Exhibit 1.1
2,200,000 CAPITAL SECURITIES
XXXXXX CAPITAL TRUST I
______% CUMULATIVE CAPITAL SECURITIES
(LIQUIDATION PREFERENCE OF $25 PER CAPITAL SECURITY)
PURCHASE AGREEMENT
_____________, 2001
U.S. BANCORP XXXXX XXXXXXX INC.
XXXX XXXXXXXX XXXXXXX,
a division of Xxxx Xxxxxxxx Incorporated
U.S. Bancorp Center
c/o U.S. Bancorp Xxxxx Xxxxxxx Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Xxxxxx Financial Corporation, a Minnesota corporation (the "Company"),
and its fiduciary subsidiary, Xxxxxx Capital Trust 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 that the Trust
issue and sell to U.S. Bancorp Xxxxx Xxxxxxx Inc. and Xxxx Xxxxxxxx Xxxxxxx, a
division of Xxxx Xxxxxxxx Incorporated, (the "Underwriters") an aggregate of
2,200,000 of the Trust's ____% Cumulative Capital Securities, with a liquidation
preference of $25.00 per capital security (the "Capital Securities"), the terms
of which are more fully described in the Prospectus (as hereinafter defined).
The Offerors propose that the Trust issue the Capital Securities pursuant to an
Amended and Restated Trust Agreement among Wilmington Trust Company, as Property
Trustee and Delaware Trustee, the administrative trustees named therein (the
"Regular Trustees") and the Company (the "Trust Agreement"). The Capital
Securities will be guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise (the "Guarantee") pursuant
to a Preferred Securities Guarantee Agreement (the "Guarantee Agreement"), to be
dated _______________, 2001, between the Company and Wilmington Trust Company,
as trustee (the "Guarantee Trustee").
The proceeds of the sale of the Capital Securities will be used to
purchase junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures") issued by the Company pursuant to an Indenture, to be
dated ____________, 2001, between the Company and Wilmington Trust Company as
trustee as supplemented by a First Supplemental Indenture to be dated
___________________, 2001, between the Company and Wilmington Trust Company as
trustee (as supplemented, the "Indenture").
The Offerors hereby confirm their agreement with respect to the sale of
the Capital Securities to the Underwriters.
1. Registration Statement and Prospectus. A registration statement on
Form S-2 (File No. 333-___________) with respect to the Capital Securities, the
Guarantee and the Junior Subordinated Debentures, including a preliminary form
of prospectus, has been prepared by the Offerors in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations ("Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations thereunder and has been filed with the Commission;
and, if the Offerors have elected to rely upon Rule 462(b) of the Rules and
Regulations to increase the size of the offering registered under the Act, the
Offerors will prepare and file with the Commission a registration statement with
respect to such increase pursuant to Rule 462(b). Copies of such registration
statement(s) and amendments and each related preliminary prospectus have been
delivered to the Underwriters.
If the Offerors have elected not to rely upon Rule 430A of the Rules
and Regulations, the Offerors have prepared and will promptly file an amendment
to the registration statement and an amended prospectus (including a term sheet
meeting the requirements of Rule 434 of the Rules and Regulations) if necessary
to complete the Prospectus. If the Offerors have elected to rely upon Rule 430A
of the Rules and Regulations, they will prepare and file a prospectus (or a term
sheet meeting the requirements of Rule 434) pursuant to Rule 424(b) that
discloses the information previously omitted from the prospectus in reliance
upon Rule 430A. Such registration statement, as amended at the time it is or was
declared effective by the Commission, and, in the event of any amendment thereto
after the effective date and prior to the Closing Date (as hereinafter defined),
such registration statement as so amended (but only from and after the
effectiveness of such amendment), including a registration statement (if any)
filed pursuant to Rule 462(b) of the Rules and Regulations increasing the size
of the offering registered under the Act and information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rules 430A(b) and 434(d) of the Rules and Regulations, is hereinafter called the
"Registration Statement". The prospectus included in the Registration Statement
at the time it is or was declared effective by the Commission is hereinafter
called the "Prospectus", except that if any prospectus (including any term sheet
meeting the requirements of Rule 434 of the Rules and Regulations provided by
the Offerors for use with a prospectus subject to completion within the meaning
of Rule 434 in order to meet the requirements of Section 10(a) of the Rules and
Regulations) filed by the Offerors with the Commission pursuant to Rule 424(b)
(and Rule 434, if applicable) of the Rules and Regulations or any other such
prospectus provided to you by the Offeror for use in connection with the
offering of the Capital Securities (whether or not required to be filed by the
Offeror with the Commission pursuant to Rule 424(b) of the Rules and
Regulations) differs from the prospectus on file at the time the Registration
Statement is or was declared effective by the Commission, the term "Prospectus"
shall refer to such differing prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) from and after the time such
prospectus is filed with the Commission or transmitted to the Commission for
filing pursuant to such Rule 424(b) (and Rule 434, if applicable) or from and
after the time it is first provided to you by the Offeror for such use. The term
"Preliminary Prospectus" as used herein means the preliminary prospectus
included in any Registration Statement prior to the time it becomes or became
effective under the Act and any prospectus subject to completion as described in
Rule 430A or 434 of the Rules and Regulations.
2. Representations and Warranties of the Offerors.
(a) The Offerors represent and warrant to, and agree with, the
Underwriters as follows:
(i) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission and the
Preliminary Prospectus, at the time of filing thereof, 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 the light of the circumstances under which they were made,
not misleading; except that the foregoing shall not apply to statements
in or omissions from the Preliminary Prospectus in reliance upon, and
in conformity with, written information furnished to the Offerors by
either Underwriter for use in the preparation thereof.
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(ii) As of the time the Registration Statement (or
any post-effective amendment thereto, including a registration
statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the
Act) is or was declared effective by the Commission, upon the filing or
first delivery to the Underwriters of the Prospectus (or any supplement
to the Prospectus (including any term sheet meeting the requirements of
Rule 434 of the Rules and Regulations)) and at the Closing Date (as
hereinafter defined), (A) the Registration Statement and Prospectus (in
each case, as so amended and/or supplemented) conformed or will conform
in all material respects to the requirements of the Act and the Rules
and Regulations and the Registration Statement and Prospectus (in each
case as so amended and/or supplemented) conformed or will conform in
all material respects to the requirements of the Trust Indenture Act
and the rules and regulations thereunder, (B) the Registration
Statement (as so amended) did not or will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and (C) the Prospectus (as so supplemented) did not or will
not include 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 in which they are or
were made, not misleading; except that the foregoing shall not apply to
(i) statements in or omissions from any such document in reliance upon,
and in conformity with, written information furnished to the Offerors
by either Underwriter specifically for use in the preparation thereof
and (ii) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification ("Form T-1") under the Trust
Indenture Act. If the Registration Statement has been declared
effective by the Commission, no stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceeding for
that purpose has been initiated or, to the Offeror's knowledge,
threatened by the Commission. The Company meets the requirements for
use of Form S-2.
