1
EXHIBIT 1.1
$20,000,000 PREFERRED SECURITIES*
FW CAPITAL I
_____% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION PREFERENCE OF $10 PER TRUST PREFERRED SECURITY)
UNDERWRITING AGREEMENT
December __, 1998
Xxxx Xxxxxx Investments, Inc.
As Representative of the several Underwriters
named in Schedule A
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
First Western Corporation, a Nebraska corporation (the "Company"), and
its fiduciary subsidiary, FW 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 $20,000,000, representing 2,000,000 securities of the Trust's ___%
Cumulative Trust Preferred Securities, with a liquidation preference of $10.00
per preferred security (the "Firm Preferred Securities"). In addition, the
Offerors propose to grant to the Underwriters an option to purchase up to
$3,000,000, representing 300,000 securities, of the Trust's ___% Cumulative
Trust Preferred Securities, with a liquidation preference of $10.00 per
preferred security (the "Option Preferred Securities") as provided in Section 2
hereof. The Firm Preferred Securities and the Option Preferred Securities are
hereinafter collectively referred to as the "Preferred Securities." The
Offerors propose that the Trust issue the Preferred Securities pursuant to a
Trust Agreement, as amended and restated, among Wilmington Trust Company, as
Property Trustee and Delaware Trustee, the administrative trustees named
therein (the "Administrative Trustees") and the Company (the "Trust
Agreement"). The Preferred Securities will be guaranteed by the Company with
respect to distributions and payments upon liquidation, redemption and
otherwise (the "Guarantee") pursuant to a Guarantee Agreement (the "Guarantee
Agreement"), to be dated December __, 1998, between the Company and Wilmington
Trust Company, as trustee (the "Guarantee Trustee"), and entitled to the
benefits of certain backup undertakings described in the Prospectus (as defined
herein) with respect to the Company's agreement pursuant to the Expense
Agreement (as defined herein) to pay all expenses relating to administration of
the Trust.
The proceeds of the sale of the Preferred Securities will be used to
purchase junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures") issued by the Company pursuant to an Indenture, to be
dated December __, 1998, between the Company and Wilmington Trust Company, as
trustee (the "Indenture").
--------------------
* THE OFFERORS HAVE GRANTED TO THE UNDERWRITERS AN OPTION TO PURCHASE UP
TO $3,000,000, REPRESENTING 300,000 TRUST PREFERRED SECURITIES.
2
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form SB-2 (File Nos. __________
and __________) and a related preliminary prospectus for the registration of
the Preferred Securities, the Guarantee and the Junior Subordinated Debentures,
under the Securities Act of 1933, as amended (the "Act") and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules and
regulations thereunder. The registration statement, as amended, at the time it
was declared effective, including the information (if any) deemed to be part
thereof pursuant to Rule 430A under the Act, is herein referred to as the
"Registration Statement." The form of prospectus first filed by the Offerors
with the Commission pursuant to Rules 424(b) and 430A under the Act is referred
to herein as the "Prospectus." Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective or filed with the
Commission pursuant to Rule 424(a) under the Act is referred to herein as a
"Preliminary Prospectus." The Securities Exchange Act of 1934, as amended, is
referred to herein as the "Exchange Act." Copies of the Registration
Statement, including all exhibits and schedules thereto, any amendments thereto
and all Preliminary Prospectuses have been delivered to you.
The Offerors hereby confirm their agreement with respect to the
purchase of the Preferred Securities by the Underwriters as follows:
1. Representations and Warranties of the Offerors. (a) The
Offerors jointly and severally represent and warrant to, and agree with, each
of the Underwriters that:
(i) The Registration Statement has been declared
effective under the Act, and no post-effective amendment to the
Registration Statement has been filed with the Commission as of the
date of this Agreement. No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose has been instituted or threatened by the Commission.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission
promulgated thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Offerors make no representation or warranty as to
information contained in or omitted in reliance upon, and in
conformity with, written 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
-2-
3
Registration Statement nor any amendment thereto, and neither the
Prospectus nor any supplement thereto, contains or will contain, as
the case may be, any untrue statement of a material fact or omits or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Offerors make no representation or warranty as to
(i) information contained in or omitted from the Registration
Statement or the Prospectus, or any such amendment or supplement, in
reliance upon, and in conformity with, written information furnished
to the Offerors by or on behalf of any Underwriter, expressly for use
in the preparation thereof or (ii) information in those parts of the
Registration Statement which constitute the Statement of Eligibility
and Qualification ("Form T1") under the Trust Indenture Act.
(iv) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act
with full trust power and authority to own property and to conduct its
business as described in the Registration Statement and Prospectus and
is authorized to do business in each jurisdiction in which such
qualification is required, except where the failure to so qualify
would not have a material adverse effect on the Trust's condition
(financial or otherwise), earnings, business, prospects, assets,
results of operations or properties taken as a whole; the Trust has
conducted and will conduct no business other than the transactions
contemplated by the Trust Agreement and described in the Prospectus;
the Trust is not a party to or otherwise bound by any agreement other
than those described in the Prospectus; the Trust is and will be
classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation; and the
Trust is and will be treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting principles.
(v) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Nebraska 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"). Except as otherwise noted to you, 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 Firstate Bank, Xxxxxxx, Nebraska (the
"Nebraska Bank") and Firstate Bank of Colorado (the "Colorado Bank,"
and together with the Nebraska Bank, the "Banks"). The Banks and any
other entities owned by the Company being collectively referred to
herein as the "Subsidiaries". Each Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own or lease its properties and
conduct its business as described in the Prospectus, and is duly
qualified to transact business in all jurisdictions in which the
conduct of its business or its ownership or leasing or property
requires such qualification and the failure so to qualify would have a
material adverse effect on the business or condition, financial or
otherwise, of the Company and the Subsidiaries, taken as a whole. All
outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and
non-assessable, and are owned, directly or indirectly, by the Company
free and clear of all liens,
-3-
4
encumbrances and security interests, except as otherwise noted to you.
No options, warrants or other rights to purchase, agreements or other
obligations to issue, or other rights to convert any obligations into,
shares of capital stock or ownership interests in any of the
Subsidiaries are outstanding.
