Exhibit 1.1
$60,000,000
COMMUNITY FIRST BANKSHARES, INC.
7.30% SUBORDINATED NOTES DUE 2004
PURCHASE AGREEMENT
June 19, 1997
XXXXX XXXXXXX INC.
XXXXX, XXXXXXXX & XXXXX, INC.
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")
proposes to sell to Xxxxx Xxxxxxx Inc. and Xxxxx, Xxxxxxxx & Xxxxx, Inc. (the
"Initial Purchasers") its 7.30% Subordinated Notes due 2004 in an aggregate
principal amount of $60,000,000 (the "Securities"). The Securities will be
issued under an indenture, dated as of June 24, 1997 (the "Indenture"), between
the Company and Norwest Bank Minnesota, National Association, as trustee (the
"Trustee"). The net proceeds to the Company from the sale of the Securities
will be used to provide a portion of the financing to fund the acquisition of
KeyBank National Association (Wyoming), ("Key Bank"), pursuant to that certain
Stock Purchase Agreement, dated February 18, 1997 (the "Stock Purchase
Agreement") among Keycorp, Key Bank of the Rocky Mountains, Inc., and the
Company.
The sale of the Securities to the Initial Purchasers will be made without
registration of the Securities under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon exemptions from the registration
requirements of the Securities Act. The Company hereby confirms its agreement
with respect to the sale of the Securities to the Initial Purchasers.
1. OFFERING MEMORANDA.
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum, dated June 11, 1997 (including any and all
exhibits thereto and any information incorporated by reference therein, and
collectively with the "Supplement dated June 17, 1997 to Preliminary Offering
Memorandum Dated June 11, 1997", the "Preliminary Offering Memorandum"), and an
offering memorandum, dated June 19, 1997 (including any and all exhibits thereto
and any information incorporated by reference therein, the "Offering
Memorandum"). Each of the Preliminary Offering Memorandum and the Offering
Memorandum sets forth certain information concerning the Company and the
Securities. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendment
or supplement thereto, in connection with the offer and sale of the Securities
by the Initial Purchasers. Unless stated to the contrary, any references herein
to the terms "amend", "amendment" or "supplement" with respect to the Offering
Memorandum shall be deemed to refer to and include any information filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), subsequent
to the Closing Date which is incorporated by reference therein.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company represents and warrants to, and agrees with, the
Initial Purchasers as follows:
(i) As of their respective dates, the Preliminary Offering
Memorandum and the Offering Memorandum (the "Memoranda") did not, and at
the Closing Date the Offering Memorandum 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, in the light
of the circumstances under which they were made, not misleading; except
that the foregoing shall not apply to statements in or omissions from the
Preliminary Offering Memorandum or the Offering Memorandum in reliance
upon, and in conformity with, written information furnished to the Company
by you specifically for use in the preparation thereof.
(ii) Neither the Company nor any of its Affiliates (as that term
is used within the meaning of Rule 501(b) of Regulation D under the
Securities Act ("Regulation D")), nor any person acting on its or their
behalf has, directly or indirectly, made offers or sales of any security,
or solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or will be integrated
with the sale of the Securities in a manner that would require the
registration of the Securities under the Securities Act.
(iii) Neither the Company, nor any of its Subsidiaries, nor any
person acting on its or their behalf has (i) engaged, in connection with
the offering of the Securities, in any form of general solicitation or
general advertising (as those terms are used within the meaning of
Regulation D) or (ii) solicited offers for, or offered or sold, such
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(iv) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(v) The consolidated financial statements of the Company,
together with the notes thereto, included in the Memoranda (and any
amendments or supplements thereto) comply in all material respects with the
requirements of the Securities Act and Exchange Act and fairly present the
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 Memoranda); and the supporting schedules
present fairly the information required to be stated therein; and the other
financial and statistical information and data of the Company and its
consolidated subsidiaries included in the Preliminary Offering Memorandum
or Offering Memorandum, historical and pro forma, are accurately presented
and prepared on a basis consistent with such financial statements and the
books and records of the Company. The independent public accountants whose
reports are included in the Memoranda, are independent public accountants
as required by the Securities Act and Exchange Act and the rules and
regulations ("Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder.
(vi) 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 CFB Capital I (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
Memoranda, 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.
(vii) 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 Memoranda 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 an Amended and Restated Trust
Agreement, among Wilmington Trust Company, the administrative trustees
named therein and the Company and described in the Memoranda; the Trust is
not a party to or otherwise bound by any agreement other than those
described in the Memoranda; 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.