(iii) The documents of the Company incorporated by
reference in the Registration Statement and the Prospectus, when they
were filed with the Commission conformed in all material respects to
the requirements of the the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement and the Prospectus or any
further amendment or supplement thereto, when such documents are filed
with the Commission will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iv) The consolidated financial statements of the
Company, together with the related notes, incorporated by reference in
the Registration Statement, Preliminary Prospectus and Prospectus
comply in all material respects with the requirements of the Act and
the Exchange Act and fairly present the consolidated financial
condition of the Company and its consolidated subsidiaries as of the
dates indicated and the results of operations and changes in cash flows
for the periods therein specified in conformity with generally accepted
accounting principles consistently applied throughout the periods
involved and the independent public accountants whose reports are
contained therein are independent public accountants as required by the
Act and the Rules and Regulations. The summary financial information
included in the Preliminary Prospectus and Prospectus under the
captions "Selected Consolidated Financial Data," "Summary
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Consolidated Financial Data" and "Capitalization," present fairly the
information required to be stated therein. The Registration Statement,
Preliminary Prospectus and Prospectus include all pro forma financial
information required by the Act and the Rules and Regulations.
(v) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of
the State of Minnesota 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
"FRB"). The only subsidiaries of the Company other than the Trust,
(each a "Subsidiary" and collectively the "Subsidiaries") and the
percentage of issued and outstanding shares of stock of each such
Subsidiary owned of record and beneficially by the Company are set
forth in Exhibit A attached hereto. Each Subsidiary has been duly
organized and is validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization as the case may
be. Each of the Company and its Subsidiaries has full corporate power
and authority to own its properties and conduct its business as
currently being carried on and as described in the Registration
Statement and Prospectus, and is duly qualified to do business as a
foreign corporation in good standing under the corporation and
financial services laws of each jurisdiction in which the conduct of
its business or ownership or lease of its properties requires such
qualification and where the failure to be so qualified would,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects,
assets, results of operations or properties of the Company and its
Subsidiaries taken as a whole. Other than the foregoing Subsidiaries
and the Trust, the Company, directly or indirectly, owns no capital
stock or other equity, ownership or proprietary interest in any
company, partnership, association, trust or other entity. The accounts
of each of the Company's Subsidiaries which are banks are insured by
the Bank Insurance Fund of the Federal Deposit Insurance Corporation
(the "FDIC") up to the maximum applicable amount in accordance with the
rules and regulations of the FDIC, and no proceedings for the
termination or revocation of such membership or insurance are pending,
or, to the knowledge of the Company, threatened.
(vi) 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
to enter into and perform its obligations under this Agreement, the
Capital Securities, the Common Securities and the Trust Agreement 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 Company'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.
(vii) Except as contemplated in the Prospectus,
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Trust nor
the Company, nor any of its Subsidiaries has incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions, or declared or paid any dividends or made any
distribution of any kind with respect to its capital stock (other than
dividends paid in the ordinary course with respect to shares of the
Company's common stock (the
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"Common Stock") or any of its Subsidiaries' common stock); and there
has not been any change in the capital stock or any material change in
the short-term or long-term debt, or any issuance of options, warrants,
convertible securities or other rights to purchase the capital stock,
of the Trust, the Company or any of its Subsidiaries, or any material
adverse change, or any development involving a prospective material
adverse change, in the general affairs, condition (financial or
otherwise), business, key personnel, property, prospects, net worth or
results of operations of the Trust or the Company and its Subsidiaries,
taken as a whole.
(viii) Except as set forth in the Registration
Statement and the Prospectus or in the documents incorporated therein
by reference, there is not pending or, to the knowledge of the Trust or
the Company, threatened or contemplated, any action, suit or proceeding
to which the Trust or the Company or any of its Subsidiaries is a party
or to which any of their property or assets is the subject, before or
by any court or governmental agency, authority or body, or any
arbitrator.
(ix) There are no statutes, regulations, contracts or
documents that are required to be described in the Registration
Statement and Prospectus or be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations which contracts or
documents have not been so described or filed.
(x) Each of this Agreement, the Indenture, the Trust
Agreement and the Guarantee 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. The execution, delivery and performance of this
Agreement, the Indenture, the Trust Agreement and the Guarantee
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 agreement or instrument to which the Company or the Trust is a
party or by which it is bound or to which any of its property is
subject, the Company's articles or bylaws, the Trust's Trust Agreement
or its certificate of trust filed with the State of Delaware on April
__, 2001 (the "Certificate of Trust") or any order, rule, regulation or
decree of any court or governmental agency or body having jurisdiction
over the Company or the Trust or any of the properties of either the
Company 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 and the Guarantee or for the
consummation of the transactions contemplated hereby or thereby,
including the issuance or sale of the Junior Subordinated Debentures by
the Company and the Capital Securities by the Trust, except such as may
be required under the Act or state securities or blue sky laws; each of
the Company and the Trust has full power and authority to enter into
this Agreement, the Indenture, the Trust Agreement and the Guarantee
and to authorize, issue and sell the Junior Subordinated Debentures or
the Common Securities and the Capital Securities, as the case may be,
as contemplated by this Agreement; and each of the Indenture, the Trust
Agreement and the Guarantee Agreement has been duly qualified under the
Trust Indenture Act and will conform in all material respects to the
statements relating thereto in the Registration Statement and the
Prospectus.
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(xi) All of the issued and outstanding shares of
capital stock of the Company are duly authorized, validly issued, fully
paid and nonassessable, have been issued, in compliance with all
federal and state securities laws, were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or
purchase securities, and the holders thereof are not subject to
personal liability by reason of being such holders; and the capital
stock of the Company conforms to the description thereof in the
Registration Statement and Prospectus. 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, any shares of Common Stock
pursuant to the Company's articles, bylaws or any agreement or other
instrument to which the Company is a party or by which the Company is
bound. Neither the filing of the Registration Statement nor the
registration of the Capital Securities gives rise to any rights for or
relating to the registration of any shares of Common Stock or other
capital stock of the Company. All of the issued and outstanding shares
of capital stock of each of the Company's Subsidiaries have been duly
and validly authorized and issued and are fully paid and nonassessable,
and, except as otherwise described in the Registration Statement and
Prospectus and except for any directors' qualifying shares, the Company
owns, of record and beneficially, free and clear of any security
interests, claims, liens, proxies, equities or other encumbrances, all
of the issued and outstanding shares of such stock. Except as described
in the Registration Statement and the Prospectus, there are no options,
warrants, agreements, contracts or other rights in existence to
purchase or acquire from the Company or any Subsidiary of the Company
any shares of the capital stock of the Company or any Subsidiary of the
Company. The Company has an authorized and outstanding capitalization
as set forth in the Registration Statement and the Prospectus.
(xii) 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 and will conform in all
material respects 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.
(xiii) The Common Securities have been duly
authorized by the Trust and, when issued and delivered by the Trust to
the Company against payment therefor as described in the Registration
Statement and 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; the issuance
of the Common Securities is not subject to preemptive or other similar
rights; 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, mortgage, pledge, lien,
encumbrance, claim or equity.
(xiv) The Capital Securities have been duly
authorized by the Trust 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 in all material respects conform to the
statements relating thereto contained in the Prospectus; the
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issuance of the Capital Securities is not subject to preemptive or
other similar rights; and holders of Capital Securities will be
entitled to the same limitation of personal liability under Delaware
law as extended to stockholders of private corporations for profit.
(xv) The Indenture, the Trust Agreement and the
Guarantee Agreement are in substantially the respective forms filed as
exhibits to the Registration Statement.
(xvi) The Company's obligations under the Guarantee
are subordinated and junior in right of payment to all "Senior Debt"
(as defined in the Indenture) of the Company.
(xvii) The Junior Subordinated Debentures are
subordinate and junior in right of payment to all "Senior Debt" of the
Company and the $16.5 million in indebtedness incurred by the Company
in connection with its February 9, 2001, trust preferred offering is
not "Senior Debt".
(xviii) Each of the Regular Trustees of the Trust is
an employee of the Company and has been duly authorized by the Company
to execute and deliver the Trust Agreement.