(vi) All of the issued and outstanding shares of capital
stock of the Company are duly authorized, validly issued, fully paid
and nonassessable, were offered and sold in compliance with all
federal and state securities laws, and were not issued in violation of
or subject to any preemptive rights or other rights to subscribe for
or purchase securities. Except as otherwise stated in the Registration
Statement and Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction upon the
voting or transfer of, the Junior Subordinated Debentures, the common
securities of the Trust held by the Company (the "Common Securities")
or the Preferred Securities. Neither the filing of the Registration
Statement nor the registration of the Preferred Securities, the
Guarantee or the Junior Subordinated Debentures gives rise to any
rights for or relating to the registration of any capital stock or
other securities of the Company or the Trust. The Company has an
authorized and outstanding capitalization as set forth in the
Registration Statement and the Prospectus.
(vii) Each of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Agreement as to Expenses
and Liabilities (the "Expense Agreement") has been duly authorized,
executed and delivered by the Company and/or the Trust, as the case
may be, and constitutes a valid, legal and binding obligation of the
Company and/or the Trust, as the case may be, enforceable in
accordance with its terms, except as rights to indemnity hereunder may
be limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity and, with
respect to Section 7 hereof, by the public policy underlying the
federal or state securities laws. The execution, delivery and
performance of this Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement and the consummation of
the transactions herein or therein contemplated will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any indenture, mortgage, deed
of trust, loan agreement, lease, franchise, license or other agreement
or instrument to which the Trust, the Company or any of the
Subsidiaries is a party or by which the Trust, the Company or any of
the Subsidiaries is bound or to which any property or assets of the
Trust, the Company or any of the Subsidiaries is subject, the
Company's or any Subsidiary's charter or bylaws, the Trust Agreement
or the Trust's certificate of trust filed with the State of Delaware
on _______________, 1998 (the "Certificate of Trust") or any order,
rule, regulation or decree of any court or governmental agency or body
having jurisdiction over the Company, any Subsidiary or the Trust or
having jurisdiction over any of the properties of the Company, any
Subsidiary or the Trust. No consent, approval, authorization or 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
-4-
5
sale of the Junior Subordinated Debentures by the Company and the
Common Securities and the Preferred Securities by the Trust, except
such as may be required under the Act, all of which have been obtained
or made, and under state securities or blue sky laws. Each of the
Company and the Trust, as the case may be, has full power and
authority to enter into this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Expense Agreement, as the
case may be, and to authorize, issue and sell the Junior Subordinated
Debentures or the Common Securities and the Preferred Securities, as
the case may be, as contemplated by this Agreement; and each of the
Indenture, the Trust Agreement and the Guarantee Agreement has been
duly qualified under the Trust Indenture Act and will conform in all
material respects to the statements relating thereto in the
Registration Statement and the Prospectus.
(viii) The Junior Subordinated Debentures have been duly
authorized by the Company and at the Closing Date will have been duly
executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as
described in the Prospectus, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject
to general principles of equity, will be in the form contemplated by,
and entitled to the benefits of, the Indenture, will conform to the
statements relating thereto in the Prospectus, and will be owned by
the Trust free and clear of any security interest, pledge, lien,
encumbrance, claim or equity.
(ix) The Common Securities have been duly authorized by
the Trust Agreement and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Prospectus, will
be validly issued and (subject to the terms of the Trust Agreement)
fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and will conform to all statements relating
thereto contained in the Prospectus; and at the Closing Date all of
the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest,
pledge, lien, encumbrance, claim or equity.
(x) The Preferred Securities have been duly authorized by
the Trust Agreement and, when issued and delivered pursuant to this
Agreement against payment of the consideration set forth herein, will
be validly issued and fully paid and non-assessable undivided
beneficial interests in the Trust, will be entitled to the benefits of
the Trust Agreement and will conform to the statements relating
thereto contained in the Prospectus; and holders of Preferred
Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of private
corporations for profit.
(xi) The Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement are in substantially the
respective forms filed as exhibits to the Registration Statement.
-5-
6
(xii) The Company's obligations under the Guarantee
Agreement are subordinated and junior in right of payment to all
Senior and Subordinated Debt (as defined in the Indenture) of the
Company.
(xiii) The Junior Subordinated Debentures are subordinate
and junior in right of payment to all Senior and Subordinated Debt of
the Company.
(xiv) Each of the Administrative Trustees of the Trust is
an officer of the Company and has been duly authorized by the Company
to execute and deliver the Trust Agreement.
(xv) The financial statements, together with the related
notes and schedules, contained in the Registration Statement and
Prospectus present fairly the consolidated financial position, results
of operations, shareholders' equity and cash flows of the Company and
its consolidated Subsidiaries on the basis stated therein at the
indicated dates and for the indicated periods. Such financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of
results for such periods have been made, except as otherwise stated
therein. The selected financial and statistical data included in the
Registration Statement present fairly the information shown therein on
the basis stated in the Registration Statement and have been compiled
on a basis consistent with the financial statements presented therein.
(xvi) There is no action or proceeding pending or, to the
knowledge of the Trust or the Company, threatened or contemplated
against any of the Trust, the Company or any Subsidiary before any
court or administrative or regulatory agency which, if determined
adversely to the Trust, the Company or such Subsidiary would,
individually or in the aggregate, result in a material adverse change
in the business or condition (financial or otherwise), results of
operations, shareholders' equity or prospects of the Trust, the
Company or such Subsidiary, taken as a whole, except as set forth in
the Registration Statement.
(xvii) There are no contracts or documents of the Trust or
the Company or any Subsidiary that are required by the Act or by the
rules and regulations thereunder to be filed as exhibits to the
Registration Statement which contracts or documents have not been so
filed.
(xviii) The Company and the Subsidiaries have good and
marketable title to all properties and assets reflected as owned in
the financial statements hereinabove described (or as described as
owned in the Prospectus), in each case free and clear of all liens,
encumbrances and defects, except such as are described in the
Prospectus or do not substantially affect the value of such properties
and assets and do not materially interfere with the use made and
proposed to be made of such properties and assets by the Company and
the Subsidiaries; and any real property and buildings held under lease
by the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and the
Subsidiaries.
