EXHIBIT 10.1
INVESTMENT AGREEMENT
This Investment Agreement dated as of July 31,1996, between Norwest
Corporation, a Delaware corporation ("Norwest"), and the undersigned
individuals, (individually, an "Investor," and collectively, the "Investors").
WHEREAS, Norwest and Aman Collection Services, Inc. (the "Company"), a
South Dakota corporation, are parties to an Agreement and Plan of
Reorganization dated as of March 21, 1996, as amended as of July 31, 1996 (as
amended, the "Reorganization Agreement") providing for the merger of a wholly-
owned subsidiary of Norwest with and into Company (the "Merger") in exchange
for a number of shares of common stock of Norwest, par value $1-2/3 per share
("Norwest Common Stock"), under the terms and conditions set forth therein;
WHEREAS, the Reorganization Agreement provides that the shares of Norwest
Common Stock to be issued in connection with the Merger (the "Shares") to
those Investors who are shareholders of the Company and to those Investors who
will receive Shares in connection with the "Phantom Stock Agreements" (as that
term is defined in the Reorganization Agreement) will be issued in a private
transaction pursuant to one or more exemptions from registration under the
Securities Act of 1993, as amended (the "Securities Act") at the time of the
consummation of the Merger and subject to registration rights as set forth in
this Investment Agreement;
WHEREAS, as a condition to the consummation of the Merger, Norwest is
requiring that each Investor enter into this Investment Agreement, setting
forth certain representations, agreements and undertakings for the purpose of
qualifying the Shares for such exemptions from registration and to fix the
terms and conditions of such registration rights.
NOW, THEREFORE, the parties hereto, in consideration of the premises and
of the mutual covenants and agreements contained herein, agree as follows:
1. REPRESENTATIONS AND COVENANTS OF INVESTORS. In order to induce
Norwest to consummate the Merger contemplated by the Reorganization Agreement
and to issue the Shares in connection with the Merger, each of the Investors
represents and warrants to, or agrees with, Norwest as follows:
(a) As of the date hereof, each Investor who is a shareholder of
the Company: (i) holds of record and beneficially that number of shares
of the Common Stock of Company set forth opposite his or her name on
Schedule 1(a) to this Investment Agreement ( the "Company Shares"); (ii)
has good title to all Company Shares held by such Investor, free and
clear of all liens, claims, and encumbrances,
except as set forth on Schedule 1(a); and (iii) is domiciled in the state
shown opposite each Investor's name on Schedule 1(a).
(b) Information with respect to Norwest. Norwest has furnished to
each of the Investors each of the following documents: (i) Norwest's
annual report on Form 10-K for the year ended December 31, 1995, (ii)
each of Norwest's quarterly reports on Form 10-Q filed with the Securities
and Exchange Commission (the "SEC") for each of the quarters between
January 1, 1995 and the date of this Investment Agreement, (iii) Norwest's
annual report to stockholders for its most recently completed fiscal year
and its notice and proxy statement for its most recent annual meeting of
stockholders, and (iv) all other documents, if any, filed with the SEC
pursuant to the reporting requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act") between January 1, 1996 and the date
of this Agreement.
(c) Investor Intent/Legending of Certificates.
(i) Investment Intent. Each Investor (1) has such knowledge
and experience in financial matters that the Investor is capable of
evaluating the merits and risks of the acquisition of the Shares and
has requested, received, reviewed and considered all information the
Investor deems relevant in making an informed decision to acquire
the Shares, (2) intends to acquire the Shares for investment only
and with no present intention of distributing or reselling any of
such Shares (other than for sales pursuant to this Investment
Agreement and the Registration Statement (as defined below), or
sales pursuant to this Investment Agreement which are otherwise in
compliance with the Securities Act and the rules and regulations
promulgated thereunder), and (3) agrees that, for a period of two
(2) years from the date the Shares are issued, the Investor will
not, directly or indirectly, offer, sell, pledge, transfer, or
otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares, other than
in compliance with the Reorganization Agreement, this Investment
Agreement, and the Securities Act and the rules and regulations
promulgated thereunder.
(ii) Legending of Certificates. Each Investor acknowledges
and agrees that the Shares being issued in accordance with the
Reorganization Agreement have not been registered under the
Securities Act in reliance upon one or more exemptions from
registration under the Securities Act and that the certificates
evidencing the shares will bear the following restrictive legend:
"The shares represented by this certificate were issued in
connection with the merger described in that certain Agreement
and Plan of Reorganization and related Agreement and Plan of
Merger dated March 21, 1996, as amended, by and between Norwest
Corporation ("Norwest") and Aman Collection Services, Inc. and
are
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subject to certain restrictions on transfer set forth in that
certain Investment Agreement dated as of July 31, 1996 and the
shareholders named therein (the "Investment Agreement"), and
were issued without registration under the Securities Act of
1933, as amended (the "Securities Act") in reliance on one or
more exemptions therefrom. These shares may not be sold or
otherwise transferred except pursuant to a registration
statement under the Securities Act, or upon receipt by Norwest
Corporation of an opinion of counsel reasonably satisfactory to
it that an exemption from registration under the Securities Act
is available, and except in compliance with the Investment
Agreement."