(viii) Except as contemplated in the Memoranda, subsequent to the
respective dates as of which information is given in the Memoranda, 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 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,
in the general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of the
Trust, the Company and its Subsidiaries, taken as a whole (a "Material
Adverse Change").
(ix) Except as set forth in the Memoranda, there is not pending
or, to the knowledge of the Company, 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.
(x) Each of this Agreement, the Indenture and the Registration
Rights Agreement between the Company and the Initial Purchasers (the
"Registration Rights Agreement") has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and binding
obligation of the Company, enforceable in accordance with its terms, except
as rights to indemnity hereunder and under the Registration Rights
Agreement 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 and the Registration Rights
Agreement and the consummation of the transactions herein and 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 is a party or by which it is
bound or to which any of its property is subject, the Company's charter or
by-laws, or any order, rule, regulation or decree of any court or
governmental agency or body having
jurisdiction over the Company or any of its properties; 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 and the Registration Rights
Agreement or for the consummation of the transactions contemplated hereby
or thereby, including the issuance or sale of the Securities by the
Company; it is not necessary in connection with the offer, sale and
delivery of the Securities or in connection with the initial resale of such
Securities in the manner contemplated by this Agreement and the Offering
Memorandum to register the Securities under the Securities Act; and the
Company has full power and authority to enter into this Agreement, the
Indenture and the Registration Rights Agreement and to authorize, issue and
sell the Securities as contemplated by this Agreement.
(xi) All of the issued and outstanding shares of capital stock of
the Company, including the outstanding shares of Common Stock, are duly
authorized and 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 Memoranda. Except as otherwise stated in the
Memoranda, 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, by-laws or any
agreement or other instrument to which the Company is a party or by which
the Company is bound. The offering or sale of the Securities as
contemplated by this Agreement does not give rise to any rights for or
relating to the registration of any shares of Common Stock or other
securities 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 Memoranda and except for any
directors' qualifying shares, the Company owns of record and beneficially,
free and clear of any security interests, claims, liens, proxies, equities
or other encumbrances, all of the issued and outstanding shares of such
stock. Except as described in the Memoranda, 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
Memoranda.
(xii) The Securities to be issued and sold hereunder have been
duly and validly authorized by the Company and the Securities, when they
are authenticated by the Trustee and issued, sold and delivered in
accordance with this Agreement and the Indenture against payment therefor
as provided by this Agreement, will have been duly and validly executed,
authenticated, issued and delivered and will constitute valid and binding
obligations of the Company, enforceable against the Company, in accordance
with their terms and entitled to the benefits provided by the Indenture,
except to the extent that enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and (B)
general principles of equity.
(xiii) Except to the extent that the failure to comply, lack of
possession or invalidity would not result in a Material Adverse Change, (i)
the Trust and the Company and each of its Subsidiaries holds, and is
operating in compliance 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 (ii) all such franchises, grants, authorizations, licenses,
permits, easements, consents, certifications and orders are valid and in
full force and effect; and the Trust, the Company and each of its
Subsidiaries is in compliance in all material respects with all applicable
federal, state, local and foreign laws, regulations, orders and decrees.
(xiv) The Company and its Subsidiaries have good and marketable
title to all property described in the Memoranda 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 Memoranda; 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 Memoranda; except as stated in the Memoranda, 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.
(xv) Neither the Company nor any of its Subsidiaries is in
violation of its respective charter or by-laws; 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.
(xvi) The Trust, 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 Trust, the Company or any of its Subsidiaries is
contesting in good faith.
(xvii) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Securities other than the Memoranda or other materials
permitted by the Securities Act to be distributed by the Company.
(xviii) Each of the Trust, the Company and its Subsidiaries
maintains 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.
(xix) Other than as contemplated by this Agreement, the Company
has not incurred any liability for any finder's or broker's fee or agent's
commission in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.
(xx) Neither the Company nor any of its affiliates is presently
doing business with the government of Cuba or with any person or affiliate
located in Cuba.
(xxi) Proceeds from the sale of the Securities will constitute
"tier II" capital under applicable regulations, currently in effect, as
promulgated by the FRB.
(xxii) To the best knowledge of the Company, following the Closing
Date (as defined in paragraph 3(a) below), all conditions precedent to the
obligations of the Company, Keycorp and Key Bank of the Rocky Mountains,
Inc. to effect the transactions contemplated in the Stock Purchase
Agreement will have been performed, complied with, or otherwise satisfied
or waived, and no other action will be required in order to consummate the
transactions contemplated by the Stock Purchase Agreement, other than
completion of the Company's bank financing described in the Offering
Memorandum and delivery of customary closing certificates and opinions. If
waived, any condition so waived has been identified to the Underwriters.