-6-
7
(xix) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or
supplemented, (A) there has not been any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the condition, financial or otherwise, of the Trust, the
Company and the subsidiaries taken as a whole, or the business
affairs, management, financial position, shareholders' equity or
results of operations of the Trust, the Company and the Subsidiaries,
taken as a whole, whether or not occurring in the ordinary course of
business, including, without limitation, any material increase in the
amount or number of classified assets of the Banks, any decrease in
net interest margin for any month to a level below ___%, or any
material decrease in the volume of loan originations, the amount of
deposits or the amount of loans, (B) there has not been any
transaction not in the ordinary course of business entered into by the
Trust, the Company or any of the Subsidiaries which is material to the
Trust, the Company and the Subsidiaries, taken as a whole, other than
transactions described or contemplated in the Registration Statement,
(C) the Trust, the Company and the Subsidiaries have not incurred any
material liabilities or obligations, which are not in the ordinary
course of business or which could result in a material reduction in
the future earnings of the Trust, the Company and the Subsidiaries,
(D) the Trust, the Company and the Subsidiaries have not sustained any
material loss or interference with their respective businesses or
properties from fire, flood, windstorm, accident or other calamity,
whether or not covered by insurance, (E) there has not been any change
in the capital stock of the Company or the Subsidiaries (other than
upon the exercise of options and warrants described in the
Registration Statement), or any material increase in the short-term or
long-term debt (including capitalized lease obligations) of the
Company 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.
(xx) Neither the Company nor any of the Subsidiaries is in
violation of its respective charter or Bylaws; the Trust is not in
violation of the Trust Agreement or its Certificate of Trust; and none
of the Trust, the Company, or the Subsidiaries is in violation of or
otherwise in default under any statute, or any rule, regulation,
order, judgment, decree or authorization of any court or governmental
or administrative agency or body having jurisdiction over the Trust,
the Company or any of the Subsidiaries or any of their properties, or
any indenture, mortgage, deed of trust, loan agreement, lease,
franchise, license or other agreement or instrument to which the
Trust, the Company or any of the Subsidiaries is a party or by which
any of them are bound or to which any property or assets of the Trust,
the Company or any of the Subsidiaries is subject, which violation or
default would have a material adverse effect on the business,
condition (financial or otherwise), results of operations,
shareholders' equity or prospects of the Trust, the Company and the
Subsidiaries, taken as a whole.
(xxi) The Trust, the Company and each of the Subsidiaries
holds and is operating in compliance with all licenses, approvals,
certificates and permits from governmental and regulatory authorities,
foreign and domestic, which are necessary to the conduct of its
business as described in the Prospectus. Without limiting the
generality of the foregoing, the
-7-
8
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.
(xxii) To the best of the Offerors' knowledge, Xxxxxxx
Xxxxxxxxx L.L.C. which has certified certain of the financial
statements filed with the Commission as part of the Registration
Statement, are independent public accountants as required by the Act
and the rules and regulations thereunder.
(xxiii) The Offerors have not taken and will not take,
directly or indirectly, any action designed to, or which has
constituted, or which might reasonably be expected to cause or result
in, stabilization or manipulation of the price of the Preferred
Securities.
(xxiv) The Offerors' registration statement pursuant to
Section 12(g) of the Exchange Act with respect to the Preferred
Securities, has been declared effective by the Commission; the
Preferred Securities have been approved for quotation and trading,
upon notice of issuance, on the American Stock Exchange under the
symbol "FWC.Pr.A."
(xxv) The Offerors have not distributed and will not
distribute any prospectus or other offering material in connection
with the offering and sale of the Preferred Securities other than any
Preliminary Prospectus or the Prospectus or other materials permitted
by the Act to be distributed by the Company.
(xxvi) The deposit accounts of the Banks 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 Nebraska Department of Banking and Finance, the
Colorado Division of Banking, or any other regulatory authority to
make any material change in the method of conducting their respective
businesses that has not been complied with in all material respects.
(xxvii) Neither the Offerors nor any of their affiliates does
any business, directly or indirectly, with the government of Cuba or
with any person or entity located in Cuba.
(xxviii) The Trust, the Company and the Subsidiaries, to the
best of their knowledge, have filed all federal, state, local and
foreign tax returns or reports required to be filed, and have paid in
full all taxes indicated by said returns or reports and all
assessments received by it or any of them to the extent that such
taxes have become due and payable, except where the Trust, the Company
and the Subsidiaries are contesting in good faith such taxes and
assessments. The Company and the Subsidiaries have also filed all
required applications, reports, returns and other documents and
information with all state and federal banking authorities and
agencies.
-8-
9
(xxix) The Trust, the Company and each of the Subsidiaries,
to the best of their knowledge, owns or licenses all patents, patent
applications, trademarks, service marks, tradenames, trademark
registrations, service xxxx registrations, copyrights, licenses,
inventions, trade secrets and other similar rights necessary for the
conduct of their businesses as described in the Prospectus. Neither
the Trust, the Company nor any of the Subsidiaries has any knowledge
of any infringement of any patents, patent applications, trademarks,
service marks, tradenames, trademark registrations, service xxxx
registrations, copyrights, licenses, inventions, trade secrets or
other similar rights of others, and none of the Trust, the Company or
any of the Subsidiaries has received any notice or claim of conflict
with the asserted rights of others with respect to any of the
foregoing.
(xxx) None of the Trust, the Company or any of the
Subsidiaries is an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended, or an "investment adviser" within the meaning
of the Investment Advisers Act of 1940, as amended.
(xxxi) The Company and its Subsidiaries maintain, and the
Trust will maintain, a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (C) access to records is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(xxxii) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred
any liability for any finder's or broker's fee or agent's commission
in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(xxxiii) No report or application filed by the Company or any
of its subsidiaries with the Fed, the FDIC, the Nebraska Department of
Banking and Finance 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, the Nebraska Department of Banking and Finance or the Colorado
Division of Banking, as the case may be.
(xxxiv) The proceeds from the sale of the Preferred
Securities will constitute "Tier 1" capital (as defined in 12 C.F.R.
Part 325), subject to applicable regulatory restrictions on the amount
thereof that can be included in Tier 1 capital.
(xxxv) The Offerors meet all of the requirements for the use
of Form SB-2 to register the Preferred Securities, the Guarantee and
the Common Securities under the Act.
-9-
10
(b) Any certificate signed by or on behalf of the Trust or the
Company and delivered to the Underwriters or counsel to the Underwriters shall
be deemed to be a representation and warranty of the Trust or the Company to
each Underwriter as to the matters covered thereby.