(iii) Each of the Investors further acknowledges and understands
that Norwest is relying on the truth and accuracy of the
representations made by each Investor herein for purposes of, among
other matters, establishing the existence of such exemptions.
(d) Investor Information. Each Investor covenants and agrees (i)
to furnish to Norwest, in writing, any information relating to the Investor
which Norwest reasonably determines to be necessary for disclosure in any
Registration Statement covering the Shares (or any amendment thereto) or
for the purpose of complying with an exemption from registration or
applicable state securities laws, promptly after request therefor by
Norwest, (ii) that the Investor or his representative will discuss such
information with Norwest or its representatives, upon the request of
Norwest, and (iii) that the Investor and his representative, if any, will
otherwise cooperate with Norwest to achieve compliance with applicable
exemptions and applicable federal and state securities laws. Each Investor
warrants that all information to be furnished by the Investor to Norwest
pursuant to this paragraph 1(d) shall be true and correct.
(e) Compliance with Securities Law and Transfer Requirements. Each
Investor agrees with Norwest that the Investor will fully comply, and
will cause each broker-dealer who sells Shares on the Investors' behalf
to fully comply, with all requirements under the Securities Act and the
Exchange Act, including without limitation the prospectus delivery
requirements under the Securities Act and the provisions of Rule 10b-6 of
the Exchange Act, in connection with any sale or distribution of the
Shares pursuant to the Registration Statement, and with the Transfer
procedures set forth in paragraph 3 hereof. Each Investor further agrees
that no Transfer of the Shares may be made to the public except in an
"ordinary trading transaction." As used in this Investment Agreement, an
"ordinary trading transaction" excludes any transaction in the Shares
constituting a short sale, the writing of options or other derivative
securities on the Shares (whether or not such options or derivative
securities are listed on an options or other securities exchange.)
(f) Capacity and Enforceability. Each Investor represents, warrants
and covenants to Norwest that (i) the Investor has full right, power,
authority and
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capacity to enter into this Investment Agreement and to consummate the
transactions contemplated hereby, and (ii) upon its execution and
delivery, this Investment Agreement shall constitute a valid and binding
obligation of the Investor, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors and contracting parties generally and except as
enforceability may be subject to general principles of equity.
2. REGISTRATION PROCEDURES AND EXPENSES. Following the Effective Date
of the Merger, Norwest agrees to take the following actions:
(a) Registration Statement. Subject to paragraph 2(b) below,
Norwest will prepare and file with the SEC a registration statement on
Form S-3 covering all of the Shares (the "Registration Statement") within
90 days following the Effective Date of the Merger, and shall use its
best efforts, including the filing of any necessary acceleration
requests, to cause the Registration Statement to become effective as soon
as practicable thereafter; provided, however, that Norwest shall have the
right to delay the effectiveness of such Registration Statement until the
Investors and their counsel (if any) have reviewed and approved the
information included in the Registration Statement about the Investors as
selling stockholders or in order to comply with any requirements or
limitations at any time imposed by the SEC on the registration of
securities for re-sale.
(b) Right to Delay Effectiveness of Registration. Norwest shall
have the right to delay effectiveness of the Registration Statement for
up to three successive 30-day periods, provided, however, that prior to
each such 30-day deferral, Norwest shall have delivered, to each Investor
a certificate signed by the Chairman, the President, or any Executive
Vice President of Norwest stating that in the good faith judgment of
Norwest, it would be detrimental to Norwest and its stockholders for
Norwest to immediately proceed with the effectiveness of such
Registration Statement.