(xix) The Trust and the Company and each of its
Subsidiaries holds, and is operating in compliance in all material
respects with, all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders of any
governmental or self-regulatory body required for the conduct of its
business and all such franchises, grants, authorizations, licenses,
permits, easements, consents, certifications and orders are valid and
in full force and effect, and the Trust and the Company and each of its
Subsidiaries is and has been in compliance in all material respects
with all applicable federal, state, local and foreign laws,
regulations, orders and decrees, except to the extent that the failure
to comply would not have a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects, assets,
results of operations or properties of the Trust and the Company and
its Subsidiaries taken as a whole. 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 its 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 its
Subsidiaries that would have a material adverse effect on the Trust,
the Company or any Subsidiary.
(xx) The Company and its Subsidiaries have good and
marketable title to all property (whether real or personal) described
in the Registration Statement and Prospectus as being owned by them, in
each case free and clear of all liens, claims, security interests or
other encumbrances or defects except such as are described in the
Registration Statement and the Prospectus or which do not interfere in
any material respect with the use of the property on the conduct of the
business of the Company and its Subsidiaries. The property held under
lease by the Company and its Subsidiaries is held by them under valid,
subsisting and enforceable leases with only such exceptions with
respect to any particular lease as do not interfere in any material
respect with the current or proposed conduct of the business of the
Company or its Subsidiaries; the Company and each of its Subsidiaries
owns or possesses all patents, patent applications, trademarks, service
marks, tradenames, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets and rights necessary
for the conduct of the business of the Company and its Subsidiaries as
currently carried on and as described in the Registration
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Statement and Prospectus; except as stated in the Registration
Statement and Prospectus, to the best of the Company's knowledge, no
name which the Company or any of its Subsidiaries uses and no other
aspect of the business of the Company or any of its Subsidiaries will
involve or give rise to any infringement of, or license or similar fees
for, any patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets or other similar rights
of others material to the business or prospects of the Company and
neither the Company nor any of its Subsidiaries has received any notice
alleging any such infringement or fee.
(xxi) Neither the Company nor any of its 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; none
of the Company, any of its Subsidiaries or the Trust is in breach of or
otherwise in default, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default in the
performance of any material obligation, agreement or condition
contained in any bond, debenture, note, indenture, loan agreement or
any other material contract, lease or other instrument to which it is
subject or by which any of them may be bound, or to which any of the
material property or assets of the Company, any of its Subsidiaries or
the Trust is subject.
(xxii) The Trust and the Company and its Subsidiaries
have timely filed all federal, state, local and foreign income and
franchise tax returns required to be filed and are not in default in
the payment of any taxes which were payable pursuant to said returns or
any assessments with respect thereto, other than any which the Trust,
the Company or any of its Subsidiaries is contesting in good faith. The
Company and its Subsidiaries have also filed all required applications,
reports, returns and other documents and information with all state and
federal savings bank authorities and agencies.
(xxiii) The Offerors have not distributed and will
not distribute any prospectus or other offering material in connection
with the offering and sale of the Capital Securities and the Common
Stock other than any Preliminary Prospectus or the Prospectus or other
materials permitted by the Act to be distributed by the Company.
(xxiv) The Trust, the Company and its Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxv) Other than as contemplated by this Agreement or
described 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.
(xxvi) Neither the Trust, the Company nor any of its
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.
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(xxvii) No report or application filed by the Trust,
the Company or any of its Subsidiaries with the FRB, Office of the
Comptroller of Currency (the "OCC") or the FDIC, 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 FRB, OCC, or the FDIC,
as the case may be.
(xxviii) The proceeds from the sale of the Capital
Securities will constitute "tier 1" capital (as defined in 12 C.F.R.
Part 225).
(xxix) Neither of the Offerors nor any of their
affiliates is presently doing business with the government of Cuba or
with any person or affiliate located in Cuba.
(xxx) Neither the Company nor any Subsidiary has
received or is subject to any directive, order or supervisory agreement
or arrangement from the FRB, the FDIC, the OCC 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.
(xxxi) Deloitte & Touche LLP, which has certified the
financial statements filed with the Commission as part of the
Registration Statement, are independent public accountants with respect
to the Company as required by the Act and the rules and regulations
thereunder.
(xxxii) The Capital Securities have been approved for
listing on the American Stock Exchange upon official notice of issuance
under the symbol "_________" and, on the date the Registration
Statement became or becomes effective, the Company's Registration
Statement on Form 8-A or other applicable form under Exchange Act,
became or will become effective.
(xxxiii) The Purchase and Assumption Agreement dated
as of January 30, 2001, between the Company's bank subsidiary and Firstar Bank,
National Association (the "Branch Acquisition Agreement") constitutes a valid,
legal and binding obligation enforceable against the Company and the Company's
bank subsidiary 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. All conditions to closing contained in the Branch
Acquisition Agreement have been fulfilled except those that are to be fulfilled
at such closing. The Branch Acquisition Agreement conforms in all material
respects to the description thereof contained in the Registration Statement,
Preliminary Prospectus and Prospectus.
(xxxiv) The Company carries, or is covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of its business and the value of its properties and as is customary for
companies engaged in similar businesses in similar industries.
(xxxv) None of the Directed Securities (as defined
below) distributed in connection with the Directed Securities Program (as
defined below) will be offered or sold oustide of the United States.
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(b) Any certificate signed by any officer of the Company or a
trustee of the Trust and delivered to either Underwriter or to counsel for
either Underwriter shall be deemed a representation and warranty by the Company
to you as to the matters covered thereby.
3. Purchase, Sale and Delivery of Capital Securities; Advisory Fee.
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Trust agrees to issue and sell ____________________ Capital Securities to you,
and you agree to purchase the Capital Securities from the Trust at a purchase
price per Capital Security of $25.00 per share. As compensation to the
Underwriters for their commitments hereunder and in view of the fact that the
proceeds of the sale of the Capital Securities (together with the entire
proceeds from the sale by the Trust to the Company of the Common Securities)
will be used to purchase the Junior Subordinated Debentures, the Company hereby
agrees to pay at the Closing Date to you, a commission per Capital Security
equal in amount to ________ percent (______%) of the gross proceeds from the
sale of the Capital Securities to be delivered by the Trust hereunder at the
Closing Date.
It is understood that _____ of the Capital Securities
("Directed Securities") will initially be reserved by the Underwriters for offer
and sale to employees and persons having business relationships with the Company
("Directed Securities Participants") upon the terms and conditions set forth in
the Prospectus and in accordance with the rules and regulations of the National
Association of Securities Dealers ("Directed Securities Program"). Under no
circumstance will the Representatives or any Underwriter be liable to the
Offerors or to any Directed Securities Participant for any action taken or
omitted to be taken in good faith in connection with such Directed Securities
Program. To the extent that any Directed Securities are not affirmatively
reconfirmed for purchase by any Directed Securities Participant on or
immediately after the date of this Agreement, such Directed Securities may be
offered to the public as part of the public offering contemplated hereby. The
Offerors agree to pay all fees and disbursements incurred by the Underwriters in
connection with the Directed Securities Program, including counsel fees and any
stamp duties or other taxes incurred by the Underwriters in connection with the
Directed Securities Program.
The Capital Securities will be delivered by the Company to you
against payment of the purchase price therefor by certified or official bank
check or same day funds payable to the Company at the offices of U.S. Bancorp
Xxxxx Xxxxxxx Inc., U.S. Bancorp Center, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxx, or such other location as may be mutually acceptable, at 9:00 a.m.
