations of the Commission thereunder, and none of
such documents 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; and any further documents so filed and
incorporated by reference in the Registration Statement and the Prospectus or
any further amendment or supplement thereto, when such documents are filed with
the Commission will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder, and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(v) 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.
(vi) 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 Vectra Bank (the "Bank"), Xxxxxxxxx Building Corporation and
Vectra Bank Service Corporation (the Bank and such other
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entities being collectively referred to herein as the "Subsidiaries") and
insignificant positions in the stock of other financial institutions which are
held for the purpose of receiving information provided to shareholders as more
specifically described in Schedule B hereto. The Bank is a Colorado
corporation having a valid charter from the Colorado Division of Banking to
conduct the business of banking in the State of Colorado. 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 it 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
of 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.
(vii) 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 Capital Securities. Neither the filing of the Registration
Statement nor the registration of the Capital 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.
(viii) 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 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
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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 any of the properties of the Company, any Subsidiary
or the Trust. No consent, approval, authorization or order of, or filing with,
any court or governmental agency 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 Capital 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 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 Capital 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.
(ix) 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 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.
(x) 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.
(xi) The Capital 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
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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 Capital Securities will be entitled to the
same limitation of personal liability under Delaware law as extended to
stockholders of private corporations for profit.
(xii) 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.
(xiii) The Company's obligations under the Guarantee
are subordinated and junior in right of payment to all Senior and Subordinated
Debt (as defined in the Indenture) of the Company.
(xiv) The Junior Subordinated Debentures are
subordinate and junior in right of payment to all Senior and Subordinated Debt
of the Company.
(xv) Each of the Administrative Trustees of the
Trust is an employee of the Company and has been duly authorized by the Company
to execute and deliver the Trust Agreement.
(xvi) The financial statements, together with the
related notes and schedules, contained or incorporated by reference 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 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.
(xvii) 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.
(xviii) 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 or any document incorporated by reference therein which contracts or
documents have not been so filed.
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(xix) 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.
(xx) 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 any month to a level below 4.5%, 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 and the
Subsidiaries, taken as 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.
(xxi) 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
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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.
(xxii) 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 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.
(xxiii) KPMG Peat Marwick, 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.
(xxiv) 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 Capital Securities.
(xxv) The Offeror's registration statement pursuant
to Section 12(g) of the Exchange Act with respect to the Capital Securities,
has been declared effective by the Commission; and the Capital Securities have
been approved for designation upon notice of issuance on the Nasdaq National
Market under the symbol "VTRAC."
(xxvi) The Offerors have not distributed and will
not distribute any prospectus or other offering material in connection with the
offering and sale of the Capital Securities other than any Preliminary
Prospectus or the Prospectus or other materials permitted by the Act to be
distributed by the Company.
(xxvii) 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.
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(xxviii) The Offerors are in material
compliance with all provisions of Florida Statutes Section 517.075 (Chapter
92-198, laws of Florida). Neither of 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.
(xxix) The Trust, the Company and the Subsidiaries
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.
(xxx) The Trust, the Company and each of the
Subsidiaries owns or licenses all patents, patent applications, trademarks,
service marks, tradenames, trademark registrations, service mark 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 nor the Company has any knowledge of any infringement by them
or the Subsidiaries of any patents, patent applications, trademarks, service
marks, tradenames, trademark registrations, service mark 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 any of the foregoing.
(xxxi) 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.
(xxxii) 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.
(xxxiii) 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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(xxxiv) 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.
(xxxv) The proceeds from the sale of the Capital
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.
(xxxvi) The Offerors meet all of the requirements
for the use of Form S-2 to register the Capital 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 Capital Securities; Advisory
Fee. 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 $25.00, the number of Capital 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 Capital 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 Capital Securities will be delivered by the Company to you
against payment of the purchase price therefor at the offices of Xxxxxxx &
Xxxxxx L.L.C., 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, or such other
location as may be mutually acceptable, at 8:00 a.m. Mountain time on
_____________, 1997, 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 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
designated by the Underwriters at least two business days preceding the Closing
Date. Delivery of the Capital Securities may be made by credit through full
fast transfer to the accounts at The Depository Trust Company designated by
you. Certificates representing the Capital 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 Dain
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Bosworth Incorporated, Xxxx Xxxxxxxx Plaza, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx, 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 Capital Securities as
soon as the Underwriters deem it advisable to do so. The Capital 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 Capital 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 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 Capital 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 Capital Securities
(or obtain exemptions from the application of such laws), provided that the
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
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12
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.
(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.
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13
(h) The Offerors will apply the net proceeds from the
sale of the Junior Subordinated Debentures and the Capital Securities
substantially in accordance with the purposes set forth under "Use of Proceeds"
in the Prospectus.
(i) The Offerors will use its best efforts to maintain
the designation of the Capital Securities on 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 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 NASD of the terms of the sale of the Capital 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 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 Capital Securities under state securities or Blue Sky
laws; the fees and expenses incurred in connection with the designation of the
Capital Securities on the Nasdaq National Market; the costs of preparing
certificates representing Junior Subordinated Debentures or Capital 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 Capital 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 Capital 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 Section 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
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14
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, including fees and disbursements of counsel
reasonably incurred in connection with investigating, marketing and proposing
to market the Capital Securities or in contemplation of performing 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 Capital 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
Capital Securities on the Closing Date are subject to the condition that 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, P.C., 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 Capital 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.