(c) Amendments or Subsequent Registration Statement. Norwest
shall, subject to paragraph 3 below, prepare and file with the SEC such
amendments and supplements to the Registration Statement and the
prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective until the earlier of (i) the date that
all of the Shares have been sold pursuant thereto, or (ii) until all of
the Shares owned by the Investors may be sold pursuant to Rule 144(c)
through (i) of the SEC or any other rule of similar effect, without the
registration of such Shares under the Securities Act. In lieu of filing
an amendment or supplement to the Registration Statement, Norwest may, at
its option, file and cause to become effective a subsequent registration
statement on Form S-3 or on such other form as may be then available to
Norwest covering the Shares to permit the Transfer (as defined in
paragraph 3(a) hereof) of the Shares from time to time, provided,
however, that there shall be no lapse in the effectiveness of a
Registration Statement filed pursuant to this Investment Agreement,
subject to any rules and regulations of the SEC with respect to such
effectiveness in the event of a
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subsequent registration statement. If Norwest elects to file such
subsequent registration statement which thereafter becomes effective,
such subsequent registration statement, upon its effectiveness, shall be
deemed the "Registration Statement" for all purposes of this Investment
Agreement. The period from the effective date of the Registration
Statement through the earlier of the dates described in clauses (i) and
(ii) of this paragraph 2(c) is herein referred to as the "Effective
Period."
(d) Copies of Prospectus. Norwest shall furnish to the Investors
with respect to the Shares registered on such Registration Statement
copies of the preliminary prospectuses and prospectuses as required by
the Securities Act and such other documents as the Investors may
reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Shares by the Investors. Norwest shall
also file with the New York Stock Exchange ("NYSE") and the Chicago Stock
Exchange ("CSE") (the exchanges on which the Shares will be listed for
trading) such copies of the preliminary prospectus and prospectus
included in the Registration Statement as may be required by the rules of
the NYSE and the CSE, or as may be contemplated by Rule 153 as
promulgated by the SEC pursuant to the Securities Act.
(e) Blue Sky Compliance. Norwest shall file documents required of
Norwest for routine blue sky clearance in ordinary trading transactions,
or in lieu of such filings, Norwest may rely on such exemptions therefrom
as may then be available to Norwest or in respect of the Shares under the
blue sky laws of any jurisdiction in which such clearance is sought;
provided, however, to the extent that any Transfer is proposed to be made
by the Investor without using the services of a broker-dealer or agent
registered in each state in which such Transfer is deemed to occur, (i)
Norwest shall not be required to take any further action to obtain blue
sky clearance in such state if the Transfer would otherwise be exempt
were the Investor to use the services of a broker-dealer or agent
registered in such state; and (ii) Norwest may defer such proposed
Transfer until it has received such information and assurances as its
counsel may reasonably request to determine that the manner of such
proposed Transfer is in compliance with such blue sky clearance as
Norwest has already obtained or with such exemption on which Norwest is
then relying. Norwest shall not, in any event, be required to obtain
blue sky clearance for the Shares in any state where Norwest may be
required to qualify to do business as a foreign corporation or as a
dealer in any state where it is not so qualified, to conform its
capitalization or the composition of its assets at the time to the
securities or blue sky laws of such state, to take any action which would
subject it to service of process in suits other than those arising out of
the offer and sale of the Shares covered by such Registration Statement,
or to subject itself to taxation in any state where it is not so subject
at the time Norwest is asked to obtain blue sky clearance.
(f) Expenses. Norwest agrees to bear all expenses in connection
with the registration of the Shares on such Registration Statement and
the satisfaction of the blue sky requirements set forth in this
Investment Agreement, except underwriting
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discounts and selling commissions, and fees and expenses, if any, of
counsel and other advisors to the Investors.
(g) Underwriters. Norwest understands that the Investors disclaim
being underwriters for purposes of the Securities Act, but if any of the
Investors are deemed to be underwriters, that fact shall not relieve
Norwest or any of the Investors of any of their respective obligations
under this Investment Agreement.
3. TRANSFERS OF SHARES AFTER REGISTRATION; AMENDED REGISTRATION
STATEMENT.
(a) Transfers/Limitations on Transfers.
(i) In General. The Investors agree that none of them will
effect any disposition of any of the Shares, whether by sale,
assignment, pledge, or otherwise (a "Transfer") unless (1) such
Investor has first complied with the provisions of this paragraph 3,
(2) until after publication by Norwest of financial results
including at least 30 days of combined operations of Company and
Norwest, and (3) if applicable, the Investor has complied with the
provisions of paragraph 2(e) with respect to a Transfer.