2. Purchase, Sale and Delivery of Preferred Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Trust agrees to issue
and sell to each Underwriter, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Trust, at a purchase price per Preferred
Security of $10.00, the number of Firm Preferred Securities set forth opposite
the name of such Underwriter in Schedule A hereto. As compensation to the
Underwriters for their commitments hereunder and in view of the fact that the
proceeds of the sale of the Preferred Securities (together with the entire
proceeds from the sale by the Trust to the Company of the Common Securities)
will be used to purchase the Junior Subordinated Debentures, the Company hereby
agrees to pay at the Closing Date to you a commission of $0.40 per Preferred
Security sold by the Trust hereunder.
The Firm Preferred Securities will be delivered by the Company to you
against payment of the purchase price therefor at the offices of Xxxxx &
Xxxxxx, Denver, Colorado, or such other location as may be mutually acceptable,
at 8:00 a.m. Mountain time on December __, 1998, or such other time and date as
you and the Company may agree upon in writing, such time and date of delivery
being herein referred to as the "First Closing Date." The purchase price shall
be payable by wire transfer of immediately available funds to an account, such
account to be designated by the Trust at least two business days preceding the
First Closing Date. The Underwriters' commission shall be payable by wire
transfer of immediately available funds to an account, such account to be
designated by the Underwriters at least two business days preceding the First
Closing Date. Delivery of the Firm Preferred Securities may be made by credit
through full fast transfer to the accounts at The Depository Trust Company
designated by you. Certificates representing the Firm Preferred Securities, in
definitive form and in such denominations and registered in such names as you
may request upon at least two business days' prior notice to the Company shall
be prepared and will be made available for checking and packaging, not later
than 10:30 a.m., Central time, on the business day next preceding the First
Closing Date at the offices of Xxxx Xxxxxx Investments, Inc., 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such other location as may be mutually
acceptable.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of 300,000 Option
Preferred Shares, at the same purchase price per share to be paid for the Firm
Preferred Shares, for use solely in covering any overallotments made by the
Underwriters in the sale and distribution of the Firm Preferred Shares. The
option granted hereunder may be exercised at any time (but not more than once)
within 30 days after the date of the initial public offering upon notice by you
to the Company setting forth the aggregate number of Option Preferred Shares as
to which the Underwriters are exercising the option, the names and
denominations in which the certificates for such shares are to be registered
and the time and place at which such certificates will be delivered. Such time
of delivery (which may not be earlier than the First Closing Date), being
herein referred to as the "Second Closing Date," shall be determined by you,
but if at any time other than the First
-10-
11
Closing Date, shall not be earlier than three nor later than 10 full business
days after delivery of such notice of exercise. The number of Option Preferred
Shares to be purchased by each Underwriter shall be determined by multiplying
the number of Option Preferred Shares to be sold by the Company pursuant to
such notice of exercise by a fraction, the numerator of which is the number of
Firm Preferred Shares to be purchased by such Underwriter as set forth opposite
its name in Schedule A and the denominator of which is the total number of Firm
Preferred Shares (subject to such adjustments to eliminate any fractional share
purchases as you in your absolute discretion may make). Certificates for the
Option Preferred Shares will be made available at the Company's expense for
checking and packaging at 10:30 a.m., Chicago Time, on the business day
preceding the Second Closing Date. The manner of payment for and delivery of
the Option Preferred Shares shall be the same as for the Firm Preferred Shares
as specified in the preceding paragraph.
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
Preferred Securities to be purchased by such Underwriter. Any such payment
shall not relieve such other Underwriter of any of its obligations hereunder.
Nothing herein contained shall constitute the Underwriters an unincorporated
association or partner with either or both Offerors.
3. Offering by Underwriters. It is understood that the several
Underwriters propose to make a public offering of the Preferred Securities as
soon as the Underwriters deem it advisable to do so. The Preferred Securities
are to be initially offered to the public at the initial public offering price
set forth in the Prospectus. The Underwriters may from time to time thereafter
change the public offering price and other selling terms.
4. Covenants of the Offerors. The Offerors jointly and severally
covenant and agree with the several Underwriters that:
(a) The Offerors will prepare and timely file with the
Commission under Rule 424(b) under the Act a Prospectus containing
information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A under the Act, and
will not file any amendment to the Registration Statement or
supplement to the Prospectus of which the Underwriters shall not
previously have been advised and furnished with a copy and as to which
the Underwriters shall have reasonably objected in writing promptly
after reasonable notice thereof or which is not in compliance with the
Act or the rules and regulations thereunder.
(b) The Offerors will advise the Underwriters promptly of
any request of the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any additional
information, or of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the use
of the Prospectus, of the suspension of the qualification of the
Preferred Securities for offering or sale in any jurisdiction, or of
the institution or threatening of any proceedings for that purpose,
and the Offerors will use their best efforts to prevent the issuance
of any such stop order preventing or suspending the use of the
Prospectus or suspending such qualification and to obtain as soon as
possible the lifting thereof, if issued.
-11-
12
(c) The Offerors will cooperate with you and your counsel
in order to qualify the Preferred Securities for sale under the
securities laws of such jurisdictions as the Underwriters may
reasonably have designated in writing and to continue such
qualifications in effect for so long as the Underwriters may
reasonably request for distribution of the Preferred Securities (or
obtain exemptions from the application of such laws), provided that
neither Offeror shall be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction
where it is not now so qualified or required to file such a consent.
The Offerors will, from time to time, prepare and file such
statements, reports and other documents as may be requested by the
Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as
many copies of any Preliminary Prospectus as the Underwriters may
reasonably request and, during the period when delivery of a
prospectus is required under the Act, the Offerors will furnish the
Underwriters with as many copies of the Prospectus in final form, or
as thereafter amended or supplemented, as the Underwriters may, from
time to time, reasonably request. The Offerors will deliver to the
Underwriters, at or before the Closing Date, two signed copies of the
Registration Statement and all amendments thereto including all
exhibits filed therewith, and will deliver to the Underwriters such
number of conformed copies of the Registration Statement, without
exhibits, and of all amendments thereto, as the Underwriters may
reasonably request.
