____ SHARES(1)
COMMUNITY FIRST BANKSHARES, INC.
COMMON STOCK
PURCHASE AGREEMENT
____________ , 199__
Ladies and Gentlemen:
Community First Bankshares, Inc., a Delaware corporation (the "Company")
proposes to sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of ____________ shares (the "Firm Shares") of
Common Stock, $.01 par value per share (the "Common Stock"), of the Company.
The Company has also granted to the Underwriters an option to purchase up to
__________ additional shares of Common Stock on the terms and for the
purposes set forth in Section 3 hereof (the "Option Shares"). The Firm
Shares and any Option Shares purchased pursuant to this Purchase Agreement
are herein collectively called the "Securities."
The Company hereby confirms its agreement with respect to the sale of the
Securities to the Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. A registration statement
on Form S-3 (File No. 333-37527) with respect to the Securities, including a
preliminary form of prospectus, has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended
(the "Act"), and the rules and regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission; one or more amendments to such registration
statement have also been so prepared and have been, or will be, so filed;
and, if the Company has elected to rely upon Rule 462(b) of the Rules and
Regulations to increase the size of the offering registered under the Act,
the Company will prepare and file with the Commission a registration
statement with respect to such increase pursuant to Rule 462(b). Copies of
such registration statement(s) and amendments and each related preliminary
prospectus have been delivered to you.
(a) If the Company has elected not to rely upon Rule 430A of the
Rules and Regulations, the Company has prepared and will promptly file an
amendment to the registration statement and an amended prospectus (including
a term sheet, if any, meeting the requirements of Rule 434 of the
---------------
(1) Plus an option to purchase up to _______ additional shares to cover
over-allotments.
Rules and Regulations) if necessary to complete the Prospectus. If the
Company has elected to rely upon Rule 430A of the Rules and Regulations, it
will prepare and file a prospectus (or a term sheet meeting the requirements
of Rule 434) pursuant to Rule 424(b) that discloses the information
previously omitted from the prospectus in reliance upon Rule 430A. If the
Company has elected to rely upon the requirements of Rule 424(b)(2) or Rule
424(b)(5) of the Rules and Regulations, it will promptly prepare and file a
supplemented prospectus pursuant to such rule. Such registration statement
as amended at the time it is or was declared effective by the Commission,
and, in the event of any amendment thereto after the effective date and prior
to the First Closing Date (as hereinafter defined), such registration
statement as so amended (but only from and after the effectiveness of such
amendment), including a registration statement (if any) filed pursuant to
Rule 462(b) of the Rules and Regulations increasing the size of the offering
registered under the Act, all documents incorporated or deemed to be
incorporated by reference therein, and information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rules
430A(b) and 434(d) of the Rules and Regulations, is hereinafter called the
"Registration Statement." The prospectus included in the Registration
Statement at the time it is or was declared effective by the Commission is
hereinafter called the "Prospectus," except that if any prospectus (including
any term sheet meeting the requirements of Rule 434 of the Rules and
Regulations provided by the Company for use with a prospectus subject to
completion within the meaning of Rule 434 in order to meet the requirements
of Section 10(a) of the Rules and Regulations) filed by the Company with the
Commission pursuant to Rule 424(b) (and Rule 434, if applicable) of the Rules
and Regulations or any other such prospectus provided to the Underwriters by
the Company for use in connection with the offering of the Securities
(whether or not required to be filed by the Company with the Commission
pursuant to Rule 424(b) of the Rules and Regulations) differs from the
prospectus on file at the time the Registration Statement is or was declared
effective by the Commission, the term "Prospectus" shall refer to such
differing prospectus (including any term sheet within the meaning of Rule 434
of the Rules and Regulations) from and after the time such prospectus is
filed with the Commission or transmitted to the Commission for filing
pursuant to such Rule 424(b) (and Rule 434, if applicable) or from and after
the time it is first provided to the Underwriters by the Company for such use
and except that in connection with a Registration Statement filed pursuant to
Rule 415 of the Rules and Regulations the term "Prospectus" shall mean the
supplemented prospectus. The term "Preliminary Prospectus" as used herein
means any preliminary prospectus included in the Registration Statement prior
to the time it becomes or became effective under the Act, any preliminary
prospectus supplement used in connection with a Registration Statement filed
pursuant to Rule 415 of the Rules and Regulations and any prospectus subject
to completion as described in Rule 430A or 434 of the Rules and Regulations.