(ii) Transfer Procedures. Subject to the provisions of
subparagraph 3(a)(i), each Investor agrees that for each Transfer of
the Shares made during the Effective Period, (i) each proposed
Transfer shall be for not less than 1,000 Shares; (ii) the Investor
desiring to make a Transfer shall give Norwest five (5) business
days (the "Notice Period") written notice of the proposed Transfers
prior to the date the proposed Transfers will occur, which notice
shall be in the form attached hereto as Exhibit A (the "Transfer
Notice"), which Notice may be given by facsimile transmission; and
(iii) Norwest does not elect in writing as provided in paragraph
3(b) below to defer such proposed Transfer. The Transfer Notice to
Norwest shall be deemed to have been given to Norwest, for purposes
of computing the Notice Period, on the date Norwest actually
receives the Transfer Notice. The last day of the Notice Period
shall be the fourth business day after Norwest receives the Transfer
Notice. The Transfer Notice shall specify the number of Shares
proposed to be transferred, and identify the registered broker-
dealer(s) (if applicable) who will effect the Transfers. If any
Transfer is to be made otherwise than pursuant to the Registration
Statement and the prospectus included therein, the Transfer Notice
shall also describe the manner in which such Transfer is to be made,
and be accompanied by an opinion of counsel experienced in
securities law matters reasonably satisfactory to Norwest, stating,
in substance, that the Transfer is exempt from registration under
the Securities Act. For purposes of this Investment Agreement, a
Transfer shall be deemed to have occurred on the date (A) the order
to sell any Shares is placed with a registered broker-dealer, or (B)
Investor enters into any agreement or undertaking (other than in the
circumstances described in clause (A) above) pursuant to which the
Investor becomes irrevocably and unconditionally committed to
dispose of any
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Shares. A pledge of any Shares to a third party for purposes of
security (a "Pledge") shall not be deemed a Transfer for purposes of
this paragraph 3 if the Investor making the Pledge has delivered to
Norwest a notice in the form attached hereto as Exhibit B and the
opinion of counsel referred to above in this paragraph 3(a) prior to
the Pledge. Each Investor agrees that a Transfer Notice may not be
given to Norwest by such Investor and a Transfer may not be made
more frequently by such Investor than once in each calendar quarter
the Effective Period.
(b) Notice of Deferral of Proposed Transfer. If Norwest elects to
defer the proposed Transfer as provided in paragraph 3(c) or 3(d) below,
then on or before 5:00 p.m. (Minneapolis, Minnesota time) on the date the
Notice Period expires, Norwest shall notify the Investor from whom the
Transfer Notice was received (the "Transferring Investor") that the
proposed Transfer must be deferred either (A) because, in the opinion of
Norwest's counsel, the Registration Statement is required to be amended
or supplemented so that a Transfer of the Shares pursuant to the
Registration Statement can be effected in compliance with the Securities
Act and the Exchange Act, or (B) because Norwest has given the Investors
either the certificate described in paragraph 3(d)(i) or the notice
described in paragraph 3(d)(ii) below. If Norwest does not elect to
defer the proposed Transfer, then Norwest will so advise the Transferring
Investor in writing on or before the date and time the Notice Period
expires. Such Transfer must thereafter be completed as set forth in the
Transfer Notice on or before the close of business on the fifth business
day following the expiration of the Notice Period, unless the
Transferring Investor has received either the certificate described in
paragraph 3(d)(i) below or the notice described in paragraph 3(d)(ii)
below, prior to the close of business on such fifth business day.
(c) Right to Amend Registration Statement. If Norwest notifies the
Investors (whether or not Norwest has received a Transfer Notice) that
the Registration Statement may be required to be amended or supplemented
so that a Transfer of the Shares pursuant to the Registration Statement
can be effected in compliance with the Securities Act and the Exchange
Act, then (i) Norwest shall, within twenty (20) business days after the
date of such notice, prepare and file with the SEC such amendments and
supplements to the Registration Statement as may be necessary to permit
the Investors to Transfer their Shares pursuant to the Registration
Statement in compliance with the Securities Act and the Exchange Act, and
shall use its best efforts to cause such amendment or supplement to
become effective as soon as practicable thereafter, including the filing
of all necessary acceleration requests, and (ii) until such amendment or
supplement becomes effective pursuant to the rules and regulations
promulgated under the Securities Act, none of the Investors shall effect
any Transfer of the Shares pursuant to the Registration Statement.
Norwest shall notify each Investor of the effectiveness of any such
amendment or supplement to the Registration Statement. Notwithstanding
the foregoing, the obligation of Norwest to file any amendment or
supplement to the Registration Statement shall not apply with respect to
any amendment or supplement relating to information supplied by any of
the Investors or any other
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person selling shares pursuant to the Registration Statement unless the
Investors or such other person shall have given prior written notice to
Norwest that an amendment or supplement is required, in which case (i)
Norwest shall file such amendment or supplement within twenty (20)
business days following the date such notice is received by Norwest, and
(ii) until such amendment or supplement becomes effective pursuant to the
rules and regulations promulgated under the Securities Act, none of the
Investors shall effect any Transfer of the Shares pursuant to the
Registration Statement.
(d) Right to Defer Transfer.