(e) If, during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer, any event
shall occur as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, not misleading, or if for
any other reason it shall be necessary at any time to amend or
supplement the Prospectus to comply with any law, the Offerors
promptly will prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the
Prospectus so that the Prospectus as so amended or supplemented will
not include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein in
light of the circumstances when it is so delivered, not misleading, or
so that the Prospectus will comply with law.
(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.
-12-
13
(g) The Company will, for five years from the First
Closing Date, deliver to each Underwriter, as soon as they are
available, copies of its annual report and copies of all other
documents, reports and information furnished by the Company to its
security holders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the
Act or the Exchange Act. The Company will deliver to each Underwriter
similar reports with respect to significant subsidiaries, as that term
is defined in the rules and regulations under the Act, which are not
consolidated in the Company's financial statements.
(h) The Offerors will apply the net proceeds from the
sale of the Junior Subordinated Debentures and the Preferred
Securities substantially in accordance with the purposes set forth
under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration,
filing and reporting requirements of the Exchange Act and the American
Stock Exchange.
5. Costs and Expenses. (a) The Offerors will pay (directly or by
reimbursement) all costs, expenses and fees incident to the performance of the
obligations of the Offerors under this Agreement, including, without limiting
the generality of the foregoing, the following: accounting fees of the
Offerors; the fees and disbursements of counsel for the Offerors; the cost of
preparing, printing and filing of the Registration Statement, Preliminary
Prospectuses and the Prospectus and any amendments and supplements thereto and
the printing, mailing and delivery to the Underwriters and dealers of copies
thereof and of this Agreement, the Selected Dealers Agreement, the Blue Sky
Memorandum, if deemed necessary by the Underwriters, after consultation with
the Offerors, and any supplements or amendments thereto (excluding, except as
provided below, fees and expenses of counsel to the Underwriters); the filing
fees of the Commission; the filing fees and expenses (including legal fees and
disbursements of counsel for the Underwriters) incident to securing any
required review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Preferred Securities; the fees and
expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee in connection with the Indenture and Junior
Subordinated Debentures; the fees and expenses of the Property Trustee and the
Delaware Trustee, including the fees and disbursements of counsel for the
Property Trustee and the Delaware Trustee in connection with the Trust
Agreement and the Certificate of Trust; the fees and expenses of the Guarantee
Trustee, including the fees and disbursements of counsel for the Guarantee
Trustee in connection with the Guarantee and Guarantee Agreement; listing fees,
if any, transfer taxes and the expenses, including the fees and disbursements
of counsel for the Underwriters, incurred in connection with the qualification
of the Preferred Securities under state securities or Blue Sky laws; the fees
and expenses incurred in connection with the designation of the Preferred
Securities on the American Stock Exchange; the costs of preparing certificates
representing Junior Subordinated Debentures or Preferred Securities; the costs
and fees of any registrar or transfer agent and all other costs and expenses
incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 5. In addition, the
Offerors will pay all travel and lodging expenses incurred by management of the
Offerors in connection with any informational "road show" meetings held in
connection with the offering and will also pay for the preparation of all
materials used in connection with such meetings. The Offerors shall not be
required to pay for any of the Underwriters' expenses (other than those related
to qualification of the Preferred Securities under state securities or Blue Sky
laws and those incident to securing any required review by the NASD
-13-
14
of the terms of the sale of the Preferred Securities which shall be paid by the
Offerors as provided above) except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Underwriters pursuant to Sections
9(a) or 9(b) hereof, or by reason of any failure, refusal or inability on the
part of the Offerors to perform any undertaking or satisfy any condition of
this Agreement or to comply with any of the terms hereof on either of their
parts to be performed, unless such failure to satisfy said condition or to
comply with said terms shall be due to the default or omission of any
Underwriter, then the Offerors promptly upon request by the Underwriters shall
reimburse the several Underwriters for all actual, accountable out-of-pocket
expenses, up to $25,000, including fees and disbursements of counsel reasonably
incurred in connection with investigating, marketing and proposing to market
the Preferred Securities 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 Preferred Securities.
(b) Upon successful completion of the offering contemplated by this
Agreement, the Offerors will pay all reasonable and customary costs, expenses
and fees incident to tombstone advertisements of the offering and incurred with
the approval of the Company.
6. Conditions of Obligations of the Underwriters. The several
obligations of the Underwriters to purchase the Firm Preferred Securities on
the First Closing Date and the Option Preferred Securities on the Second
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 First Closing Date or the Second Closing Date, as the case may be, 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 First
Closing Date or the Second Closing Date, as the case may be, the
opinion of Xxxxx & Xxxxxx, P.C., Denver, Colorado, counsel for the
Offerors, dated the Closing Date, addressed to the Underwriters, to
the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate
power and authority to own or lease its properties and conduct
its business as described in the Prospectus. All of the issued
and outstanding shares of the capital stock of the Company
have been duly authorized and validly issued and are fully
paid and nonassessable. The holders of the Company's
outstanding
-14-
15
securities are not entitled to any preemptive or other rights
to subscribe for the Junior Subordinated Debentures or the
Preferred Securities under the Company's Articles of
Incorporation or Bylaws and, to the knowledge of such counsel,
no such rights exist under any other agreement or arrangement.
The Company has authorized and outstanding capital stock as
described in the Prospectus.
(ii) Each Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own or
lease its properties and conduct its business as described in
the Prospectus. The outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable and is owned, directly or
indirectly, by the Company, free and clear of all liens,
encumbrances and security interests, other than security
interests specifically disclosed in the Prospectus. To the
knowledge of such counsel, no options, warrants or 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 T1 Statement of Eligibility of Wilmington
Trust Company to act as trustee under the Indenture, the Form
T1 Statement of Eligibility of Wilmington Trust Company to act
as trustee under the Trust Agreement, and the Form T1
Statement of Eligibility of Wilmington Trust Company to act as
trustee under the Guarantee Agreement have been duly qualified
under the Trust Indenture Act.
(v) The Junior Subordinated Debentures are in the
form contemplated by the Indenture, have been duly authorized,
executed and delivered by the Company and, when authenticated
by the Indenture Trustee in the manner provided for in the
Indenture and delivered against payment therefor, will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject
to general principles of equity.
(vi) The Junior Subordinated Debentures are
subordinate and junior in right of payment to all "Senior and
Subordinated Debt" (as defined in the Indenture) of the
Company.
