CAPITAL SECURITIES
CFB CAPITAL II
_______ % CUMULATIVE CAPITAL SECURITIES
(LIQUIDATION PREFERENCE OF $25 PER CAPITAL SECURITY)
PURCHASE AGREEMENT
, 1997
XXXXX XXXXXXX INC.
XXXX XXXXXXXX INCORPORATED
c/o Xxxxx Xxxxxxx Inc.
Xxxxx Xxxxxxx Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Community First Bankshares, Inc., a Delaware corporation (the "Company"),
and its fiduciary subsidiary, CFB Capital II, 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 Xxxxx Xxxxxxx Inc. and Xxxx Xxxxxxxx Incorporated (the
"Underwriters") an aggregate of 1,600,000 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 Indenture Trustee, the
administrative trustees named therein (the "Administrative Trustees") and the
Company (the "Trust Agreement"). The Capital Securities will be guaranteed by
the Company with respect to distributions and payments upon liquidation,
redemption and otherwise (the "Guarantee") pursuant to a Guarantee Agreement
(the "Guarantee Agreement"), to be dated , 1997,
between the Company and Wilmington Trust Company, as trustee (the "Guarantee
Trustee"), and entitled to the benefits of certain backup undertakings described
in the Prospectus (as defined herein) with respect to the Company's agreement
pursuant to the Expense Agreement (as defined herein) to pay all expenses
relating to administration of the Trust.
The proceeds of the sale of the Capital Securities will be used to purchase
junior subordinated deferrable interest debentures (the "Junior Subordinated
Debentures") issued by the Company pursuant to an Indenture, to be dated
, 1997, between the Company and Wilmington Trust Company as
trustee (the "Indenture").
The Offerors 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-3 (File No. ) 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.
In connection with the offer and sale of the Capital Securities, the
Underwriters will comply with Rule 2810 under the NASD Conduct Rules.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(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
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omissions from the Preliminary Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by either
Underwriter for use in the preparation thereof.
(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.
(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 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 notes thereto, 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 (except
as otherwise stated in the Registration Statement and Prospectus) 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 caption
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"Summary Consolidated Financial Data," present fairly the information
required to be stated therein.
(v) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware
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 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 or any of its
subsidiaries' common stock); and there has not been any change in the
capital stock (other than a
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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, or any issuance
of options, warrants, convertible Capital 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 either of their
assets may be subject, 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, net worth or results of operations of the Trust or the Company
and its Subsidiaries, taken as a whole.
(ix) There are no contracts or documents of the Trust or the
Company or any of its Subsidiaries that are required to 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 filed.
(x) Each of this Agreement, the Indenture, the Trust Agreement,
the Guarantee and the Agreement as to Expenses and Liabilities (the "Expense
Agreement") has been duly authorized, executed and delivered by the Company
and/or the Trust, as the case may be, and constitutes a valid, legal and
binding obligation of the Company and/or the Trust, as the case may be,
enforceable in accordance with its terms, except as rights to indemnity
hereunder may be limited by federal or state securities laws and except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity. The execution, delivery and
performance of this Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement and the consummation of the
transactions herein or therein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any 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 charter or bylaws, the Trust's Trust Agreement or
its certificate of trust filed with the State of Delaware on January 15,
1997 (the "Certificate of Trust") or any order, rule, regulation or decree
of any court or governmental agency or body having jurisdiction over the
Company 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, the Guarantee and the Expense Agreement or for the consummation
of the transactions contemplated hereby or thereby, including the issuance
or sale of the Junior Subordinated Debentures by the Company and the
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, the Guarantee and the Expense Agreement, and to
authorize, issue and sell the Capital Securities 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, including the shares of Common Stock issued, are duly
authorized and are, or will be at the Closing Date, 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, including the
Common Stock 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 charter,
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 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, or on the Closing Date shall own, 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
(xiii) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to the Company
against payment therefor as described in the 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 Agreement and, when issued and delivered pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and fully paid and non-assessable undivided beneficial interests in
the Trust, will be entitled to the benefits of the Trust Agreement and will
in all material respects conform to the statements relating thereto
contained in the Prospectus; the issuance of the Capital Securities is not
subject to preemptive or other
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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, the Guarantee Agreement
and the Expense 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 and Subordinated
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 and Subordinated Debt" of the
Company.
(xviii) Each of the Administrative Trustees of the Trust is an
employee of the Company and has been duly authorized by the Company to
execute and deliver the Trust Agreement.
(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 Company and its subsidiaries taken as a
whole.
(xx) The Company and its Subsidiaries have good title to all
property (and good and marketable title to all real property) 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 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 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 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.
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(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 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 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 Company or any of its subsidiaries is
contesting in good faith.