All references in this Agreement to the Registration Statement, a Preliminary
Prospectus or the Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval System. All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such financial statements and schedules and
other information which is or is deemed to be incorporated by reference in
the Registration Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "Exchange Act")
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
2
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company represents and warrants to, and agrees with, the
Underwriters as follows:
(i) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission and the Preliminary
Prospectus, at the time of filing thereof, did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; except
that the foregoing shall not apply to statements in or omissions from the
Preliminary Prospectus in reliance upon, and in conformity with, written
information furnished to the Company by either Underwriter for use in the
preparation thereof.
(ii) As of the time the Registration Statement (or any
post-effective amendment thereto, including a registration statement (if
any) filed pursuant to Rule 462(b) of the Rules and Regulations increasing
the size of the offering registered under the Act) is or was declared
effective by the Commission, upon the filing or first delivery to the
Underwriters of the Prospectus (or any supplement to the Prospectus
(including any term sheet meeting the requirements of Rule 434 of the
Rules and Regulations)) and at the First Closing Date and Second Closing
Date (as hereinafter defined), (A) the Registration Statement and
Prospectus (in each case, as so amended and/or supplemented) conformed or
will conform in all material respects to the requirements of the Act and
the Rules and Regulations, (B) the Registration Statement (as so amended)
did not or will not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and (C) the Prospectus (as so
supplemented) did not or will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they are or were made, not misleading; except that the foregoing
shall not apply to statements in or omissions from any such document in
reliance upon, and in conformity with, written information furnished to the
Company by any Underwriter specifically for use in the preparation thereof.
If the Registration Statement has been declared effective by the
Commission, no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
initiated or, to the Company's knowledge, threatened by the Commission.
(iii) The documents of the Company incorporated by reference in
the Registration Statement and the Prospectus, when they were filed with
the Commission conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement and the Prospectus or any
further amendment or supplement thereto, when such documents are filed
with the Commission will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
3
(iv) The consolidated financial statements of the Company,
together with the notes thereto, incorporated by reference in the
Registration Statement, Preliminary Prospectus and Prospectus comply in
all material respects with the requirements of the Act and the Exchange
Act and fairly present the consolidated financial condition of the
Company and its consolidated subsidiaries as of the dates indicated and
the results of operations and changes in cash flows for the periods
therein specified in conformity with generally accepted accounting
principles consistently applied throughout the periods involved (except
as otherwise stated in the Registration Statement and Prospectus) and
the independent public accountants whose reports are contained therein
are independent public accountants as required by the Act and the Rules
and Regulations. The summary financial information included in the
Preliminary Prospectus and Prospectus under the caption "Summary
Consolidated Financial Data," present fairly the information required to
be stated therein.
(v) No other financial statements or schedules are required
to be included in the Registration Statement or Prospectus.
(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 (each a "Subsidiary" and collectively
the "Subsidiaries") and the percentage of issued and outstanding shares
of stock of each such Subsidiary owned of record and beneficially by the
Company are set forth in Exhibit A attached hereto. Each Subsidiary has
been duly organized and is validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization as the
case may be. Each of the Company and its Subsidiaries has full
corporate power and authority to own its properties and conduct its
business as currently being carried on and as described in the
Registration Statement and Prospectus, and is duly qualified to do
business as a foreign corporation in good standing under the corporation
and financial services laws of each jurisdiction in which the conduct of
its business or ownership or lease of its properties requires such
qualification and where the failure to be so qualified would,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects,
assets, results of operations or properties of the Company and its
Subsidiaries taken as a whole. Other than the foregoing Subsidiaries,
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) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the 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
4
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 Company and its Subsidiaries, taken as a whole.
(viii) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Company, threatened or contemplated,
any action, suit or proceeding to which the Company or any of its
Subsidiaries is a party before or by any court or governmental agency,
authority or body, or any arbitrator, which might result in any material
adverse change in the condition (financial or otherwise), business,
prospects, net worth or results of operations of the Company and its
Subsidiaries, taken as a whole.
(ix) There are no contracts or documents of the Company or any
of its Subsidiaries that are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations which
contracts or documents have not been so filed.