(xxiii) The Company and its Subsidiaries, and to the best knowledge
of the Company, Keycorp has complied in all material respects with all
covenants and agreements set forth in the Stock Purchase Agreement. To the
best knowledge of the Company, each of the representations and warranties
in the Stock Purchase Agreement of Keycorp is true and correct in all
material respects.
(a) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Initial Purchasers shall be deemed a
representation and warranty by the Company to each Initial Purchaser as to the
matters covered thereby.
1. PURCHASE, SALE AND DELIVERY OF SECURITIES.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to issue and sell the Securities to the Initial
Purchasers, and each Initial Purchaser agrees, severally and not jointly, to
purchase from the Company the principal amount of the Securities set forth
opposite the name of such Initial Purchaser in Schedule I hereto. The purchase
price for each Security shall be 99.0% of the principal amount thereof. In
making this Agreement, each Initial Purchaser is contracting severally and not
jointly; except as provided in Section 8 hereof, the agreement of each Initial
Purchaser is to purchase only the respective amount of Securities specified in
Schedule I.
The Securities will be delivered by the Company to Xxxxx Xxxxxxx Inc.
for the accounts of each Initial Purchaser against payment of the purchase price
therefor by immediately available funds payable to the order of 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 full business day following the date hereof,
or at such other time and date as you and the Company determine, such time and
date of delivery being herein referred to as the "Closing Date." If the Initial
Purchasers so elect, delivery of the Securities may be made by credit through
full fast transfer to the accounts at The Depository Trust Company designated by
the Initial Purchasers. The 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 and the Trustee, 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.
(a) It is understood that each Initial Purchaser, may (but shall
not be obligated to) make payment to the Company on behalf of the other Initial
Purchaser for the Securities to be purchased by such Initial Purchaser. Any
such payment by you shall not relieve such other Initial Purchaser of any of its
obligations hereunder. Nothing herein contained shall constitute any of the
Initial Purchasers an unincorporated association or partner with the Company.
(a) The Initial Purchasers have advised the Company that the
Initial Purchasers propose to offer the Securities for resale upon the terms and
conditions set forth in this Agreement and in the Offering Memorandum. Each of
the Initial Purchasers hereby represents and warrants to, and agrees with, the
Company that it (i) has and will not solicit offers for, or offer or sell, such
Securities by means of any form of general solicitation or general advertising
(as those terms are used in Regulation D) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act, (ii) will
solicit offers for such Securities pursuant to Rule 144A promulgated by the
Commission under the Securities Act, as such rule may be amended from time to
time ("Rule 144A"), or resales not involving a public offering, as applicable,
only from, and will offer, sell or deliver such Securities, as part of its
disposition thereof, only to, respectively (A) persons in the United States whom
they reasonably believe to be qualified institutional buyers ("Qualified
Institutional Buyers") as defined in Rule 144A and (B) to institutional
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D); provided, however, that each such "accredited investor" must
complete and deliver to such Initial Purchaser an investment letter
substantially in the form of Exhibit B hereto prior to acceptance of any order,
(iii) is a Qualified Institutional Buyer, with such knowledge and experience in
financial and business matters as are necessary in order to evaluate the merits
and risks of
an investment in the Securities, and (iv) will, during its initial disposition
of the Securities, unless prohibited by applicable law, furnish to each person
to whom it offers any Securities a copy of the Preliminary Offering Memorandum
and will, during its initial disposition of the Securities furnish to each
person to whom it sells any Securities a copy of the Offering Memorandum.
1. COVENANTS.
(a) The Company covenants and agrees with the Initial Purchasers
as follows:
(i) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceeding for any such purpose.
(i) At any time prior to the completion of the disposition
of the Securities by the Initial Purchasers, the Company will advise you
promptly and, if requested by you, confirm such advice in writing, of the
happening of any event that makes any statement of a material fact made in
the Offering Memorandum (as amended or supplemented from time to time)
untrue or which requires the making of any additions to or changes in the
Offering Memorandum (as amended or supplemented from time to time) in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading. If, during the period specified in the
first sentence of this paragraph, any event shall occur as a result of
which it is necessary, in the reasonable judgment of the Initial
Purchasers, to amend or supplement the Offering Memorandum in order to make
the Offering Memorandum not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, the Company will
forthwith amend or supplement the Offering Memorandum (in form and
substance reasonably satisfactory to the Initial Purchaser) so that, as so
amended or supplemented, the Offering Memorandum will not include an untrue
statement of material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to the purchaser, not misleading, and
the Company will furnish to the Initial Purchasers copies of such amendment
or supplement in an amount reasonably requested by the Initial Purchasers.