(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 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, the Merger Agreement or the
consummation of the transactions contemplated hereby or thereby.
(xxvi) Neither the Trust, the Company or 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.
(xxvii) No report or application filed by the Company or any of
its Subsidiaries with the FRB, OCC, Department 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, Department 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 325).
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(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.
(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 1,600,000 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.
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 Xxxxx
Xxxxxxx Inc., Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, 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 Xxxxx Xxxxxxx Inc., Xxxxx
Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, 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 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 Company will use its best efforts
to cause the Registration Statement and any post-effective amendments
thereto to become effective as promptly as possible; the Company will notify
you promptly of the time when the Registration Statement or any
post-effective amendment to
-9-
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 Company has elected to
rely on Rule 430A of the Rules and Regulations, the Company 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 Company has elected to rely upon Rule 462(b) of
the Rules and Regulations to increase the size of the offering
registered under the Act, the Company 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, 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 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 Company) 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 copies
of the Registration Statement (three of which will be signed and will
include all exhibits), each of the Preliminary
-10-
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 Company will furnish to the Underwriters copies of all
periodic and special reports furnished to the stockholders of the Company
and all information, documents and reports filed with the Commission.
(vii) The Company 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 the
Company'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 Company, 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 Underwriter's 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 Capital 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 Indenture
Trustee, including the fees and disbursements of counsel for the Indenture
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 Company 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
-11-
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 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, and has not effected any
sales of Common Stock which are required to be disclosed in response to
Item 701 of Regulation S-K under the Act which have not been so disclosed
in the Registration Statement.
(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.
5. CONDITIONS OF UNDERWRITER'S 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),
-12-
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 Xxxxxxxxx & Xxxxxx, counsel for the Company,
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 has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and 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 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) The statements in the Prospectus under the caption
"Description of the Capital Securities", "Description of Junior
Subordinated Debentures", "Description of Guarantee", and "Relationship
among the Capital Securities, the Junior Subordinated Debentures and the
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.
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 charter, 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,
-13-
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 Indenture
Trustee in the manner provided for in the Indenture and delivered
against payment therefor, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of
equity.
(vii) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all "Senior and Subordinated Debt" (as defined
in the Indenture) of the Company.
(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) The statements set forth in the Prospectus under the
caption "Certain 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.
(x) 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.
(xi) 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.
(xii) 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.
-14-
(xiii) The Trust Agreement has been duly authorized, executed and
delivered by the Company and the Administrative Trustees.
(xiv) To the best of such counsel's knowledge and information after
due inquiry, the Trust is not in default in the performance or observance
of any material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or any other
instrument of which the Trust is a party or by which it may be bound, or to
which any of the property or assets of the Trust is subject.
(xv) 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.
(xvi) The descriptions in the Registration Statement and
Prospectus of statutes, and to the best of counsel's knowledge, 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 or
legal or governmental proceedings required to be described in the
Prospectuses that are not described as required, or of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus or included as exhibits to the Registration
Statement that are not described or included as required.
(xvii) The reports of the Company incorporated by reference in the
Registration Statement and the Prospectus or any further amendment or
supplement thereto 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.
(xviii) The Company has full corporate power and authority and the
Trust has full trust power and authority to enter into this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement 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 Expense Agreement to which it is
a party, and each of this Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement and the Expense 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
enforceable in accordance with its terms (except as rights to indemnity
hereunder may be limited by federal or state securities laws and except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity). The execution, delivery and
performance of this Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement, the Capital Securities, the Common Securities, the
Junior Subordinated Debentures and the Guarantee 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 or the Trust is a party or by which
either is bound or to which any of their property is subject, the Company's
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 or the Trust or any of its respective
properties, except for any breach, violation or default which would not
have a material
-15-
adverse effect on the Company; 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 Expense
Agreement, the Capital Securities, the Junior Subordinated Debentures, or
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 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.
(xix) To the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries is in violation of its respective charter or
bylaws.
(xx) 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 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.
(xxi) Such other matters as you may reasonably request.
In rendering such opinion such counsel may rely (i) as to matters of
law other than 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, Indenture 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.
-16-
(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.
(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
Administrative Trustees, and is enforceable against the Company and each of
the Property Trustee and the Administrative Trustees, in accordance with
its terms.
(iv) Under the Trust Agreement and the Delaware Act, the Trust has the
trust power and authority (i) to execute and deliver, and to perform its
obligations under, this Agreement, and (ii) to issue, and to perform its
obligations under, the Capital Securities and the Common Securities.
(v) Under the Trust Agreement and the Delaware Act, the execution and
delivery by the Trust of this Agreement, and the performance by the Trust
of its obligations under this Agreement, have been duly authorized by all
necessary trust action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached to the Trust
Agreement as Exhibit E is an appropriate form of certificate to evidence
ownership of the Capital Securities. The Capital Securities and the Common
Securities have been duly
-17-
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.