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15
(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 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 Capital 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 Capital Securities at the time such
interest income is paid or accrued in accordance with such xxxxxx'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
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16
accordance 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 and the Trust is not a party to or otherwise
bound by any 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 Capital 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 Capital Securities, the Common Securities, the Junior
Subordinated Debentures 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, 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 Certificate or any permit,
judgment, order 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
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17
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 Capital
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 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 Capital 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 Capital 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.
(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 schedules included therein).
(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, -- Option to Extend Interest
Payment Period; Tax Consequences of Deferral of Interest Payments, and --
Possible Tax Law Changes Affecting the Capital Securities" and "Certain Federal
Income Tax Consequences" and (B) in the Registration Statement in Item 15,
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) The reports of the Company incorporated by
reference in the Registration Statement and the Prospectus or any further
amendment or supplement thereto made
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18
by the Company (other than the financial statements, other financial data and
related schedules therein, as to which such counsel need express no opinion),
when they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder. Such counsel does not know of any
contracts, agreements, documents or instruments required to be filed as
exhibits to any such reports or described in any such reports which are not so
filed or described as required; and insofar as any statements in any such
report constitute summaries of any contract, agreement, document or instrument
to which 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.
(xviii) 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).
(xix) Neither the Company nor the Trust is, and
immediately upon completion of the sale of Capital 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.
(xx) 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,
including any document incorporated by reference in the Registration Statement,
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, including any document
incorporated by reference in the Prospectus (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
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19
statements therein, in light of the circumstances in which they were made, not
misleading; and they do not know of any amendment to the Registration Statement
(or any document incorporated therein by reference) required to be filed.
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 & X'Xxxxxx, 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 the State of Colorado 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.
(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" and in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 under the caption "Government Regulation (including the
subcaptions thereunder "Vectra," "Vectra Banks," "Changing Regulatory
Structure" and "Effect on Economic Environment"), 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
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20
instrument or obligation known to such counsel to which the Company or the Bank
is a party or by which the Company or the Bank 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 any 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 Capital
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, 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:
(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.
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(e) The Underwriters shall have received on the Closing
Date the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, as special counsel for the
Offerors, dated the Closing Date, addressed to the Underwriters, to the effect
that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust under the Delaware 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 Capital Securities and the Common
Securities.
(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 __ is an appropriate form of
certificate to evidence ownership of the Capital Securities. The Capital
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 Capital 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 Capital 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 Capital Securities and the Common Securities is not
subject to preemptive or similar rights.
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(viii) The issuance and sale by the Trust of the
Capital 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 regulation.
(f) The Underwriters shall have received from Xxxxxxx &
Xxxxxx L.L.C., counsel for the Underwriters, an opinion dated the Closing Date,
with respect to the formation of the Trust, the validity of the Capital
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 KPMG Peat Marwick, to the effect that they are independent public
accountants with respect to the Trust, the Company and the Subsidiaries within
the meaning of the 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 Capital
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 chief
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.
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23
(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.
(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 &
Xxxxxx L.L.C., 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).
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
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24
failure to act by any Underwriter in connection with, or relating in any manner
to, the Capital 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) in 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 with written
information 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 such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence 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
- 24 -
25
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 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 indemnifying
party and the indemnified party and 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 Capital
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, claims, damages or liabilities (or actions or proceedings
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26
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, access to information and
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 Capital
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.
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/o Xxxx
Xxxxxxxx Incorporated, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: X. Xxxxx Xxxxx, Managing Director, with a copy to Xxxxxx X. Xxxxx,
Xx., Esq., Xxxxxxx & Xxxxxx L.L.C., 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000; if to the Company, to Vectra Banking Corporation, 0000 Xxxxx
Xxxxxxxx Xxxxxxxxx, #000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxx,
President, with a copy to Xxxx X. Xxxxxxx, Esq., Xxxxx & Xxxxxx, P.C., 0000
Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000; and if to the Trust, to it at
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-
0000, Attention: Corporate Trust Administration. All notices given by telegram
shall be promptly confirmed by letter. Any notice to the Trust shall also be
copied to the Company at the address previously stated, Attention: Xxx X. Xxxx,
Chief Financial Officer. Any party may change its address for notice purposes
by written notice to the other parties.
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9. Termination. This Agreement may be terminated by you by
notice to the Offerors as follows:
(a) at any time prior to the earlier of (i) the time the
Capital Securities are released by you for sale by notice to the Underwriters
or (ii) 10:00 A.M., Denver time, on the first business day following the later
of the date on which the Registration Statement became effective or the date of
this Agreement;
(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 Capital
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 Nasdaq 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.
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 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.
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 Capital Securities merely because of
such purchase.
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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 Capital Securities under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner
as 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 Minnesota.
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,
VBC CAPITAL I, a Delaware business trust
By:
------------------------------------------
Xxxx X. Xxxx, Administrative Trustee
VECTRA BANKING CORPORATION
By:
------------------------------------------
Xxxx X. Xxxx, President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
XXXX XXXXXXXX INCORPORATED
XXXX XXXXXX INVESTMENTS, INC.
By: Xxxx Xxxxxxxx Incorporated
By:
------------------------------------
X. Xxxxx Xxxxx, Managing Director
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SCHEDULE A
SCHEDULE OF UNDERWRITERS
Number of
Capital Securities
Underwriter to be Purchased
----------- -------------------
Xxxx Xxxxxxxx Incorporated . . . . . . . . . . . . . . . . . .
Xxxx Xxxxxx Investments, Inc. . . . . . . . . . . . . . . . . _______
Total 700,000
=======
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SCHEDULE B
STOCK HELD OTHER THAN
CAPITAL SECURITIES OF SUBSIDIARIES
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