(i) If Norwest shall furnish to the Transferring Investor a
certificate signed by the Chairman, the President, or any Executive
Vice President of Norwest stating that in the good faith judgment of
Norwest, it would be materially detrimental to Norwest and its
stockholders for the Investor to immediately proceed with the
proposed Transfer, Norwest shall have the right to defer such
Transfer for a reasonable period not to exceed 30 days, and until
the expiration of such 30-day period (or any successive 30-day
period to which Norwest shall become entitled through the execution
and delivery to the Transferring Investor of one or more additional
certificates prior to the expiration of such 30-day period), none of
the Investors shall effect any Transfer of the Shares.
(ii) If Norwest receives a Transfer Notice on or after each
March 31, June 30, and September 30, and December 31 hereafter,
commencing September 30, 1996, and prior to the day on which Norwest
releases for publication, by press release or otherwise, its summary
statement of earnings for the immediately preceding quarter or year
(as may then be applicable) (an "Earnings Release"), Norwest, at its
option, and in addition to and not in lieu of any right of Norwest
to defer a Transfer pursuant paragraph 3(d)(i) hereof, may also
defer any Transfer described in such Transfer Notice, and no such
Transfer shall be made, until a date not later than the fourth
business day after the day on which the Earnings Release occurs.
Norwest shall advise the Transferring Investor when the Earnings
Release is made.
(iii) Notwithstanding any exercise by Norwest of this deferral
right, the Transferring Investors shall have the right to effect a
Transfer of the Shares during the period commencing on the second
business day after each date (a "Filing Date") on which Norwest
files with the SEC a quarterly report on Form 10-Q or, solely at
Norwest's option, a current report on Form 8-K, setting forth its
quarterly or annual summary statement of earnings (as may then be
applicable) and ending on the fifteenth business day following such
date provided that (A) the Transferring Investor has first given
Norwest a Transfer Notice not later than five business days prior to
the proposed effective date of such Transfer within such period; and
(B) Norwest does not exercise its right to defer such Transfer
following receipt of such notice from the Transferring Investor by
delivering the
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certificate described in the first sentence of this paragraph
3(d)(i). Any such certificate delivered subsequent to a Filing Date
shall be effective only if based on events occurring or
circumstances arising subsequent to such Filing Date.
(e) Transfer Procedures. During the Effective Period, if a
Transfer has been made in compliance with this Investment Agreement the
Investor shall furnish to Norwest, with a copy to Norwest's Transfer
Agent a representation letter in the form of Exhibit C hereto, addressed
to Norwest and signed by the Investor making the Transfer. Upon receipt
of such representation letter, Norwest shall instruct the Transfer Agent
to transfer the Shares in accordance with the Investor's instructions
free of any restrictive legend (except for any portion of the Shares not
being transferred, the certificates for which Shares shall continue to
bear a restrictive legend in the form set forth in paragraph 1(c)(ii)
hereof), subject to the Investor's compliance with the Transfer Agent's
customary transfer documentation requirements.
4. INFORMATION TO BE FURNISHED TO INVESTORS. So long as the
Registration Statement is effective, Norwest shall furnish to each of the
Investors as soon as practicable after available, one copy of (i) its annual
report to stockholders (which shall contain audited financial statements
prepared in accordance with generally accepted accounting principles), (ii)
such quarterly reports to stockholders which Norwest may prepare and
distribute from time to time, (iii) a full copy of the Registration Statement
covering the Shares (excluding exhibits), and (iv) to the extent not
previously delivered pursuant to this Investment Agreement, all documents
incorporated by reference into the Registration Statement as of the date it
became effective, excluding however any exhibits thereto, or any such
documents incorporated by reference filed solely for the purpose of placing
another document on file with the SEC. In addition, upon the reasonable
request of any of the Investors, Norwest shall furnish to such Investor any
other information that is generally made available to the public by Norwest.
5. TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed by this Investment Agreement upon the transferability of the Shares
shall terminate as to any particular shares when such Shares shall have been
effectively registered under the Securities Act and sold or otherwise disposed
of in accordance with this Investment Agreement, or at such time as an opinion
of counsel satisfactory to Norwest shall have been rendered to the effect that
such conditions are not necessary in order to comply with the Securities Act.
6. INDEMNIFICATION.
(a) Definitions. As used in this paragraph 6, (i) the term
"Registration Statement" shall include any preliminary prospectus, final
prospectus, exhibit, amendment or supplement included in or relating to
the registration statement referred to in this Investment Agreement, and
(ii) the term "untrue statement" shall include any statement of a
material fact in the Registration Statement which is (or is alleged to
be) untrue, and any omission (or alleged omission) to state in the
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Registration Statement a material fact required to be stated therein or
necessary to make any statement therein, in the light of the circumstances
under which it was made, not misleading.