(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
Ernst & Young 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 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
-18-
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,
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 (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, 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 Administrative 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
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(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 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 Company 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 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
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Prospectus, the Prospectus, or any such aemndment or supplement, 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
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 Norwest Bank Minnesota, N.A. (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 Company 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. 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
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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 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.
(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 discounts and 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 not 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 Section (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company 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
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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.
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 or
the Nasdaq Stock Market 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, New York, North Dakota, South
Dakota or Colorado 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 Company shall be notified promptly by the 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 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
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taken pursuant to this Section shall relieve the Trust or the Company so
defaulting from liability, if any, in respect of such default.
10. INFORMATION FURNISHED BY UNDERWRITERS. The statements set forth
in the last paragraph of the cover page and under the caption "Underwriting" in
any Preliminary Prospectus and in the Prospectus constitute the written
information furnished by the Underwriters or on their behalf referred to in
Section 2 and Section 6 hereof.
11. 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 Xxxxx Xxxxxxx Inc., Xxxxx
Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; if to
the Company, shall be mailed, telegraphed or delivered to it at 000 Xxxx
Xxxxxx, Xxxxx, Xxxxx Xxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxxxxx 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 notice to the Trust shall also be copied to
the Company at the address previously stated, Attention: Xxxxxx X.
Xxxxxxxxx. 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.
12. 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.
13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Minnesota.
[Signature Page Follows]
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Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the Company
and you in accordance with its terms.
Very truly yours,
COMMUNITY FIRST BANKSHARES, INC.
By______________________________
Its___________________________
CFB CAPITAL II
By______________________________
Its___________________________
Confirmed as of the date first
above mentioned.
XXXXX XXXXXXX INC.
By____________________________
Managing Director
XXXX XXXXXXXX INCORPORATED
By____________________________
Managing Director
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SCHEDULE I
Number of
Underwriter Capital Securities
----------- ------------------
Xxxxx Xxxxxxx Inc.
Xxxx Xxxxxxxx Incorporated
Total............................................ 1,600,000
---------
---------
-26-
EXHIBIT A
COMMUNITY FIRST BANKSHARES, INC.
SUBSIDIARIES
OWNERSHIP
SUBSIDIARY BANK: LOCATION: PERCENTAGE
Community First National Bank Fergus Falls, MN 100.000%
Community First National Bank Fargo, ND 100.000%
Community First State Bank Xxxxxxxxxx, ND 100.000%
Community First State Bank Redfield, SD 100.000%
Community First State Bank Decorah, IA [99.880]%
Community First State Bank Alliance, NE [99.537]%
Community First State Bank Xxxxxxx, WI [99.493]%
Colorado Community First National Bank Ft. Xxxxxx, CO 100.000%
Colorado Community First State Bank Steamboat Springs, CO 100.000%
Colorado Community First National Bank Trinidad, CO 100.000%
Colorado Community First State Bank - CO Denver, CO 100.000%
NONBANK SUBSIDIARIES:
Community First Financial, Inc. Fargo, ND 100.000%
Community First Service Corporation Fargo, ND 100.000%
Community Insurance, Inc. Fargo, ND 100.000%
Community First Properties, Inc. Fargo, ND 100.000%
Mountain Parks Data Corporation 100.000%
OTHER AFFILIATES:
Vail Banks Inc. Vail, CO 24.690%
SUBSIDIARIES OF SUBSIDIARIES (100% OWNED):
Community First Insurance Agencies, Inc. Fargo, ND (Subsidiary of
Community First State
Bank [Vermillion,
SD])
CFIN, Inc. Las Vegas, NV (Subsidiary of
Community First State
Bank [Xxxxxxx])
Equity Lending, Inc. Edina, MN (Subsidiary of
Colorado Community
First State Bank - CO
[Denver, CO])
Mountain Parks Financial Services, Inc. Denver, CO (Subsidiary of
Colorado Community
First State Bank - CO
[Denver, CO])
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OWNERSHIP
SUBSIDIARIES OF SUBSIDIARIES: LOCATION: PERCENTAGE
(CONTINUED)
Community First Minnesota Georgetown, British (Subsidiary of
Holdings, Inc. Cayman Islands Community First
National Bank [Fergus
Falls])
CFIRE, Inc. Fargo, ND (Subsidiary of
Community First
Minnesota Holdings,
Inc.)
Community First Colorado Georgetown, British (Subsidiary of
Holdings, Inc. Cayman Islands Community Colorado
Community First
National Bank [Ft.
Xxxxxx])
Colorado CFIRE, Inc. Fargo, ND (Subsidiary of
Community First
Colorado Holdings,
Inc.)
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