(i) At any time prior to completion of the disposition of
the Securities by the Initial Purchasers, the Company and each of its
Subsidiaries will, as required, file promptly all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(i) The Company will not solicit any offer to buy or offer
or sell the Securities by means of any form of general solicitation or
general advertising.
(i) Neither the Company nor any affiliate (as defined in
Rule 501(b) of Regulation D) will offer, sell or solicit offers to buy or
otherwise negotiate in respect of any security
(as defined in the Securities Act) which will be integrated with the sale
of the Securities in a manner that would require the registration of the
Securities under the Securities Act.
(i) During the period from the Closing Date to two years
after the Closing Date, neither the Company, nor its Subsidiaries will, and
will not permit any "affiliate" (as defined in Rule 144 under the
Securities Act) of any of them to, resell any of the Securities that have
been reacquired by them, except for Securities purchased by the Company, or
any of its respective affiliates and resold in a transaction registered
under the Securities Act.
(i) The Company will, so long as the Securities are
outstanding and any Securities are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, either (i) timely file
reports and other information with the Commission under Section 13 or 15(d)
of the Exchange Act, or (ii) in the event it is not subject to Section 13
or 15(d) of the Exchange Act, make available to holders of the Securities
and prospective purchasers of the Securities designated by such holders,
upon request of such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act to permit
compliance with Rule 144A in connection with resales of the Securities.
(i) Each of the Securities will bear the legend contained
in "Notice to Investors" in the Offering Memorandum, except after such
Securities are resold or exchanged pursuant to a registration statement
effective under the Securities Act.
(i) The Company shall apply the net proceeds of its sale of
the Securities as set forth in the Offering Memorandum.
(i) The Company shall not invest, or otherwise use the
proceeds received from the sale of the Securities in such a manner as would
require the Company or any of the Subsidiaries to register as an investment
company under the 1940 Act or the rules and regulations thereunder.
(i) The Company will use its reasonable best efforts to do
and perform all things required to be done and performed under this
Agreement by it prior to or after the Closing Date and to satisfy all
conditions precedent on its part to the delivery of the Securities.
(i) During the period beginning on the date of this
Agreement and continuing to and including the Closing Date, except as
described in the Offering Memorandum, there will be no transactions entered
into by the Company which are material with respect to the Company and the
Subsidiaries taken as a whole, and during such period there will be no
dividend or distribution of any kind declared, paid or made by the Company
on any class of capital stock or other equity interests except pursuant to
any employee stock option plan, stock ownership plan or dividend
reinvestment plan of the Company described in the Offering Memorandum and
in effect on the date hereof, and issuable upon the conversion of
securities or the exercise of warrants outstanding on the date hereof and
described in the Offering Memorandum.
(i) The Company will use its best efforts to qualify the
Securities for sale, or secure any necessary exemptions, under the
securities laws of such jurisdictions as you reasonably designate and to
continue such qualifications in effect so long as required for the
distribution of the Securities, except that the Company 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.
(i) The Company will furnish to the Initial Purchasers the
Offering Memorandum, and all amendments and supplements to such document,
in each case as soon as available and in such quantities as you may from
time to time reasonably request.
(i) During a period of five years commencing with the date
hereof, the Company will furnish to the Initial Purchasers, copies of all
periodic and special reports furnished to the stockholders of the Company
and all information, documents and reports filed with the Commission, the
National Association of Securities Dealers, Inc., NASDAQ or any securities
exchange.