(b) Indemnification of the Investors. Norwest agrees to indemnify and
hold harmless each Investor (and each person, if any, who controls such
Investor within the meaning of Section 15 of the Securities Act of Section
20 of the Securities Exchange Act of 1934 (the "Exchange Act")) from and
against any claims, losses, damages or liabilities to which such Investor
(or any such controlling person) may become subject (under the Securities
Act, the Exchange Act or otherwise) insofar as such claims, losses, damages
or liabilities arise out of, or are based upon, any untrue statement of a
material fact contained in the Registration Statement, and subject to
subparagraph 6(d) below, Norwest will indemnify such Investor for
attorneys' fees and expenses reasonably incurred in investigating,
preparing to defend or defending against any litigation or investigation or
proceeding by a governmental agency or body commenced or threatened, or any
claim whatsoever based upon an untrue statement; provided, however, that
Norwest shall not be liable to indemnify a Investor to the extent that such
claim, loss, damage or liability arises out of or is based upon (i) an
untrue statement made in reliance upon and in conformity with information
furnished to Norwest by or on behalf of such Investor specifically for use
in preparation of the Registration Statement, or (ii) any Transfer by such
Investor not in compliance with the terms of this Investment Agreement.
(c) Indemnification of Norwest. Each Investor agrees to indemnify and
hold harmless Norwest, each officer of Norwest who signs the Registration
Statement, and each director of Norwest (and each person, if any, who
controls such other person within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act), from and against any
claims, losses, damages or liabilities to which Norwest (or any such
controlling person) may become subject (under the Securities Act, the
Exchange Act, or otherwise), insofar as such claims, losses, damages or
liabilities arise out of, or are based upon (A) any untrue statement made
in reliance upon and in conformity with information furnished by or on
behalf of such Investor specifically for use in preparation of the
Registration Statement, or (B) any Transfer by such Investor not in
compliance with the terms of this Investment Agreement; and subject to
subparagraph 6(d) below, such Investor will reimburse Norwest (and any such
officer, director or other person) for attorneys' fees and expenses
reasonably incurred in investigating, preparing to defend and defending
against any litigation or investigation or proceeding by a governmental
agency or body commenced or threatened, or any claim whatsoever based upon
an untrue statement.
(d) Notice and Defense of Claim. In case any proceeding (including
any governmental investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either paragraph (a)
or (b) of this Section 6, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing, and the indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified
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party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel, or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be in appropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Investors that
are indemnified parties in the case of parties to be indemnified pursuant
to paragraph (a) of this Section 6 and by Norwest in the case of parties to
be indemnified pursuant to paragraph (b) of this Section 6. An indemnifying
party shall not be liable for any settlement of any proceeding effected
without its prior written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
7. NOTICES. Except for a notice of deferral of a proposed Transfer by
Norwest under paragraph 3(b), any notice or other communication provided for
herein or given hereunder to a party hereto shall be in writing and shall be
delivered in person or sent by first class mail or telecopy to the address or
telecopy number set forth below, addressed as follows:
If to Norwest:
Norwest Corporation
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Secretary
Telecopy Number: (000) 000-0000
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If to any one or all of the Investors:
Aman Collection Services, Inc.
0 Xxxxx 0xx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxx
Attention: (Investor Name)
Telecopy Number: (000) 000-0000
or to such other address with respect to a party as such party shall notify the
other in writing as above provided.
8. SUCCESSORS AND ASSIGNS. This Investment Agreement shall be binding
upon the parties hereto and their respective successors and assigns, but the
rights granted hereunder shall not be assignable by any Investor by operation
of law or otherwise without the prior written consent of Norwest.
9. GOVERNING LAW. This Investment Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Minnesota.
10. COUNTERPARTS. This Investment Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one instrument.
11. CAPTIONS. The captions contained in this Investment Agreement are for
convenience of reference only and do not form a part of the Investment
Agreement.
[The remainder of this page has intentionally been left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Investment
Agreement as of the date first above written.