(x) This 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 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 and
the consummation of the transactions herein 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 bylaws, 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 or for the consummation of the
transactions contemplated hereby, including the issuance or sale of the
Securities by the Company, except such as may be required under the Act
or state securities or blue sky laws; and the Company has full power and
authority to enter into this 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;
the Securities which may be sold hereunder by the Company have been duly
authorized and, when issued, delivered and paid for in accordance with
the terms hereof, will have been validly issued and will be fully paid
and nonassessable, and the holders thereof will not be subject to
personal liability by reason of being such holders; and the capital
stock of the Company, including the Common Stock, conforms to the
description thereof in the Registration Statement and Prospectus.
Except as otherwise stated in the Registration Statement and Prospectus,
there are no preemptive rights or other rights to subscribe for or to
purchase, or any restriction upon the voting
5
or transfer of, any shares of Common Stock pursuant to the Company's
charter, bylaws or any agreement or other instrument to which the Company
is a party or by which the Company is bound. Neither the filing of the
Registration Statement nor 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. All of the issued and outstanding shares of capital stock of
each of the Company's Subsidiaries have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as
otherwise described in the Registration Statement and Prospectus and
except for any directors' qualifying shares, the Company owns of record
and beneficially, free and clear of any security interests, claims,
liens, proxies, equities or other encumbrances, all of the issued and
outstanding shares of such stock. Except as described in the
Registration Statement and the Prospectus, there are no options,
warrants, agreements, contracts or other rights in existence to purchase
or acquire from the Company or any Subsidiary of the Company any shares
of the capital stock of the Company or any Subsidiary of the Company.
The Company has an authorized and outstanding capitalization as set
forth in the Registration Statement and the Prospectus.
(xii) The Company and each of its Subsidiaries holds, and is
operating in compliance in all material respects with, all franchises,
grants, authorizations, licenses, permits, easements, consents,
certificates and orders of any governmental or self-regulatory body
required for the conduct of its business and all such franchises,
grants, authorizations, licenses, permits, easements, consents,
certifications and orders are valid and in full force and effect; and
the 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 except to the extent that the
failure to comply would not have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects,
assets, results of operations or properties of the Company and its
Subsidiaries taken as whole.
(xiii) The Company and its Subsidiaries have good title to all
property and good and marketable title to all real property described in
the Registration Statement and Prospectus as being owned by them, in
each case free and clear of all liens, claims, security interests or
other encumbrances except such as are described in the Registration
Statement and the Prospectus or which do not interfere in any material
respect with the use of the property or the conduct of the business of
the Company and its Subsidiaries; the property held under lease by the
Company and its Subsidiaries is held by them under valid, subsisting and
enforceable leases with only such exceptions with respect to any
particular lease as do not interfere in any material respect with the
conduct of the business of the Company or its Subsidiaries; the Company
and each of its Subsidiaries owns or possesses all patents, patent
applications, trademarks, service marks, tradenames, trademark
registrations, service xxxx registrations, copyrights, licenses,
inventions, trade secrets and rights necessary for the conduct of the
business of the Company and its Subsidiaries as currently carried on and
as described in the Registration Statement and Prospectus; except as
stated in the Registration Statement and Prospectus, to the best of the
Company's knowledge, no name which the Company or any of its
Subsidiaries uses and no other aspect of the business of the Company or
any of its Subsidiaries will involve or give rise to any infringement
of, or license or similar fees for, any patents, patent applications,
trademarks, service marks, tradenames, trademark registrations, service
xxxx registrations, copyrights, licenses, inventions, trade secrets or
other similar rights of others material to the business or prospects of
the Company and neither the Company nor any of its Subsidiaries has
received any notice alleging any such infringement or fee.
6
(xiv) Neither the Company nor any of its Subsidiaries is in
violation of its respective charter or bylaws; none of the Company or
any of its Subsidiaries 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 or any of its Subsidiaries is subject.
(xv) The Company and its Subsidiaries have filed all federal,
state, local and foreign income and franchise tax returns required to be
filed and are not in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect
thereto, other than any which the Company or any of its Subsidiaries is
contesting in good faith.
(xvi) 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 any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by
the Company.
(xvii) The Common Stock (including the Securities) is
registered pursuant to Section 12(g) of the Exchange Act and is listed on
the Nasdaq National Market, and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act or delisting the Common Stock from
the Nasdaq National Market, nor has the Company received any
notification that the Commission or the National Association of
Securities Dealers, Inc. is contemplating terminating such registration
or listing. The Company has filed an application to list the Securities
on the NASDAQ National Market System and has paid the required fee in
connection therewith.