(vii) Under current law, the Trust will be
classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a
corporation; accordingly, for United States federal income tax
purposes each beneficial owner of Preferred Securities will be
treated as owning an undivided
-15-
16
beneficial interest in the Junior Subordinated Debentures, and
stated interest on the Junior Subordinated Debentures
generally will be included in income by a holder of Preferred
Securities at the time such interest income is paid or accrued
in accordance with such holder's regular method of tax
accounting.
(viii) For federal income tax purposes, (a) the
Junior Subordinated Debentures will constitute indebtedness of
the Company and (b) the interest on the Junior Subordinated
Debentures will be deductible by the Company on an economic
accrual basis in accordance with Section 163(e) of the
Internal Revenue Code of 1986, as amended, and Treasury
Regulation Section 1.1637.
(ix) To the best of such counsel's knowledge and
information after due inquiry, the Trust is not required to be
authorized to do business in any other jurisdiction, except
where the failure to be so authorized would not have a
material adverse effect on the Trust's condition (financial or
otherwise), earnings, business, prospects, assets, results of
operations or properties taken as a whole and the Trust is not
a party to or otherwise bound by any material agreement other
than those described in the Prospectus.
(x) The Trust Agreement has been duly executed
and delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and
information after due inquiry, the Offerors are not in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or any other
instrument of which either of them is a party or by which
either of them may be bound, or to which any of the property
or assets of the Offerors is subject.
(xii) The Company has full corporate power and
authority and the Trust has full trust power and authority to
enter into this Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement and the Expense Agreement, as
applicable, and to issue the Junior Subordinated Debentures or
the Common Securities and Preferred Securities, as the case
may be, and to effect the transactions contemplated by this
Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement, as applicable, and each
of this Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement have been duly
authorized, executed and delivered by the Company and the
Trust, as applicable, and constitutes a valid, legal and
binding obligation of the Company and the Trust, as
applicable, enforceable in accordance with its terms (except
as rights to indemnity hereunder may be limited by federal or
state securities laws and except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject
to general principles of equity). The execution, delivery and
performance of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement, the
-16-
17
Preferred 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 governmental agency
or body is required for the execution, delivery and
performance of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement, the
Common Securities, the Preferred Securities, or the Junior
Subordinated Debentures, or for the consummation of the
transactions contemplated hereby or thereby (other than as may
be required by federal or state laws governing banks or bank
holding companies, the NASD, or by state securities and blue
sky laws, as to which such counsel need express no opinion),
including the issuance or sale of the Junior Subordinated
Debentures by the Company and the Common Securities and
Preferred Securities by the Trust, except (a) such as may be
required under the Act, which have been obtained or made, or
under state securities or blue sky laws, (b) such agreements,
instruments or obligations with respect to which valid
consents or waivers have been obtained by the Trust, the
Company or any of the Subsidiaries, and (c) the qualification
of the Trust Agreement, the Guarantee Agreement and the
Indenture under the Trust Indenture Act and the regulations
thereunder, all of which have been effected. The filing of
the Registration Statement and the registration of the Junior
Subordinated Debentures, the Guarantee and the Preferred
Securities under the Act does not give rise to any rights for
or relating to the registration of any shares of capital stock
or other securities of the Company.
(xiii) The Registration Statement has become
effective under the Act and, to the knowledge of such counsel,
no stop order proceedings with respect thereto have been
instituted or are pending or threatened by the Commission.
(xiv) The Registration Statement, the Prospectus
and each amendment or supplement, thereto comply as to form in
all material respects with the requirements of the Act and the
rules and regulations thereunder (except that such counsel
need express no opinion as to the financial statements and
related financial schedules contained in the financial
statements, Registration Statement, the Prospectus and each
amendment or supplement thereto).
-17-
18
(xv) The statements (A) in the Prospectus under
the captions "Risk Factors" -- Ranking of the Company's
Obligations Under the Junior Subordinated Debentures and the
Guarantee," and -- Option to Extend Interest Payment Period;
Tax Consequences; Market Price Consequences;" and "Certain
Federal Income Tax Consequences" and (B) in the Registration
Statement in [Item 24], insofar as such statements constitute
a summary of matters of law, are accurate summaries and fairly
present the information called for with respect to such
matters.
(xvi) Such counsel does not know of any contracts,
agreements, documents or instruments required to be filed as
exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus which are not so
filed or described as required; and insofar as any statements
in the Registration Statement or the Prospectus constitute
summaries of any contract, agreement, document or instrument
to which the Trust, the Company or any Subsidiary is a party,
such statements are accurate summaries and fairly present the
information called for with respect to such matters.
(xvii) Such counsel knows of no legal or
governmental proceeding, pending or threatened, before any
court or administrative body or regulatory agency, to which
the Trust, the Company or any of the Subsidiaries is a party
or to which any of the properties of the Trust, the Company or
any of the Subsidiaries is subject that are required to be
described in the Registration Statement or Prospectus and are
not so described, or statutes or regulations that are required
to be described in the Registration Statement or the
Prospectus that are not so described (other than any banking
laws (as defined below), as to which counsel need express no
opinion).
(xviii) Neither the Company nor the Trust is, and
immediately upon completion of the sale of Preferred
Securities contemplated hereby, neither the Company nor the
Trust will be, an "investment company" or a company
"controlled" by an investment company under the Investment
Company Act of 1940, as amended.
(xix) To the best of such counsel's knowledge,
neither the Company nor any of the Subsidiaries is in
violation of its respective charter or bylaws.
Such counsel shall also state that on the basis of such counsel's
review and participation in conferences in connection with the preparation of
the Registration Statement and the Prospectus, such counsel has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Offerors prior to the First Closing Date
or the Second Closing Date, as the case may be (other than the financial
statements and related schedules therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Prospectus or
any further amendment or supplement thereto made by the Offerors prior to the
First Closing Date or the Second Closing Date, as the case may be, (other than
the financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a
-18-
19
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 First
Closing Date or the Second Closing Date, as the case may be, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Offerors prior to the First Closing Date or the Second
Closing Date, as the case may be, (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
In rendering the above opinions, counsel may rely (i) as to matters of
law other than Nebraska 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 ____________________ banking counsel for the Company, dated the
First Closing Date or the Second Closing Date, as the case may be, addressed to
the Underwriters, to the effect that:
(i) The Banks have been duly chartered to conduct the
business of banking in their state of domicile and the Company has all
necessary power and authority to own the Banks. The Company and the
Banks 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 Banks, --
Competitive Banking Environment and -- Government Regulation and
Recent Legislation," insofar as such statements constitute a summary
of banking laws, are accurate summaries and fairly present the
information called for with respect to such matters.