Central time on the third (or if the Capital Securities are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, on the fourth) full business day following the date hereof, or at such
other time and date as you and the Company determine pursuant to Rule 15c6-1(a)
under the Exchange Act, such time and date of delivery being herein referred to
as the "Closing Date." Delivery of the Capital Securities may be made by credit
through full fast transfer to the accounts at The Depository Trust Company
designated by you. Certificates representing the Capital Securities, in
definitive form and in such denominations and registered in such names as you
may request upon at least two business days' prior notice to the Company shall
be prepared and will be made available for checking and packaging, not later
than 10:30 a.m., Central time, on the business day next preceding the Closing
Date at the offices of U.S. Bancorp Xxxxx Xxxxxxx Inc., U.S. Bancorp Center, 000
Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually
acceptable.
It is understood that each Underwriter may (but shall not be
obligated to) make payment to the Company on behalf of the other Underwriter for
the Securities to be purchased by such
10
Underwriter. Any such payment shall not relive such other Underwriter of any of
its obligations hereunder. Nothing herein contained shall constitute either of
the Underwriters an unincorporated association or partner with either or both
Offerors.
4. Covenants.
(a) The Offerors jointly and severally covenant and agree with
the Underwriters as follows:
(i) If the Registration Statement has not already
been declared effective by the Commission, the Offerors will use its
best efforts to cause the Registration Statement and any post-effective
amendments thereto to become effective as promptly as possible; the
Offerors will notify you promptly of the time when the Registration
Statement or any post-effective amendment to the Registration Statement
has become effective or any supplement to the Prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations)
has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or additional
information; if the Offerors have elected to rely on Rule 430A of the
Rules and Regulations, the Offerors will prepare and file a Prospectus
(or term sheet within the meaning of Rule 434 of the Rules and
Regulations) containing the information omitted therefrom pursuant to
Rule 430A of the Rules and Regulations with the Commission within the
time period required by, and otherwise in accordance with the
provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules
and Regulations; if the Offerors have elected to rely upon Rule 462(b)
of the Rules and Regulations to increase the size of the offering
registered under the Act, the Offerors will prepare and file a
registration statement with respect to such increase with the
Commission within the time period required by, and otherwise in
accordance with the provisions of, Rule 462(b); the Offerors will
prepare and file with the Commission, promptly upon your request, any
amendments or supplements to the Registration Statement or Prospectus
(including any term sheet within the meaning of Rule 434 of the Rules
and Regulations) that, in your opinion, may be necessary or advisable
in connection with your distribution of the Capital Securities; and the
Offerors will not file any amendment or supplement to the Registration
Statement or Prospectus (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations) to which you shall reasonably
object by notice to the Company after having been furnished a copy a
reasonable time prior to the filing.
(ii) The Offerors will advise the Underwriters,
promptly after they shall receive notice or obtain knowledge thereof,
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of the suspension of the
qualification of the Capital Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for
any such purpose; and the Offerors will promptly use their best efforts
to prevent the issuance of any stop order or to obtain its withdrawal
if such a stop order should be issued.
(iii) Within the time during which a prospectus
(including any term sheet within the meaning of Rule 434 of the Rules
and Regulations) relating to the Capital Securities is required to be
delivered under the Act, each of the Offerors will comply as far as it
is able with all requirements imposed upon it by the Act, as now and
hereafter amended, and by the Rules and Regulations, as from time to
time in force, so far as necessary to permit the continuance of sales
of or dealings in the Capital Securities as contemplated by the
provisions hereof and the Prospectus. If during such period any event
occurs as a result of which the Prospectus would include an untrue
statement of a material fact or omit to state a material fact necessary
to make the
11
statements therein, in the light of the circumstances then existing,
not misleading, or if during such period it is necessary to amend the
Registration Statement or supplement the Prospectus to comply with the
Act, the Offerors will promptly notify the Underwriters and will amend
the Registration Statement or supplement the Prospectus (at the expense
of the Offerors) so as to correct such statement or omission or effect
such compliance.
(iv) The Offerors will use their best efforts to
qualify the Capital Securities and the Junior Subordinated Debentures
for sale under the securities laws of such jurisdictions as the
Underwriters may reasonably designate and to continue such
qualifications in effect so long as required for the distribution of
the Capital Securities, except that the Offerors shall not be required
in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process in any state.
(v) The Offerors will furnish to the Underwriters and
counsel for the Underwriters copies of the Registration Statement
(three of which will be signed and will include all consents and
exhibits filed therewith), each of the Preliminary Prospectuses, the
Prospectus, and all amendments and supplements (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) to
such documents, in each case as soon as available and in such
quantities as each Underwriter may from time to time reasonably
request.
(vi) During a period of five years commencing with
the date hereof, the Offerors will furnish to the Underwriters copies
of all periodic and special reports furnished to its security holders
and holders of the Capital Securities and all information, documents
and reports filed with the Commission.
(vii) The Offerors will make generally available to
its security holders and holders of the Capital Securities as soon as
practicable, but in any event not later than 15 months after the end of
such Offeror's current fiscal quarter, an earnings statement (which
need not be audited) covering a 12-month period beginning after the
effective date of the Registration Statement that shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(viii) The Offerors, whether or not the transactions
contemplated hereunder are consummated or this Agreement is prevented
from becoming effective under the provisions of Section 8(a) hereof or
is terminated, will pay or cause to be paid (A) all expenses (including
transfer taxes allocated to the respective transferees) incident to the
performance of the obligations of each Offeror under this agreement,
(B) all expenses and fees (including, without limitation, fees and
expenses of each Offeror's accountants and counsel but, except as
otherwise provided below, not including fees of the Underwriters'
counsel) in connection with the preparation, printing, filing,
delivery, and shipping of the Registration Statement (including the
financial statements therein and all amendments, schedules, and
exhibits thereto), the Capital Securities, each Preliminary Prospectus,
the Prospectus, and any amendment thereof or supplement thereto, and
the printing, delivery, and shipping of this Agreement and other
underwriting documents, including Blue Sky Memoranda, (C) all filing
fees and fees and disbursements of the Underwriters' counsel incurred
in connection with the qualification of the Capital Securities for
offering and sale by you or by dealers under the securities or blue sky
laws of the states and other jurisdictions which you shall designate,
(D) the fees and expenses of any transfer agent or registrar, (E) the
filing fees incident to any required review by the National Association
of Securities Dealers, Inc. ("NASD") of the terms of the sale of the
Capital Securities, (F) listing fees, if any, (G) the fees and expenses
of the Delaware Trustee, including the fees and
12
disbursements of counsel for the Delaware Trustee in connection with
the Indenture and Junior Subordinated Debentures, (H) the fees and
expenses of the Property Trustee, including the fees and disbursements
of counsel for the Property Trustee in connection with the Trust
Agreement and the Certificate of Trust, and (I) all other costs and
expenses incident to the performance of the Offerors' obligations
hereunder that are not otherwise specifically provided for herein. If
the sale of the Capital Securities provided for herein is not
consummated by reason of action by either Offeror pursuant to Section
8(a) hereof which prevents this Agreement from becoming effective, or
by reason of any failure, refusal or inability on the part of either
Offeror to perform any agreement on its part to be performed, or
because any other condition of your obligations hereunder required to
be fulfilled by either Offeror is not fulfilled, the Offerors will
reimburse you for all out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in connection
with their investigation, preparing to market and marketing the Capital
Securities or in contemplation of performing their obligations
hereunder. Neither Offeror shall in any event be liable to you for loss
of anticipated profits from the transactions covered by this Agreement.