(xviii) The Company and each of its Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(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.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
7
3. 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 _________ Firm Shares to the
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company and the Selling Stockholders the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule II hereto.
The purchase price for each Firm Share shall be $_____ per share. In making
this Agreement, each Underwriter is contracting severally and not jointly;
except as provided in paragraph (c) of this Section 3 and in Section 8
hereof, the agreement of each Underwriter is to purchase only the respective
number of Firm Shares specified in Schedule II.
The Firm Shares will be delivered by the Company to the Underwriters
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 (or if the Securities are priced, as contemplated by Rule 15c6-1(c)
under the Exchange Act, after 4:30 p.m. Eastern time, on the fourth) full
business day following the date hereof, or at such other time and date as you
and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act,
such time and date of delivery being herein referred to as the "First Closing
Date." If the Underwriters so elect, delivery of the Firm Shares may be made
by credit through full fast transfer to the accounts at The Depository Trust
Company designated by the Underwriters. Certificates representing the Firm
Shares, 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 Custodian, will be made available for checking and packaging
not later than 10:30 a.m., Central time, on the business day next preceding
the First Closing Date at the offices of Xxxxx Xxxxxxx Inc., Xxxxx Xxxxxxx
Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location
as may be mutually acceptable.
(b) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Company hereby grants to the Underwriters an option to purchase all or
any portion of the Option Shares at the same purchase price as the Firm
Shares, for use solely in covering any over-allotments made by the
Underwriters in the sale and distribution of the Firm Shares. The option
granted hereunder may be exercised at any time (but not more than once)
within 30 days after the effective date of this Agreement upon notice
(confirmed in writing) by the Underwriters to the Company setting forth the
aggregate number of Option Shares as to which the Underwriters are exercising
the option, the names and denominations in which the certificates for the
Option Shares are to be registered and the date and time, as determined by
you, when the Option Shares are to be delivered, such time and date being
herein referred to as the "Second Closing" and "Second Closing Date",
respectively; provided, however, that the Second Closing Date shall not be
earlier than the First Closing Date nor earlier than the second business day
after the date on which the option shall have been exercised. If the option
is exercised, the number of Option Shares to be purchased by each Underwriter
shall be the same percentage of the total number of Option Shares to be
purchased by the Underwriters as the number of Firm Shares to be purchased by
such Underwriter is of the total number of Firm Shares to be purchased by the
Underwriters, as adjusted by the Underwriters in such manner as the
Underwriters deem advisable to avoid fractional shares. No Option Shares
shall be sold and delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered.
The Option Shares will be delivered by the Company to the
Underwriters against payment of the purchase price therefor by immediately
available funds payable to the order of the Company at the offices of
____________________________________________________ or such
8
other location as may be mutually acceptable at 9:00 a.m., Central time, on
the Second Closing Date. If the Underwriters so elect, delivery of the
Option Shares may be made by credit through full fast transfer to the
accounts at The Depository Trust Company designated by the Underwriters.
Certificates representing the Option Shares in definitive form and in such
denominations and registered in such names as you have set forth in your
notice of option exercise, will be made available for checking and packaging
not later than 10:30 a.m., Central time, on the business day next preceding
the Second Closing Date at the office of _________________________________
or such other location as may be mutually acceptable.
(c) It is understood that either Underwriter may (but shall not be
obligated to) make payment to the Company on behalf of the other Underwriter
for the Securities to be purchased by such other Underwriter. Any such
payment by an Underwriter shall not relieve any such other Underwriter of any
of its obligations hereunder. Nothing herein contained shall constitute any
of the Underwriters an unincorporated association or partner with the Company.