(i) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is terminated,
will pay or cause to be paid (A) all expenses (including transfer taxes
allocated to the respective transferees) incurred in connection with the
delivery to the Initial Purchasers of the Securities, (B) all expenses and
fees (including, without limitation, fees and expenses of the Company's
accountants and counsel and the fees and expenses of the Initial
Purchasers' counsel) in connection with the preparation, printing,
distribution, delivery, and shipping of each Memoranda (including financial
statements and exhibits) and any amendment thereof or supplement thereto,
and the printing, delivery, and shipping of this Agreement, the Indenture,
the Registration Rights Agreement and other documents, including Blue Sky
Memoranda, printed, distributed and delivered in connection with the
offering and sale of the Securities, (C) all filing fees and fees and
disbursements of the Initial Purchasers' counsel incurred in connection
with the qualification of the Securities for offering and sale by the
Initial Purchasers 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 fees relating to
the rating of the Securities by one or more rating agencies, (F) the fees
and expenses of the Trustee and any of its agents and the fees and
disbursements of counsel for the Trustee in connection with the Indenture
and the Securities and (G) the performance by the Company of its other
obligations under this Agreement, including (without limitation) the cost
of printing and engraving the certificates representing the Securities and
all expenses and taxes incident to the sale and delivery of the Securities
to you and (H) all other costs and expenses incident to the performance of
its obligations hereunder that are not otherwise specifically provided for
herein. If the sale of the Securities provided for herein is not
consummated by reason of action by the Company pursuant to Section 9(a)
hereof which prevents this Agreement from becoming effective, or by reason
of any failure, refusal or inability on the part of the Company to perform
any agreement on its part to be performed, or because any other condition
of the Initial Purchasers' obligations hereunder required to be fulfilled
by the Company is not fulfilled, the Company will reimburse the Initial
Purchasers for all out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Initial Purchasers in connection
with their investigation, preparing to market and marketing the Securities
or in contemplation of
performing their obligations hereunder. The Company shall not in any event
be liable to any of the Initial Purchasers for loss of anticipated profits
from the transactions covered by this Agreement.
(i) The Company will not amend or supplement the Memoranda,
other than by filing documents under the Exchange Act which are
incorporated by reference therein, without the prior written consent of the
Initial Purchasers; provided, however, that, prior to the completion of the
disposition of the Securities by the Initial Purchasers (as determined by
the Initial Purchasers), the Company will not file any document under the
Exchange Act which is incorporated by reference in the Offering Memorandum
unless, prior to such proposed filing, the Company has furnished the
Initial Purchasers with a copy of such document for their review and the
Initial Purchasers have not reasonably objected to the filing of such
document. The Company will promptly advise the Initial Purchasers when any
document filed under the Exchange Act which is incorporated by reference in
the Offering Memorandum shall have been filed with the Commission.
(i) The Company will cooperate with the Initial Purchasers
and use its best efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(i) In connection with any disposition of Securities
pursuant to a transaction made in compliance with applicable State
securities laws and (i) satisfying the requirements of Rule 144(k) under
the Securities Act, (ii) satisfying the requirements of Rule 904 of
Regulation S, (iii) made pursuant to an effective registration statement
under the Securities Act or (iv) disposed of in any other transaction that
does not require registration under the Securities Act (and the Company has
received an opinion of counsel or other documentation satisfactory to it to
such effect), the Company will reissue certificates evidencing such
Securities without the legend set forth under the heading "Notice to
Investors" in the Offering Memorandum (provided, in the case of a
transaction specified in clause (iv) above, that the legal opinion referred
to therein so permits).
1. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations of
the Initial Purchasers hereunder are subject to the accuracy, as of the date
hereof and at the Closing Date (as if made at such Closing Date), of and
compliance with all representations, warranties and agreements of the Company
contained herein, to the performance by the Company of its respective
obligations hereunder and to the following additional conditions:
No Initial Purchaser shall have advised the Company that the Memoranda
or any amendment thereof or supplement thereto 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.
(a) Except as contemplated in the Offering Memorandum,
subsequent to the respective dates as of which information is given in the
Offering Memorandum, neither 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, that, in your judgment, makes it impractical or
inadvisable to offer or deliver the Securities on the terms and in the manner
contemplated in the Offering Memorandum.
On the Closing Date, there shall have been furnished to the
Initial Purchasers, the opinion of Xxxxxxxxx & Xxxxxx P.L.L.P., counsel for the
Company, dated the Closing Date and addressed to you, 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 Offering Memorandum, 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 result in a Material Adverse Change. 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
(i) The statements in the Offering Memorandum under the
captions "Recent Developments", "Description of Notes", "Exchange Offer;
Registration Rights", and Notice to Investors" insofar as such statements
constitute matters of law applicable to the Company 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 Offering Memorandum, 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 offering or sale of the 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.
(i) 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
Offering Memorandum 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 Offering Memorandum, there
are no options, warrants, agreements, contracts or other rights in
existence to purchase or acquire from the Company or any of its
Subsidiaries any shares of the capital stock of any Subsidiary of the
Company.
(i) The Securities are in the form contemplated by the
Indenture, have been duly authorized, executed and delivered by the Company
and, when authenticated by the Trustee in the manner provided for in the
Indenture and delivered against payment therefor, will constitute valid and
binding obligations of the Company, entitled to the benefits of the
Indenture, and 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.
(i) The Securities are subordinate and junior in right of
payment to all "Senior Indebtedness" (as defined in the Indenture) of the
Company.
(i) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the 1940 Act.