(ix) The Offerors will apply the net proceeds from
the sale of the Capital Securities to be sold by the Trust hereunder
for the purposes set forth in the Prospectus and will file such reports
with the Commission with respect to the sale of the Capital Securities
and the application of the proceeds therefrom as may be required in
accordance with Rule 463 of the Rules and Regulations.
(x) The Offerors will use their best efforts to
maintain the designation of the Capital Securities on the American
Stock Exchange.
(xi) The Offerors have not taken and will not take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, or which has constituted,
the stabilization or manipulation of the price of any security of
either Offeror to facilitate the sale or resale of the Capital
Securities.
(xi) Neither Offeror will incur 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.
(xii) The Offerors will inform the Florida Department
of Banking and Finance at any time prior to the consummation of the
distribution of the Capital Securities by you if it commences engaging
in business with the government of Cuba or with any person or affiliate
located in Cuba. Such information will be provided within 90 days after
the commencement thereof or after a change occurs with respect to
previously reported information.
(xiii) In connection with the Directed Securities
Program to ensure that the Directed Securities will be restricted to
the extent required by the National Association of Securities Dealers
or the rules of such association from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date
of the effectiveness of the Registration Statement, the Offerors will
direct the transfer agent to place stop-transfer restrictions upon such
securities for such period of time. Should the Offerors release, or
seek to release, from such restrictions any of the Directed Securities,
the Offerors agree to reimburse the Underwriters for any reasonable
expense (including, without limitation, legal expenses) they incur with
such release.
13
(xiv) The Offerors will file with the Commission such
periodic and special reports as required by the Rules and Regulations.
5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, as of the date hereof and at
the Closing Date (as if made at the Closing Date), of and compliance with all
representations, warranties and agreements of the Offerors contained herein, to
the performance by each Offeror of its obligations hereunder and to the
following additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 p.m., Central time, on the date of this Agreement, or such later
time and date as you shall approve and all filings required by Rules 424, 430A
and 434 of the Rules and Regulations shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereof shall have been issued and no proceedings for the issuance of such an
order shall have been initiated or threatened; and any request of the Commission
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) The Underwriters shall not have advised the Company or the
Trust that the Registration Statement or the Prospectus, or any amendment
thereof or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), contains an untrue statement of fact
which, in your opinion, is material, or omits to state a fact which, in your
opinion, is material and is required to be stated therein or necessary to make
the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Trust, the Company nor any of its
Subsidiaries shall have incurred any material liabilities or obligations, direct
or contingent, or entered into any material transactions, or declared or paid
any dividends or made any distribution of any kind with respect to its capital
stock; and there shall not have been any change in the capital stock (other than
a change in the number of outstanding shares of Common Stock due to the issuance
of shares upon the exercise of outstanding options or warrants), or any material
change in the short-term or long-term debt of the Company, or any issuance of
options, warrants, convertible securities or other rights to purchase the
capital stock of the Company or any of its Subsidiaries, or any material adverse
change or any development involving a prospective material adverse change
(whether or not arising in the ordinary course of business), in the general
affairs, condition (financial or otherwise), business, key personnel, property,
prospects, net worth or results of operations of the Trust or the Company and
its Subsidiaries, taken as a whole, that, in your judgment, makes it impractical
or inadvisable to offer or deliver the Capital Securities on the terms and in
the manner contemplated in the Prospectus.
(d) On the Closing Date, there shall have been furnished to
the Underwriters the opinion of Winthrop & Weinstine, P.A., counsel for the
Offerors, dated the Closing Date and addressed to the Underwriters, to the
effect that:
(i) Each of the Company and its Subsidiaries has been
duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. The
Company is duly registered as a bank holding company under the BHC Act.
The deposit accounts of each of the Company's Subsidiaries that is a
bank are insured by the FDIC, and, to the knowledge of such counsel, no
proceedings for the termination or revocation of such membership or
insurance are pending or threatened. Each of the Company and its
Subsidiaries has full corporate power and authority to own its
properties and conduct its business as currently being carried on and
as described in the Registration Statement and Prospectus, and is
14
duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which its ownership or lease of real
property or the conduct of its business makes such qualification
necessary and in which the failure to so qualify would have a material
adverse effect upon the business, condition (financial or otherwise) or
properties of the Company and its Subsidiaries, taken as a whole.
(ii) 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, and the holders thereof
are not subject to personal liability by reason of being such holders.
Except as otherwise stated in the Registration Statement and
Prospectus, there are no preemptive rights or options, warrants,
agreements, contracts or other rights in existence to purchase or
acquire from the Company any shares of the capital stock of the Company
pursuant to the Company's articles, bylaws or any agreement or other
instrument known to such counsel to which the Company is a party or by
which the Company is bound. To the best of such counsel's knowledge,
neither the filing of the Registration Statement nor the offering or
sale of the Junior Subordinated Debentures or Capital Securities as
contemplated by this Agreement gives rise to any rights for or relating
to the registration of any shares of Common Stock or other securities
of the Company.
(iii) All of the issued and outstanding shares of
capital stock of each of the Company's Subsidiaries have been duly and
validly authorized and issued and are fully paid and nonassessable,
and, to the best of such counsel's knowledge, except as otherwise
described in the Registration Statement and Prospectus and except for
directors' qualifying shares, the Company owns of record and
beneficially, free and clear of any security interests, claims, liens,
proxies, equities or other encumbrances in the case of the Subsidiaries
set forth on Exhibit A attached hereto, that percentage of shares of
the issued and outstanding shares of such Subsidiaries' stock as is set
forth on such Exhibit A. To the best of such counsel's knowledge,
except as described in the Registration Statement and Prospectus, there
are no options, warrants, agreements, contracts or other rights in
existence to purchase or acquire from the Company or any of its
Subsidiaries any shares of the capital stock of any Subsidiary of the
Company.
(iv) 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.
(v) The Trust Agreement has been duly qualified under
the Trust Indenture Act.
(vi) 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 Delaware
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.
(vii) The obligations of the Company under the Junior
Subordinated Debentures are subordinate and junior in right of payment
to all "Senior Debt" (as defined in
15
the Indenture) of the Company and the $16.5 million in indebtedness
incurred by the Company in connection with its February 9, 2001, trust
preferred offering is not "Senior Debt".
(viii) Neither the Company nor the Trust is an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the 1940 Act.
(ix) Under current law, the Trust will be classified
for United States federal income tax purposes as a grantor trust and
not as an association taxable as a corporation; accordingly, for United
States federal income tax purposes each beneficial owner of Capital
Securities will be treated as owning an undivided beneficial interest
in the Junior Subordinated Debentures, and stated interest on the
Junior Subordinated Debentures generally will be included in income by
a holder of Capital Securities at the time such interest income is paid
or accrued in accordance with such holder's regular method of tax
accounting.
(x) 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 1.163-7.
(xi) To the best of such counsel's knowledge and
information after due inquiry, the Trust is not required to be
authorized to do business in any other jurisdiction and the Trust is
not a party to or otherwise bound by any agreement other than those
described in the Prospectus.
(xii) The Trust Agreement has been duly authorized,
executed and delivered by the Company and the Regular Trustees.
(xiii) The Registration Statement has become
effective under the Act and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of such counsel, threatened by the
Commission.