(iii) Such counsel knows of no legal or governmental
proceeding, pending or threatened, before any court or administrative
body or regulatory agency, to which the Company or any of the
Subsidiaries is a party or to which any of the properties of the
Company or any of the Subsidiaries is subject that are required to be
described in the Registration Statement or Prospectus and are not so
described, or statutes or regulations that are required to be
described in the Registration Statement or the Prospectus that are not
so described.
(iv) The execution and delivery of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the
Expense Agreement and the consummation of the transactions herein and
therein contemplated do not and will not conflict with or result
-19-
20
in a violation of or default under any banking laws, or any permit,
judgment, decree or order known to such counsel, or any lease,
contract, indenture, mortgage, loan agreement or other agreement or
other instrument or obligation known to such counsel to which the
Company or the Banks are a party or by which the Company or the Banks
or any of their respective properties is bound.
(v) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body under banking laws is
necessary in connection with the execution and delivery of this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement
and the Expense Agreement and the consummation of the transactions
herein and therein contemplated, except such as have been obtained or
made, specifying the same.
(vi) The proceeds from the sale of the Preferred
Securities will constitute "Tier 1" capital (as defined in 12 C.F.R.
Part 325), subject to applicable regulatory limitations on the amount
thereof that can be included in Tier 1 capital.
(d) The Underwriters shall have received on the Closing
Date the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A. counsel to
Wilmington Trust Company, as Property Trustee under the Trust
Agreement, Indenture Trustee under the Indenture, and Guarantee
Trustee under the Guarantee Agreement, dated the First Closing Date or
the Second Closing Date, as the case may be, 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.
-20-
21
(e) The underwriters shall have received on the First
Closing Date or the Second Closing Date, as the case may be, the
opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., as special counsel for the
Offerors that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act,
and all filings required as of the date hereof under the Delaware Act
with respect to the creation and valid existence of the Trust as a
business trust have been made.
(ii) Under the Trust Agreement and the Delaware Act, the
Trust has the trust power and authority to own property and to conduct
its business, all as described in the Prospectus.
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company, the Property Trustee and each of the
Administrative Trustees, and is enforceable against the Company, the
Property Trustee and each of the Administrative Trustees in accordance
with its terms.
(iv) Under the Trust Agreement and the Delaware Act, the
Trust has the trust power and authority (i) to execute and deliver,
and to perform its obligations under, this Agreement, and (ii) to
issue, and to perform its obligations under, the Preferred Securities
and the Common Securities.
(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 E is an appropriate form of certificate
to evidence ownership of the Preferred Securities. The Preferred
Securities and the Common Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications hereinafter expressed in this paragraph (vi), fully
paid and non-assessable undivided beneficial interests in the assets
of the Trust. The respective holders of the Preferred Securities and
the Common Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. Such counsel may
note that the respective holders of the Preferred Securities and the
Common Securities may be obligated, pursuant to the Trust Agreement,
to make certain payments under the Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act, the
issuance of the Preferred Securities and the Common Securities is not
subject to preemptive or similar rights.
(viii) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the Trust of the
Junior Subordinated Debentures, the execution, delivery and
performance by the Trust of this Agreement and the Guarantee
-21-
22
Agreement, the consummation by the Trust of the transactions
contemplated by this Agreement and compliance by the Trust with its
obligations under this Agreement do not violate (a) any of the
provisions of the Certificate of Trust or the Trust Agreement or (b)
any applicable Delaware law or Delaware administrative regulations.
(f) The Underwriters shall have received from Xxxxxxx and Xxxxxx,
Chicago, Illinois, counsel for the Underwriters, an opinion dated the First
Closing Date or the Second Closing Date, as the case may be, with respect to
the formation of the Trust, the validity of the Preferred Securities, the
Indenture, the Trust Agreement, the Guarantee Agreement, the Expense Agreement,
this Agreement, the Registration Statement, the Prospectus, and other related
matters as the Underwriters may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters.
(g) The Underwriters shall have received on each of the date hereof,
the First Closing Date and any Second Closing Date a signed letter, dated as of
the date hereof, the First Closing Date or any Second Closing Date,
respectively, in form and substance satisfactory to the Underwriters, from
Xxxxxxx Xxxxxxxxx L.L.C. to the effect that they are independent public
accountants with respect to the Trust, the Company and the Subsidiaries within
the meaning of the 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 First Closing Date or the Second Closing Date, as the case may be,
there shall not have been any change or any development involving a reasonably
foreseeable change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Offerors
otherwise than as set forth or contemplated in the Prospectus, the effect of
which, in your reasonable judgment, is material and adverse to the Offerors and
makes it impracticable or inadvisable to proceed with the public offering or
the delivery of the Preferred Securities being delivered at the First Closing
Date or the Second Closing Date, as the case may be, on the terms and in the
manner contemplated in the Prospectus.
(i) The Underwriters shall have received on the First Closing Date
and the Second Closing Date, as the case may be, a certificate or certificates
of the chief executive officer and the principal financial officer of the
Company, to the effect that, as of such Closing Date each of them severally
represents as follows:
(i) The Prospectus was filed with the Commission pursuant
to Rule 424(b) within the applicable period prescribed for such filing
by the rules and regulations under the Act and in accordance with
Section 4 of this Agreement; no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for such purpose have been initiated or are, to his
knowledge, threatened by the Commission.
(ii) The representations and warranties of the Company set
forth in Section 1 of this Agreement are true and correct at and as of
the First Closing Date and the Second Closing Date, as the case may
be, and the Company has performed all of its obligations under this
Agreement to be performed at or prior to the First Closing Date and
the Second Closing Date, as the case may be.