NORWEST CORPORATION INVESTORS
By /s/ Xxxx X. Xxxxx /s/ Xxxxxx X. Xxxx
----------------- ----------------------
Its Executive Vice President Xxxxxx X. Xxxx
------------------------
/s/ Xxxxxx X. Xxxx
----------------------
Xxxxxx X. Xxxx
/s/ Xxxxxx X. Gloss
----------------------
Xxxxxx X. Gloss
/s/ Xxxx X. Xxxxx
----------------------
Xxxx X. Xxxxx
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EXHIBIT A
NOTICE OF PROPOSED TRANSFER (SALE)
___________, 199_
Norwest Corporation
Xxxxxxx Xxxxxx
0xx Xxxxxx and Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Corporate Secretary
RE: Notice of Sale of Common Stock Pursuant to an Investment Agreement Dated
July __, 1996 Relating to the Acquisition of AMAN COLLECTION SERVICE, INC.
by Norwest Corporation
Ladies and Gentlemen:
---------------------
I am a party to the above-referenced Investment Agreement and a "Selling
Stockholder" named in the form of prospectus included in the Registration
Statement on Form S-3 (the "S-3 Registration Statement") covering shares of the
common stock ($1-2/3 par value) (the "Common Stock") of Norwest Corporation
("Norwest") issued in connection with the above Acquisition. In accordance with
the provisions of Section 3 of the Investment Agreement, you are hereby notified
that I propose to sell __________ shares (the "Shares") of Norwest Common Stock
(the "Proposed Transfer") in an "ordinary trading transaction" (as that term is
defined in Paragraph 1(3), as set forth in this Notice.
In connection with the Proposed Transfer, the manner in which the Proposed
Transfer will be made is described in either in paragraphs (1), (2), or (3)
below, as indicated by an "X" in the appropriate space below.
___ (1) I intend to place an order to sell the Shares pursuant to the S-3
Registration Statement and the Prospectus included therein with
the registered broker-dealer identified below upon expiration of
the Notice Period.
Name of Selling Broker:
-------------------------------------------
Address:
----------------------------------------------------------
Contact Person:
---------------------------------------------------
Telephone and Fax Nos.:
-------------------------------------------
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___ (2) I intend to act for my own account in connection with the
Proposed Transfer and to sell the Proposed Shares pursuant to the
S-3 Registration Statement and the Prospectus included therein
without using the services of a registered broker-dealer in the
transaction described on the Attachment to this Notice. I
understand that Norwest may defer the Proposed Transfer until it
has received such information and assurances from me as its
counsel may reasonably request to determine that the manner of the
Proposed Transfer is in compliance with the blue sky clearance for
a Transfer under the Investment that Norwest has already obtained
or with any exemption from such clearance on which Norwest is
relying.
I understand that (I) if, on or before 5:00 p.m. Minneapolis, Minnesota
time on the fifth business day from the date Norwest receives this Notice (the
"Notice Period"), Norwest notifies me by registered or certified first class
mail or by fax at the address and/or fax number listed below that the Proposed
Transfer must be deferred pursuant to the Investment Agreement (the "Deferral
Notice"), I WILL NOT PROCEED WITH THE PROPOSED TRANSFER AS DESCRIBED IN THIS
NOTICE; or (II) if Norwest notifies me on or before the time and day referred to
in clause (i) above that it has not elected to defer the Proposed Transfer may
be effected as outlined in this Notice, I THE PROPOSED TRANSFER MUST BE
COMPLETED NO LATER THAN THE CLOSE OF BUSINESS ON THE FIFTHDAY AFTER THE DATE THE
NOTICE PERIOD EXPIRES, AND BEFORE I RECEIVE A SUBSEQUENT DEFERRAL NOTICE FROM
NORWEST, IF ANY MAY THEN BE GIVEN UNDER THE TERMS OF THE INVESTMENT AGREEMENT.
Norwest should send all notices contemplated by the Investment Agreement
and relating to Proposed Transfer to me at the address shown below:
-----------------------------------------
Xxxxxx
-----------------------------------------
Xxxx Xxxxx Zip Code
-----------------------------------------
Fax No.
If no address or fax number is provided, I understand Norwest will send the
notice to the address and/or fax number for notices to Investors shown in the
Investment Agreement.
I have reviewed the form of the Prospectus dated __________, 1996, and
hereby represent to Norwest that the information contained therein with respect
to me
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as a Selling Stockholder is true and correct as of the date hereof and will
be true and correct as of the date of the delivery of the Prospectus to the
purchaser of the Shares. I will deliver, or cause a copy of the Prospectus
to be delivered with or prior the sale of the Shares to the purchaser
thereof in accordance with Section 5(b) of the Securities Act of 1933. If
applicable, I understand I may rely on Rule 153 under the Securities Act of
1933 to satisfy such prospectus delivery requirements if the Proposed
Transfer is being made on the New York Stock Exchange or the Chicago Stock
Exchange.