(xiv) The statements set forth in the Prospectus
under the caption "Federal Income Tax Consequences" constitute a fair
and accurate summary of the matters addressed therein, based upon
current law and the assumptions stated or referred to therein. The
statements in the Prospectus under the caption "Description of the
Capital Securities", "Description of the Junior Subordinated
Debentures", Description of the Capital Securities Guarantee", and
"Effect of Obligations Under the Junior Subordinated Debentures and the
Capital Securities Guarantee" insofar as such statements constitute
matters of law applicable to the Offerors or summaries of documents,
fairly present the information required to be included therein in all
material respects. The descriptions in the Registration Statement and
Prospectus of statutes, regulations, legal and governmental proceedings
or rulings, contracts and other documents are accurate in all material
respects and fairly present the information required to be shown; and
such counsel does not know of any statutes, regulations or legal or
governmental proceedings or of any contracts or other documents
required to be described in the Prospectus or included as exhibits to
the Registration Statement that are not described or included as
required.
(xv) The reports of the Company incorporated by
reference in the Registration Statement and the Prospectus or any
further amendment or supplement thereto
16
made by the Company (other than the financial statements, other
financial data and related schedules therein, as to which such counsel
need express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.
(xvi) The Company and its respective bank
subsidiaries have 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 Branch
Acquisition Agreement to which it is a party and to issue the Junior
Subordinated Debentures and Capital Securities, as the case may be, and
to effect the transactions contemplated by this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Branch
Acquisition Agreement to which it is a party, and each of this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement
and the Branch Acquisition Agreement is duly authorized, executed and
delivered by the Company and the Trust, as applicable, and constitutes
a valid, legal and binding obligation of the Company and the Trust, as
applicable, enforceable in accordance with its terms (except as rights
to indemnity hereunder may be limited by federal or state securities
laws and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity). The
execution, delivery and performance of this Agreement, the Indenture,
the Trust Agreement, the Guarantee Agreement, the Capital Securities,
the Common Securities, the Junior Subordinated Debentures, the
Guarantee and the Branch Acquisition 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, any
agreement or instrument known to such counsel to which the Company, its
bank subsidiaries, or the Trust is a party or by which either is bound
or to which any of their property is subject, the Company's articles or
bylaws, the Company's bank subsidiaries' charter or bylaws, or the
Trust's Certificate or any order or decree known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company and its respective bank subsidiaries or the Trust or any of its
respective properties; and 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, the
Capital Securities, the Junior Subordinated Debentures, the Guarantee
or the Branch Acquisition Agreement, or for the consummation of the
transactions contemplated hereby or thereby, including the issuance or
sale of the Junior Subordinated Debentures by the Company and the
Common Securities and Capital Securities by the Trust, except (a) such
as may be required under the Act, which has been obtained, or under
state securities or blue sky laws, and (b) the qualification of the
Trust Agreement, the Guarantee Agreement and the Indenture under the
Trust Indenture Act and the regulations thereunder.
(xvii) The Registration Statement and the Prospectus,
and any amendment thereof or supplement thereto (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations),
comply as to form in all material respects with the requirements of the
Act and the Rules and Regulations; and on the basis of conferences with
officers of the Company, examination of documents referred to in the
Registration Statement and Prospectus and such other procedures as such
counsel deemed appropriate, nothing has come to the attention of such
counsel that causes such counsel to believe that the Registration
Statement or any amendment thereof, at the time such Registration
Statement became effective and as of the Closing Date (including any
Registration Statement filed under Rule 462(b) of the Rules and
Regulations), contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (as of
17
their respective dates and as of the Closing Date), as amended or
supplemented, includes any untrue statement of material fact or omits
to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
it being understood that such counsel need express no opinion as to the
financial statements or other financial data included in any of the
documents mentioned in this clause.
In rendering such opinion such counsel may rely (i) as to
matters of law other than the Delaware General Corporate Law, Minnesota 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 that they believe they and you are justified in relying thereon and (ii) as
to matters of fact, to the extent such counsel deems reasonable upon
certificates of officers of the Company and its Subsidiaries and of public
officials provided that the extent of such reliance is specified in such
opinion.
(e) The favorable opinion, dated as of Closing Date, of
Xxxxxxxx, Xxxxxx & Finger, counsel to Wilmington Trust Company, as Property
Trustee under the Trust Agreement, Delaware Trustee under the Indenture, and
Guarantee Trustee under the Guarantee Agreement, in form and substance
satisfactory to counsel for 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 have 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 the Wilmington Trust Company of
the Trust Agreement, the Indenture and the Guarantee Agreement.
(f) The favorable opinion, dated as of Closing Date, of
Xxxxxxxx, Xxxxxx & Finger, as special Delaware counsel for the Offerors, in form
and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act,
and all filings required as of the date hereof under the Delaware Act
with respect to the creation and valid existence of the Trust as a
business trust have been made.
18
(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 and each of the Property Trustee and
the Regular Trustees, and is enforceable against the Company and each
of the Property Trustee and the Regular Trustees, in accordance with
its terms.
(iv) Under the Trust Agreement and the Delaware Act,
the Trust has the trust power and authority (i) to execute and deliver,
and to perform its obligations under, this Agreement, and (ii) to
issue, and to perform its obligations under, the Capital Securities and
the Common Securities.
(v) Under the Trust Agreement and the Delaware Act,
the execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its obligations under this Agreement, have
been duly authorized by all necessary trust action on the part of the
Trust.
(vi) Under the Delaware Act, the certificate attached
to the Trust Agreement as Annex I is an appropriate form of certificate
to evidence ownership of the Capital Securities. The Capital Securities
and the Common Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the
qualifications hereinafter expressed in this paragraph (vi), fully paid
and non-assessable undivided beneficial interests in the assets of the
Trust. The respective holders of the Capital Securities and the Common
Securities, as beneficial owners of the Trust, will be entitled to the
same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation
Law of the State of Delaware. We note that the respective holders of
the Capital Securities and the Common Securities may be obligated,
pursuant to the Trust Agreement, to make certain payments under the
Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act,
the issuance of the Capital Securities and the Common Securities is not
subject to preemptive or similar rights.
(viii) The issuance and sale by the Trust of the
Capital Securities and the Common Securities, the purchase by the Trust
of the Junior Subordinated Debentures, the execution, delivery and
performance by the Trust of this Agreement and the Guarantee Agreement,
the consummation by the Trust of the transactions contemplated by this
Agreement and compliance by the Trust with its obligations under this
Agreement do not violate (a) any of the provisions of the Certificate
of Trust or the Trust Agreement, or (b) any applicable Delaware law or
Delaware administrative regulation.
(ix) No authorization, approval, consent or order of
any Delaware court or any Delaware governmental authority or Delaware
agency is required to be obtained by the Trust solely in connection
with the issuance and sale by the Trust of the Common Securities or the
Capital Securities or the performance by the Trust of its obligations
under the Declaration or this Agreement.
(x) The Capital Security holders (other than those
Capital security holders who reside or are domiciled in the State of
Delaware) will have no liability for income taxes
19
imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable for any
income tax imposed by the State of Delaware or any political
subdivisions or taxing authority thereof.
(g) On the Closing Date, there shall have been furnished such
opinion or opinions from Faegre & Xxxxxx LLP, counsel for the Underwriters,
dated the Closing Date and addressed to the Underwriters, with respect to the
formation of the Company, the validity of the Capital Securities, the Indenture,
the Guarantee Agreement, this Agreement, the Registration Statement, the
Prospectus and other related matters as the Underwriters reasonably may request,
and such counsel shall have received such papers and information as they request
to enable them to pass upon such matters.