(i) To the best of such counsel's knowledge, no stop order
suspending the qualification of the Securities for offering or sale in any
jurisdiction has been instituted or threatened by the Commission.
(i) To such counsel's knowledge, there are no legal or
governmental proceedings or rulings, pending or threatened, to which the
Company is a party or to which any of its respective property is subject
which, if determined adversely, would reasonably be expected to result in a
Material Adverse Change or adversely affect the performance by the Company
of its obligations pursuant to this Agreement.
(i) The reports of the Company incorporated by reference in
the Offering Memorandum, 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.
(i) The Company has full corporate power and authority to
enter into this Agreement, the Indenture, and the Registration Rights
Agreement and to issue the Securities and to effect the transactions
contemplated by this Agreement, the Indenture and the Registration Rights
Agreement and each of this Agreement, the Indenture and the Registration
Rights Agreement is duly
authorized, executed and delivered by the Company and constitutes a valid,
legal and binding obligation of the Company enforceable in accordance with
its terms (except as rights to indemnity hereunder and under the
Registration Rights Agreement 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
Registration Rights Agreement and the issuance, offer and sale of
Securities 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 is a party or by which it is bound or to which any of its property
is subject, the Company's charter or bylaws, or any other order or decree
known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its respective properties, except
for any breach, violation or default which would not result in a Material
Adverse Change; 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
Registration Rights Agreement or for the consummation of the transactions
contemplated hereby or thereby, including the issuance or sale of the
Securities, except (a) under the Securities Act, state securities or blue
sky laws, (b) the regulations of the NASD with respect to the Registration
Rights Agreement, and (c) the qualification of the Indenture under the
Trust Indenture Act of 1939, as amended, and the regulations thereunder.
(i) Assuming (A) the accuracy of, and compliance with, the
representations, warranties and covenants of the Company in this Agreement,
(B) the accuracy of, and compliance with, the representations, warranties
and covenants of the Initial Purchasers in Section 3 of this Agreement, (C)
the accuracy of the representations and warranties of each of the
purchasers to whom the Initial Purchasers initially resell the Securities
as specified in Section 3 of this Agreement, (D) the compliance by the
Initial Purchasers with the offering and transfer procedures and
restrictions described in the Offering Memorandum and (E) receipt by the
purchasers to whom the Initial Purchaser initially resells the Securities
of a copy of the Offering Memorandum prior to such sale, and (F) the
execution by each institutional accredited investor purchasing securities
from the Initial Purchasers of the investment letter described in Section
3(c), it is not necessary in connection with the offer, sale and delivery
of the Securities or in connection with the initial resale of such
Securities in the manner contemplated by this Agreement and the Offering
Memorandum to register the Securities under the Securities Act, it being
understood that no opinion is expressed as to any subsequent resale of any
Securities.
(i) The Offering Memorandum and any amendment thereof or
supplement thereto, comply as to form in all material respects with the
applicable requirements of the Securities Act and the Rules and
Regulations; and on the basis of conferences with officers of the Company,
examination of documents referred to in the Offering Memorandum 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
Offering Memorandum (as of the date thereof 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 the Offering Memorandum.
(i) The Company has full corporate power and authority to
enter into the Stock Purchase Agreement and to perform all of its
obligations under the Stock Purchase Agreement, and the Stock Purchase
Agreement has been duly authorized, executed and delivered by the Company
and constitutes a valid, legal and binding obligation of the Company
enforceable against the Company in accordance with its terms (except as
such enforceability may be limited by supervisory powers of bank regulatory
agencies and 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 the Stock
Purchase Agreement and the consummation of the transactions 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 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 any order or
decree known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its respective properties,
the result of which individually or in the aggregate would prevent the
Company from performing its obligations under the Stock Purchase Agreement;
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 the Stock Purchase Agreement or for the
consummation of the transactions contemplated thereby, except such
regulatory approvals contemplated by the Stock Purchase Agreement, each of
which has been obtained.
(xiv) To the best of such counsel's knowledge, there is no
pending or threatened action or proceeding to which the Company is a party
or to which any property of the Company or any Subsidiary is subject, which
action or proceeding arises out of or relates to the Stock Purchase
Agreement.
(xv) Such other matters as you may reasonably request.
In rendering such opinion such counsel may rely (i) as to matters of law
other than Delaware, 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 provided that the extent of such reliance is specified in such
opinion.
(a) On the Closing Date, there shall have been furnished to you,
such opinion or opinions from Faegre & Xxxxxx LLP, counsel for the Initial
Purchasers, dated the Closing Date and addressed to you, with respect to the
formation of the Company, the validity of the Securities, the Memoranda and
other related matters as you reasonably may request, and such counsel shall have
received such papers and information as they request to enable them to pass upon
such matters.