Very truly yours,
------------------------------
Name of Selling Investor
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EXHIBIT B
NOTICE OF PROPOSED TRANSFER (PLEDGE)
-------------------, 199-
Norwest Corporation
0xx Xxxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Senior Vice President
and Secretary
RE: Pledge and Consent Pursuant to an Investment Agreement Dated as of July 31,
1996 Relating to the Acquisition of AMAN COLLECTION SERVICE, INC. by
Norwest Corporation
Ladies and Gentlemen:
I am entering into a loan transaction (the "Loan") with the party
identified below (the "Lender") which Loan is to be secured by, among other
collateral, a pledge of _______ shares of the Common Stock of Norwest
Corporation (the "Shares") held by me to the Lender (the "Pledge"). The Shares
were issued to me without registration under federal and state securities laws
pursuant to that certain Investment Agreement dated July 31, 1996. The
certificates evidencing the Shares bear a restrictive legend to the effect that
any transfer of such Shares is restricted by, among other things, the provisions
of the Investment Agreement. Section 1(b)(i) of the Investment Agreement
provides that I ". . . will not, directly or indirectly. . . pledge. . . any of
the Shares. . . " except in compliance with the Investment Agreement, among
other agreements. Section 3(a) of the Investment Agreement requires me to
deliver notice to Norwest of any proposed Pledge describing the proposed Pledge,
together with an opinion of counsel that such pledge is exempt from registration
under the Securities Act of 1933 (the "Securities Act"), and that Norwest
consent to such pledge.
I hereby enclose the opinion of counsel required by the Investment
Agreement in connection with the proposed Pledge, and request that Norwest
consent to the proposed Pledge of the Shares to the Lender.
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Name and Address of Lender:
-------------------------------------
-------------------------------------
Name of Contact Person: -------------
Tel.:------------; Fax.:------------
Very truly yours,
-----------------------------------
Name of Investor
ACKNOWLEDGMENT BY LENDER
The Lender understands and agrees that the Shares are subject to the
restrictions on transfer described in the Investment Agreement, a copy of which
has been furnished to the Bank, and that any disposition of the Shares by the
Lender following foreclosure of the Pledge will be subject to restrictions on
transfer set forth on the certificates evidencing the Shares and to the
Investment Agreement.
-----------------------------------
Name of Lender
By --------------------------------
Its ----------------------------
Consent is hereby given for the pledge by the Borrower named above to the
above Lender of shares of Norwest Corporation common stock received pursuant to
that certain Investment Agreement dated as of July 31, 1996.
NORWEST CORPORATION
By --------------------------------
Its ----------------------------
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EXHIBIT C
REPRESENTATION LETTER
___________________, 199_
Norwest Corporation
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Secretary
Norwest Bank Minnesota, N.A.
Stock Transfer
000 Xxxxx Xxxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxx Xx. Xxxx, Xxxxxxxxx 00000-0000
Attn.: Xx. Xxxxx Xxxxxxxxx
RE: Notice of Sale of Common Stock Pursuant to an Investment Agreement Dated as
of July 31, 1996 Relating to the Acquisition of AMAN COLLECTION SERVICE,
INC. by Norwest Corporation ("Norwest")
Ladies and Gentlemen:
I am a party to the above-referenced Investment Agreement and a "Selling
Investor" named in the form of prospectus included in that certain Registration
Statement on Form S-3 (the "S-3 Registration Statement"). In accordance with the
provisions of Section 3(e) of the Investment Agreement, you are hereby notified
that I have sold _______ shares (the "Shares") (the "Transfer") of the common
stock ($1-2/3 par value) (the "Common Stock") of Norwest pursuant to the S-3
Registration Statement.
In connection with this transfer, and as a requirement to the transfer of
the Shares sold to the purchaser by me, I hereby represent and warrant to you
and to Norwest as follows:
a. Norwest was given notice of the proposed Sale as required under
the Investment Agreement, DID NOT ELECT TO DEFER to the Transfer, and the
Transfer has been made in compliance with all the terms and provisions of
the Investment Agreement.
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b. I have delivered, or caused the delivery prior to the sale of the
Shares to the purchaser thereof, of a copy of the Prospectus included in
the S-3 Registration Statement and have otherwise have complied with all
prospectus delivery requirements under the Securities Act of 1933 (the
"Securities Act"). The Transfer of the Shares is not subject to the
provisions of Rule 10b-6 promulgated under the Securities Act of 1934 (the
"Exchange Act"), or if the Transfer is subject to Rule 10b-6, the Transfer
has been made in accordance with the requirements of such rule, and.
c. The number of Shares being transferred, when added to any shares
previously transferred pursuant to the S-3 Registration Statement or the
Investment Agreement, do not exceed the number of shares set forth opposite
my name in the "Selling Stockholder" table in the Prospectus, and will not
cause a breach of any representation or warranty made by me in the
Investment Agreement.
I hereby undertake to provide you with such other documentation as the
Transfer Agent may request pursuant to its customary transfer documentation
requirements in order to complete the transfer of the Shares.
Very truly yours,
____________________________
Name of Investor
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