(h) On the Closing Date you shall have received a letter from
Deloitte & Touche LLP, dated the Closing Date and addressed to the Underwriters,
confirming that they are independent public accountants within the meaning of
the Act and are in compliance with the applicable requirements relating to the
qualifications of accountants under Rule 2-01 of Regulation S-X of the
Commission, that the Trust is and will be treated as a consolidated Subsidiary
of the Company pursuant to generally accepted accounting principles, and
stating, as of the date of such letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more than
five days prior to the date of such letter), the conclusions and findings of
each said firm with respect to the financial information and other matters
covered by its letter delivered to the Underwriters concurrently with the
execution of this Agreement, and the effect of the letter so to be delivered on
the Closing Date shall be to confirm the conclusions and findings set forth in
such prior letter.
(i) On the Closing Date, there shall have been furnished to
you, a certificate, dated the Closing Date and addressed to you, signed by the
chief executive officer and by the chief financial officer of the Company, to
the effect that:
(i) The representations and warranties of the Company
in this Agreement are true and correct, in all material respects, as if
made at and as of the Closing Date, and each of the Offerors have
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order or other order suspending the
effectiveness of the Registration Statement or any amendment thereof or
the qualification of the Capital Securities for offering or sale has
been issued, and no proceeding for that purpose has been instituted or,
to the best of their knowledge, is contemplated by the Commission or
any state or regulatory body; and
(iii) The signers of said certificate have carefully
examined the Registration Statement and the Prospectus, and any
amendments thereof or supplements thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), and (A)
such documents contain all statements and information required to be
included therein, the Registration Statement, or any amendment thereof,
does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus, as
amended or supplemented, does not include any untrue statement of
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, (B) since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amended or supplemented prospectus which has not been so set forth, (C)
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus,
20
neither the Trust, the Company nor any of its Subsidiaries has incurred
any material liabilities or obligations, direct or contingent, or
entered into any material transactions, not in the ordinary course of
business, or declared or paid any dividends or made any distribution of
any kind with respect to its capital stock (other than dividends paid
in the ordinary course with respect to shares of the Company's Common
Stock or any of its Subsidiaries' common stock), and except as
disclosed in the Prospectus, there has not been any change in the
capital stock, or any material change in the short-term or long-term
debt, or any issuance of options, warrants, convertible securities or
other rights to purchase the capital stock, of the Company, or any of
its Subsidiaries, or any material adverse change or any development
involving a prospective material adverse change (whether or not arising
in the ordinary course of business), in the general affairs, condition
(financial or otherwise), business, key personnel, property, prospects,
net worth or results of operations of the Trust or the Company and its
Subsidiaries, taken as a whole, and (D) except as stated in the
Registration Statement and the Prospectus, there is not pending, or, to
the knowledge of the Company or the Trust, threatened or contemplated,
any action, suit or proceeding to which the Trust, the Company or any
of its Subsidiaries is a party before or by any court or governmental
agency, authority or body, or any arbitrator, which might result in any
material adverse change in the condition (financial or otherwise),
business, prospects or results of operations of the Company and its
Subsidiaries, taken as a whole.
(j) On the Closing Date, there shall have been furnished to
the Underwriters, a certificate, dated the Closing Date and addressed to the
Underwriters, signed by the Regular Trustees, to the effect that:
(i) The representations and warranties of the Trust
in this Agreement are true and correct, in all material respects, as if
made at and as of the Closing Date, and the Trust has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) No stop order or other order suspending the
effectiveness of the Registration Statement or any amendment thereof or
the qualification of the Capital Securities for offering or sale has
been issued, and no proceeding for that purpose has been instituted or,
to the best of their knowledge, is contemplated by the Commission or
any state or regulatory body; and
(iii) The signers of said certificate have carefully
examined the Registration Statement and the Prospectus, and any
amendments thereof or supplements thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), and (a)
such documents contain all statements and information required to be
included therein, the Registration Statement, or any amendment thereof,
does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus, as
amended or supplemented, does not include any untrue statement of
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, (B) since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amended or supplemented prospectus which has not been so set forth, (C)
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, the Trust has not
incurred any material liabilities or obligations, direct or contingent,
or entered into any material transactions, not in the ordinary course
of business, or declared or paid any dividends or made any distribution
of any kind with respect to its capital securities, and except as
disclosed in the Prospectus, there has not been any change in the
capital securities, or any material change in the short-term or
long-term debt, or any issuance of options, warrants, convertible
21
securities or other rights to purchase the capital securities, of the
Trust or any material adverse change or any development involving a
prospective material adverse change (whether or not arising in the
ordinary course of business), in the general affairs, condition
(financial or otherwise), business, key personnel, property, prospects,
net worth or results of operations of the Trust, and (D) except as
stated in the Registration Statement and the Prospectus, there is not
pending, or, to the knowledge of the Trust, threatened or contemplated,
any action, suit or proceeding to which the Trust is a party before or
by any court or governmental agency, authority or body, or any
arbitrator, which might result in any material adverse change in the
condition (financial or otherwise), business, prospects or results of
operations of the Trust.
(k) The Offerors shall have furnished to you and to your
counsel such additional documents, certificates and evidence as you or they may
have reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you and your counsel.
6. Indemnification and Contribution.
(a) The Offerors agree to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which you may become subject, under the Act or otherwise (including
in settlement of any litigation if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rules 430A and
434(d) of the Rules and Regulations, if applicable, any Preliminary Prospectus,
the Prospectus, or any amendment or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), or in any
materials or information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the Capital
Securities ("Marketing Materials"), including any roadshow or investor
presentations made to investors by the Offerors (whether in person or
electronically) or arise out of or are based upon 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, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that the Offerors shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action 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, the Prospectus, or any such amendment or supplement,
or in any Marketing Materials, in reliance upon and in conformity with written
information furnished to the Offerors by the Underwriters specifically for use
in the preparation thereof.
In addition to its other obligations under this Section 6(a),
each of the Company and the Trust agree that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission, described in this Section 6(a), it will reimburse you on a monthly
basis for all reasonable legal fees or other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the Offerors' obligation to reimburse you
for such expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. To the extent that any
such interim reimbursement payment is so held to have been improper, you shall
promptly return it to the party or parties that made such payment, together with
22
interest, compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing) announced
from time to time by U.S. Bank, National Association (the "Prime Rate"). Any
such interim reimbursement payments which are not made to you within 30 days of
a request for reimbursement shall bear interest at the Prime Rate from the date
of such request. This indemnity agreement shall be in addition to any
liabilities which the Offerors may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company and the Trust against any losses, claims, damages or liabilities to
which the Company and the Trust may become subject, under the Act or otherwise
(including in settlement of any litigation, if such settlement is effected with
your written consent), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), or arise out of or are based upon 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
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was 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 Company by you for use in the preparation thereof,
and will reimburse the Company and the Trust for any legal or other expenses
reasonably incurred by the Company and the Trust in connection with
investigating or defending against any such loss, claim, damage, liability or
action.
(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) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party except to the extent such indemnifying
party has been materially prejudiced by such failure. In case any such action
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 in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that if, in the sole judgment of the Underwriters, it is advisable for the
underwriters as a group to be represented by separate counsel, the Underwriters
shall have the right to employ a single counsel (in addition to any required
local counsel) to represent all Underwriters who may be subject to a liability
arising from any claim in respect of which indemnity may be sought by the
Underwriters under this Section 6, in which event the reasonable fees and
expenses of such separate counsel shall be borne by the indemnifying party or
parties and remitted to the Underwriters for payment to such counsel as such
fees and expenses are incurred (in accordance with the provisions of the second
paragraph in subsection (a) above). An indemnifying party shall not be obligated
under any settlement agreement relating to any action under this Section 6 to
which it has not agreed in writing.