(a) On the Closing Date you shall have received a letter from
Ernst & Young LLP, dated the Closing Date and addressed to the Initial
Purchasers, confirming that they are independent public accountants within the
meaning of the Securities 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, 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, or incorporated by reference, in
the Offering Memorandum, as of a date not more than five days prior to the date
of such letter), the conclusions and findings of said firm with respect to the
financial information and other matters covered by its letter delivered to the
Initial Purchasers 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.
(a) The Securities, the Indenture and the Registration Rights
Agreement shall have been executed and delivered by the Company.
(a) Prior to the Closing Date there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Securities Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(a) On the Closing Date, there shall have been furnished to the
Initial Purchasers, a certificate, dated such 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 such Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date;
(i) No stop order or other order suspending the
qualification of the 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
(i) The signers of said certificate have carefully examined
the Memoranda, and any amendments thereof or supplements thereto, and (A)
such documents contain all statements and information required to be
included therein and do 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 date of the Offering Memorandum, there has occurred no event
required to be set forth in an amended or supplemented offering memorandum
which has not been so set forth, (C) subsequent to the date as of which
information is given in the Offering Memorandum, 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, and except as disclosed in the Offering Memorandum, 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, and (D) except as stated in the Offering
Memorandum, there is not pending, or, to the knowledge of the Company,
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.
(a) The Company shall have furnished to you and counsel for the
Initial Purchasers 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 counsel for the Initial Purchasers. The Company will
furnish you with such conformed copies of such opinions, certificates, letters
and other documents as you shall reasonably request.
1. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser against any losses, claims, damages or liabilities, joint or
several, to which such Initial Purchaser may become subject, under the
Securities 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 any of the Memoranda, or any amendment or supplement
thereto, 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 Initial Purchaser
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 Company 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 any of the Memoranda, or any amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by you specifically for use in the preparation thereof.
In addition to their other obligations under this Section 6(a), the
Company agrees 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 each Initial Purchaser 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 Company's obligation to reimburse the
Initial Purchasers 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, the Initial Purchaser that received such payment 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 an Initial Purchaser 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.
(a) Each Initial Purchaser will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Securities Act or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Initial Purchaser), 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 any
Memoranda, or any amendment or supplement thereto, 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 any of
the Memoranda, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by you an Initial
Purchaser, specifically for use in the preparation thereof, and will reimburse
the Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending against any such loss, claim,
damage, liability or action.
(a) 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 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 Initial Purchasers, it is advisable for the
Initial Purchasers to be represented as a group by separate counsel, the Initial
Purchaser shall have the right to employ a single counsel to represent the
Initial Purchasers who may be subject to liability arising from any claim in
respect of which indemnity may be sought by the Initial Purchasers under
subsection (a) of 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 reimbursed to the Initial Purchasers as 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.
(a) 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 on the one hand and the Initial Purchasers on the other from the
offering of the 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 on the one hand and the Initial
Purchasers 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 on the one hand and the Initial Purchasers 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 discounts and
commissions received by the Initial Purchasers, in each case as set forth in the
table on the cover page of the Offering Memorandum. 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 or the Initial
Purchasers and the parties' relevant intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Initial Purchasers agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were to be determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the first sentence of this
subsection (d). 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 (d) 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 (d).
Notwithstanding the provisions of this subsection (d), no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased by it and resold to subsequent
purchasers as described in the Offering Memorandum exceeds the amount of any
damages that such Initial Purchaser 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations hereunder and not joint.
(a) The obligations of the Company under this Section 6 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Initial Purchaser within the meaning of the Securities Act; and the
obligations of the Initial Purchasers under this Section 6 shall be in addition
to any liability that the respective Initial Purchasers may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company (including any person who, with his consent, is named in the Offering
Memorandum as about to become a director of the Company), to the chief executive
officer and chief financial officer of the Company and to each person, if any,
who controls the Company within the meaning of the Securities Act.
1. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Initial Purchasers and the Company contained in Section 6 hereof, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Initial Purchaser or any controlling person thereof, or the
Company or any of its officers, directors, or controlling persons, and shall
survive delivery of, and payment for, the Securities to and by the Initial
Purchasers hereunder.
1. SUBSTITUTION OF INITIAL PURCHASERS.
(a) If any Initial Purchaser shall fail to take up and
pay for the amount of Securities agreed by such Initial Purchaser to be
purchased hereunder, upon tender of such Securities in accordance with the
terms hereof, and the aggregate principal amount of Securities not purchased
does not aggregate more than 10% of the aggregate principal amount of
Securities, the remaining Initial Purchaser shall be obligated to take up and
pay for the Securities that the withdrawing or defaulting Initial Purchaser
agreed but failed to purchase.