-22-
23
(j) The Underwriters shall have received on the First Closing Date
and the Second Closing Date, as the case may be, a certificate or certificates
of the Administrative Trustees, to the effect that, as of such 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 First Closing Date and the Second Closing Date, as the case may
be, and the Trust has performed all of its obligations under this
Agreement to be performed at or prior to the First Closing Date and
the Second Closing Date, as the case may be.
(k) The Offerors shall have furnished to the Underwriters such
further certificates and documents as the Underwriters may reasonably have
requested.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Underwriters and to Xxxxxxx
and Xxxxxx, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Underwriters by notifying the Trust of such termination in writing or by
telegram at or prior to the First Closing Date. In such event, the Trust and
the Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 7 hereof).
Section 7. Indemnification. (a) The Offerors jointly and
severally agree to indemnify and hold harmless each Underwriter, each officer
and director thereof, and each person, if any, who controls any Underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities to which such Underwriter or such persons may became subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus or the
Prospectus, including any amendments or supplements thereto, (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, or (iii) any act or failure to
act or any alleged act or failure to act by any Underwriter in connection with,
or relating in any manner to, the Preferred Securities or the offering
contemplated hereby, and which is included as part of or referred to in any
losses, claims, damages or liabilities (or actions or proceedings in respect
-23-
24
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, recklessness or willful misconduct.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Offerors and the trustees and directors and officers who have signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Offerors or any such person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made, and will reimburse
any legal or other expenses reasonably incurred by the Offerors or any such
person in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that each Underwriter will be
liable in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission has been
made in the Registration Statement, any Preliminary Prospectus, the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Trust or the Company by or through the
Underwriters specifically for use therein. The obligations of the Underwriters
under this Section 7(b) are several in proportion to their respective
underwriting obligations and not joint.
(c) The Company agrees to indemnify the Trust against all loss,
liability, claim damage and expense whatsoever, which may become due from the
Trust under subsection (a).
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity or contribution may be sought pursuant to this Section 7, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 7(a) or (b) or contribution provided
for in Section 7(e) shall be available with respect to a proceeding to any
party who shall fail to give notice of such proceeding as provided in this
Section 7(d) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by the
failure to give such
-24-
25
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 Preferred
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Offerors on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Offerors on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Offerors bears to
the total underwriting discounts and commissions received by the underwriters,
in each case as set forth on the cover page of the prospectus. The
-25-
26
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 Preferred Securities purchased by
such Underwriter; and no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this Section 7(e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Offerors under this Section 7 shall be in
addition to any liability which the Offerors may otherwise have, and the
obligations of the Underwriters under this Section 7 shall be in addition to
any liability which the Underwriters may otherwise have.
Section 8. Notices. All communications hereunder shall be in
writing and, except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriters, to them c/x Xxxx
Xxxxxx Investments, Inc., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Senior Vice President and
Director of Corporate Finance; if to the Company, to First Western Corporation,
00000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx;
and if to the Trust, to it at c/o First Western Corporation, 00000 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx. 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.
Any party may change its address for notice purposes by written notice to the
other parties.
Section 9. Termination. This Agreement may be terminated by you
by notice to the Offerors as follows:
(a) At any time prior to the time this Agreement shall
become effective as to all its provisions, and any such termination
shall be without liability on the part of the Offerors to the
Underwriters (except for the expenses to be paid or reimbursed
pursuant to Section 5 and except to the extent provided in Section 7
hereof) or of any Underwriter to the Offerors;
(b) At any time prior to the First 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,
-26-
27
financial or otherwise, of the Trust, the Company and the Subsidiaries
taken as a whole or the business affairs, management, financial
position, shareholders' equity or results of operations of the Trust,
the Company and the Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, (ii) any outbreak or
escalation of hostilities or declaration of war or national emergency
after the date hereof or other national or international calamity or
crisis or change in economic or political conditions if the effect of
such outbreak, escalation, declaration, emergency, calamity, crisis or
change on the financial markets of the United States would, in your
judgment, make the offering or delivery of the Preferred Securities
impracticable or inadvisable, (iii) suspension of trading in
securities on the New York Stock Exchange or the American Stock
Exchange or limitation on prices (other than limitations on hours or
numbers of days of trading) for securities on either such Exchange, or
a halt or suspension of trading in securities generally which are
quoted on the American Stock Exchange or (iv) declaration of a banking
moratorium by either federal authorities or New York or Nebraska or
Colorado state authorities; or
(c) As provided in Section 6 of this Agreement.
Section 10. Written Information. For all purposes under this
Agreement (including, without limitation, Section 1, Section 3 and Section 7
hereof), the Offerors understand and agree with each of the Underwriters that
the following constitutes the only written information furnished to the
Offerors by the Underwriters specifically for use in preparation of the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto: (i) the per share "Price to Public" and per
share "Underwriting Discounts and Commissions" set forth on the cover page of
the Prospectus, (ii) the information relating to stabilization set forth on
page ____ of the Preliminary Prospectus and the Prospectus, and (iii) the
information set forth in the third and sixth paragraphs under the caption
"Underwriting" in the Preliminary Prospectus and the Prospectus.
Section 11. Successors. This Agreement has been and is made solely
for the benefit of and shall be binding upon the Underwriters, the Trust and
the Company and their respective successors, executors, administrators, heirs
and assigns, and the trustees and controlling persons and the officers and
directors of any such controlling person referred to herein, and no other
person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Preferred Securities merely because of
such purchase.
Section 12. Miscellaneous. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants in this Agreement shall remain in full force and
effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or controlling person
thereof, or by or on behalf of the Offerors or controlling persons thereof and
(c) delivery of and payment for the Preferred Securities under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction
or any provision hereof in any other jurisdiction.
-27-
28
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Illinois.
-28-
29
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,
FW CAPITAL I, a Delaware business trust
By
Xxxxxxx X. Xxxxx
Administrative Trustee
FIRST WESTERN CORPORATION
By
Xxxx X. Xxxxx
President
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the
date first above written.
XXXX XXXXXX INVESTMENTS, INC.
As Representative of the several
Underwriters named in Schedule A
By
Xxxxxx X. Xxxxxxxx
Senior Vice President
-29-
30
SCHEDULE A
SCHEDULE OF UNDERWRITERS
NUMBER OF
PREFERRED SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Xxxx Xxxxxx Investments, Inc. . . . . . . . . . . .
---------
TOTAL: 2,000,000
=========