23
(e) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company or the Trust on the one hand and the Underwriters on the other
from the offering of the Capital Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Trust on the one hand
and the Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Trust 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 Company bear to the total
underwriting commissions received by the Underwriters, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Trust or the
Underwriters and the parties' relevant intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Trust and you agree that it would not be just and equitable if
contributions pursuant to this subsection (e) were to be determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the first sentence of this
subsection (e). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Capital Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Offerors under this Section 6 shall
be in addition to any liability which the Company and the Trust may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 6 shall be in addition to any
liability that the respective Underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company (including
any person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company or the Trust within the meaning of the Act.
(g) The Underwriters severally confirm and the Company and the
Trust acknowledge that the statements with respect to the public offering of the
Capital Securities by the Underwriters set forth on the cover page of, and the
concession and reallowance figures appearing under the caption "Underwriting" in
the Prospectus are correct and constitute the only information concerning such
Underwriters furnished in writing to the Company or the Trust by or on behalf of
the Underwriters specifically for inclusion in the Registration Statement and
the Prospectus.
24
(h) In connection with the offer and sale of the Directed
Securities, the Company agrees, promptly upon a request in writing, to indemnify
and hold harmless the Underwriters from and against any and all losses,
liabilities, claims, damages and expenses incurred by them as a result of the
failure of the Directed Securities Participants to pay for and accept delivery
of the Directed Securities which, by the end of the day following the date of
this Agreement, were subject to a properly confirmed agreement to purchase such
Directed Securities.
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Offerors herein or in
certificates delivered pursuant hereto, and the agreements of the Offerors and
you contained in Section 6 hereof shall remain operative and in full force and
effect regardless of any investigation made by you or on your behalf or any
controlling person thereof, or the Company or any of its officers, directors, or
controlling persons or the Trust or any if its trustees, or controlling persons
and shall survive delivery of, and payment for, the Capital Securities to and by
the Underwriters hereunder.
8. Effective Date of this Agreement and Termination.
(a) This Agreement shall become effective at 10:00 a.m.,
Central time, on the first full business day following the effective date of the
Registration Statement, or at such earlier time after the effective time of the
Registration Statement as the Underwriters in their discretion shall first
release the Capital Securities for sale to the public; provided, that if the
Registration Statement is effective at the time this Agreement is executed, this
Agreement shall become effective at such time as the Underwriters in their
discretion shall first release the Capital Securities for sale to the public.
For the purpose of this Section, the Capital Securities shall be deemed to have
been released for sale to the public upon release by you of the publication of a
newspaper advertisement relating thereto or upon release by the Underwriters of
telexes offering the Capital Securities for sale to securities dealers,
whichever shall first occur. By giving notice as hereinafter specified before
the time this Agreement becomes effective, the Underwriters, the Trust or the
Company may prevent this Agreement from becoming effective without liability of
any party to any other party, except that the provisions of Section 4(a)(viii)
and Section 6 hereof shall at all times be effective.
(b) The Underwriters shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time at or prior to
the Closing Date, if (i) either Offeror shall have failed, refused or been
unable, at or prior to the Closing Date, to perform any agreement on its part to
be performed hereunder, (ii) any other condition of your obligations hereunder
is not fulfilled, (iii) trading in securities on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market System shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or System, (iv) a banking moratorium shall have been declared by
federal or state banking authorities, or (v) there has occurred any material
adverse change in the financial markets in the United States or an outbreak of
major hostilities (or an escalation thereof) in which the United States is
involved, a declaration of war by Congress, any other substantial national or
international calamity or any other event or occurrence of a similar character
shall have occurred since the execution of this Agreement that, in your
judgment, makes it impractical or inadvisable to proceed with the completion of
the sale of and payment for the Capital Securities. Any such termination shall
be without liability of any party to any other party except that the provisions
of Section 4(a)(viii) and Section 6 hereof shall at all times be effective.
(c) If the Underwriters elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section,
the Offerors shall be notified promptly by the
25
Underwriters by telephone or telegram, confirmed by letter. If the Trust or the
Company elects to prevent this Agreement from becoming effective, the
Underwriters shall be notified by the Trust or the Company by telephone or
telegram, confirmed by letter.
9. Default by the Trust or the Company. If the Trust shall fail at the
Closing Date to sell and deliver the number of Capital Securities which it is
obligated to sell hereunder or the Company fails to deliver the number of Junior
Subordinated Debentures required to be delivered pursuant to the Trust
Agreement, then this Agreement shall terminate without any liability on the part
of any non-defaulting party. No action taken pursuant to this Section shall
relieve the Trust or the Company so defaulting from liability, if any, in
respect of such default.
10. Notices. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to you, shall be mailed,
telegraphed or delivered to U.S. Bancorp Xxxxx Xxxxxxx Inc., U.S. Bancorp
Center, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; if to the Company,
shall be mailed, telegraphed or delivered to it at 000 Xxxxxxxxx Xxxxxx, Xxxxx
0000, Xx. Xxxx, XX 00000, Attention: Xxxxxx X. Xxxx; if to the Trust, shall be
mailed, telegraphed or delivered to it at Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration. All notices given by telegram shall be promptly confirmed by
letter. Any party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new address for
such purpose.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns and the controlling persons, officers and
directors referred to in Section 6. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Capital Securities from
any of the Underwriters.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota without regard to the
conflicts of laws provisions thereof.
13. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original and all such counterparts
shall together constitute one and the same instrument.
[Signature Page Follows]
26
Please sign and return to the Company the enclosed duplicates
of this letter whereupon this letter will become a binding agreement between the
Offerors and you in accordance with its terms.
Very truly yours,
XXXXXX FINANCIAL CORPORATION
By
-------------------------------------
Its
---------------------------------
XXXXXX CAPITAL TRUST I
By
-------------------------------------
Its
---------------------------------
Confirmed as of the date first
above mentioned.
U.S. BANCORP XXXXX XXXXXXX INC.
By
-----------------------------------
Managing Director
XXXX XXXXXXXX INCORPORATED
By
-----------------------------------
Managing Director
27
SCHEDULE I
Number of
Underwriter Capital Securities
----------- ------------------
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Xxxx Xxxxxxxx Incorporated
Total..........................................
28
EXHIBIT A
XXXXXX FINANCIAL CORPORATION
SUBSIDIARIES
OWNERSHIP
SUBSIDIARY BANK: LOCATION PERCENTAGE
-------- ----------
Xxxxxx Bank, National Association Alexandria, MN 100.000%
Xxxxxx Bank, National Association Brainerd, MN 100.000%
Xxxxxx Bank, National Association Grand Forks, ND 100.000%
Xxxxxx Bank, National Association International Falls, MN 100.000%
Xxxxxx Bank, National Association Marshall, MN 100.000%
Xxxxxx Bank, National Association Menomonie, WI 100.000%
Xxxxxx Bank, National Association Minot, ND 100.000%
Xxxxxx Bank, National Association Moorhead, MN 100.000%
Xxxxxx Bank, National Association St. Cloud, MN 100.000%
Xxxxxx Bank, National Association South St. Xxxx, MN 100.000%
Xxxxxx Bank, National Association Wilmar, MN 100.000%
NONBANK SUBSIDIARIES:
Bremer Business Finance Corporation St. Xxxx, MN 100.000%
Xxxxxx Trust, National Association St. Xxxx, MN 100.000%
Xxxxxx Insurance Agencies, Inc. St. Xxxx, MN 100.000%
Bremer Life Insurance Company St. Xxxx, MN *[________%]
Bremer Capital I St. Xxxx, MN 100.000%
29