(a) If any Initial Purchaser shall fail to take up and pay
for the principal amount of Securities agreed by such Initial Purchaser to be
purchased hereunder, upon tender of such Securities in accordance with the terms
hereof, and the principal amount of Securities not purchased aggregates more
than 10% of the aggregate principal amount of Securities, and arrangements
satisfactory to you for the purchase of such Securities by other persons are not
made within 36 hours thereafter, this Agreement shall terminate. In the event
of any such termination the Company shall not be under any liability to either
Initial Purchaser (except to the extent provided in Section 4(a)(xvi) and
Section 6 hereof) nor shall either Initial Purchaser (other than the Initial
Purchaser who shall have failed, otherwise than for some reason permitted under
this Agreement, to purchase the amount of Securities agreed by such Initial
Purchaser to be purchased hereunder) be under any liability to the Company
(except to the extent provided in Section 6 hereof).
If Securities to which a default relates are to be purchased by the
non-defaulting Initial Purchaser or by any other party or parties, the
non-defaulting Initial Purchaser or the Company shall have the right to postpone
the Closing Date for not more than seven business days in order that the
necessary changes in the Offering Memorandum and any other documents, as well as
any other arrangements, may be effected. As used herein, the term "Initial
Purchaser" includes any person substituted for an Initial Purchaser under this
Section 8.
1. 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 date hereof. By
giving notice as hereinafter specified before the time this Agreement becomes
effective the Initial Purchaser, 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)(xvi) and Section 6 hereof shall at all times
be effective.
(a) You 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) the Company shall have failed, refused or been unable, at or prior
to such Closing Date, to perform any agreement on its part to be
performed hereunder, (ii) any other condition of the Initial Purchasers'
obligations hereunder is not fulfilled, (iii) trading on the New York Stock
Exchange or the American Stock Exchange shall have been wholly suspended, (iv)
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the New York Stock
Exchange, the American Stock Exchange or Nasdaq Stock Market, by such Exchange
or by order of the Commission or any other governmental authority having
jurisdiction, (v) a banking moratorium shall have been declared by Federal, New
York, Minnesota, North Dakota or South Dakota authorities, or (vi) 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 Securities. Any such termination
shall be without liability of any party to any other party except that the
provisions of Section 4(a)(xvi) and Section 6 hereof shall at all times be
effective.
(a) If you 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 you by telephone or telegram, confirmed
by letter. If the Company elects to prevent this Agreement from becoming
effective, you shall be notified by the Company by telephone or telegram,
confirmed by letter.
1. INFORMATION FURNISHED BY INITIAL PURCHASERS. The statements set
forth in the last paragraph of the cover page and under the caption "Plan of
Distribution" in any Memoranda constitute the written information furnished by
or on behalf of the Initial Purchasers referred to in Section 2 and Section 6
hereof.
1. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Initial Purchasers,
shall be mailed, telegraphed or delivered to the Initial Purchasers c/o Xxxxx
Xxxxxxx Inc., Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, except that notices given to an Initial Purchaser pursuant to
Section 6 hereof shall be sent to such Initial Purchaser at the address stated
in the Initial Purchasers' Questionnaire furnished by such Initial Purchaser in
connection with this offering; 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, or in each case to such other address as the
person to be notified may have requested in writing. All notices given by
telegram shall be promptly confirmed by letter. Any party to this Agreement may
change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose.
1. 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 Securities from any of
the Initial Purchasers.
1. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
[Signature Page Follows]
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 the Initial Purchasers in accordance with its terms.
Very truly yours,
COMMUNITY FIRST BANKSHARES, INC.
By /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Confirmed as of the date first
above mentioned, on behalf of
themselves and the other several
Initial Purchasers named in Schedule I
hereto.
XXXXX XXXXXXX INC.
By /s/ Xxxxx Xxxxxx Xxxxxxxx
--------------------------------------
Managing Director
XXXXX, XXXXXXXX & XXXXX, INC.
By /s/ Xxxxx X. Xxxxx
--------------------------------------
Senior Vice President
M1:0257354.05
SCHEDULE I
Initial Purchasers Principal Amount of Purchased Notes
Xxxxx Xxxxxxx Inc. $36,000,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc. $24,000,000
-----------
Total. . . . . . . . . . . . . . . . . . . . . . . . .$60,000,000
-----------
-----------