4. COVENANTS.
(a) The Company covenants and agrees with the Underwriters as
follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, the Company will use its best efforts to cause
the Registration Statement and any post-effective amendments thereto to
become effective as promptly as possible; the Company will notify you
promptly of the time when the Registration Statement or any post-effective
amendment to the Registration Statement has become effective or any
supplement to the Prospectus (including any term sheet within the meaning
of Rule 434 of the Rules and Regulations) has been filed and of any request
by the Commission for any amendment or supplement to the Registration
Statement or Prospectus or additional information; if the Company has
elected to rely on Rule 430A of the Rules and Regulations, the Company will
prepare and file a Prospectus (or term sheet within the meaning of Rule 434
of the Rules and Regulations) containing the information omitted therefrom
pursuant to Rule 430A of the Rules and Regulations with the Commission
within the time period required by, and otherwise in accordance with the
provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules and
Regulations; if the Company has elected to rely upon Rule 462(b) of the
Rules and Regulations to increase the size of the offering registered under
the Act, the Company will prepare and file a registration statement with
respect to such increase with the Commission within the time period
required by, and otherwise in accordance with the provisions of, Rule
462(b); if the Company has elected to rely upon the requirements of Rule
424(b)(2) or Rule 424(b)(5) of the Rules and Regulations, it will be
promptly prepare and file a supplemented prospectus pursuant to such rule;
the Company will prepare and file with the Commission, promptly upon your
request, any amendments or supplements to the Registration Statement or
Prospectus (including any term sheet within the meaning of Rule 434 of the
Rules and Regulations) that, in your opinion, may be necessary or advisable
in connection with the distribution of the Securities by the Underwriters;
and the Company will not file any amendment or supplement to the
Registration Statement or Prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) to which you shall
reasonably object by notice to the Company after having been furnished a
copy a reasonable time prior to the filing.
(ii) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Securities for
9
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and the Company will promptly use
its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(iii) Within the time during which a prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations)
relating to the Securities is required to be delivered under the Act, the
Company will comply as far as it is able with all requirements imposed upon
it by the Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as necessary to permit
the continuance of sales of or dealings in the Securities as contemplated
by the provisions hereof and the Prospectus. If during such period any
event occurs as a result of which the Prospectus would include an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act, the Company will promptly notify you and will amend the Registration
Statement or supplement the Prospectus (at the expense of the Company) so
as to correct such statement or omission or effect such compliance.
(iv) The Company will use its best efforts to qualify the
Securities for sale 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.
(v) The Company will furnish to the Underwriters copies of the
Registration Statement (three of which will be signed and will include all
exhibits), each Preliminary Prospectus, the Prospectus, and all amendments
and supplements (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations) to such documents, in each case as soon as
available and in such quantities as you may from time to time reasonably
request.
(vi) During a period of five years commencing with the date
hereof, the Company will furnish to the Underwriters, copies of all
periodic and special reports furnished to the stockholders of the Company
and all information, documents and reports filed with the Commission.
(vii) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 15 months
after the end of the Company's current fiscal quarter, an earnings
statement (which need not be audited) covering a 12-month period beginning
after the effective date of the Registration Statement that shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(viii) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is prevented from
becoming effective under the provisions of Section 9(a) hereof or 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 Underwriters of the Securities, (B)
all expenses and fees (including, without limitation, fees and expenses of
the Company's accountants and counsel but, except as otherwise provided
below, not including fees of the Underwriters' counsel) in connection with
the preparation, printing, filing, delivery, and shipping of the
Registration Statement (including the financial statements therein and
all amendments, schedules, and exhibits thereto), the Securities, each
Preliminary Prospectus, the Prospectus, and any amendment thereof or
supplement thereto, and the printing, delivery, and
10
shipping of this Agreement and other underwriting documents, including
Blue Sky Memoranda, (C) all filing fees and fees and disbursements of
the Underwriters' counsel incurred in connection with the qualification
of the Securities for offering and sale by the Underwriters or by
dealers under the securities or blue sky laws of the states and other
jurisdictions which you shall designate, (D) the fees and expenses of
any transfer agent or registrar, (E) the filing fees incident to any
required review by the National Association of Securities Dealers, Inc.
of the terms of the sale of the Securities, (F) listing fees, if any,
and (G) 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 Underwriters' obligations hereunder required to
be fulfilled by the Company is not fulfilled, the Company will reimburse
the Underwriters for all out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in connection
with their investigation, preparing to market and marketing the
Securities or in contemplation of performing their obligations
hereunder. The Company shall not in any event be liable to any of the
Underwriters for loss of anticipated profits from the transactions
covered by this Agreement.
(ix) [The Company will not, without your prior written consent,
offer for sale, contract to sell, grant any option for the sale of or
otherwise issue or dispose of any Common Stock or any securities
convertible into or exchangeable for, or any options or rights to purchase
or acquire, Common Stock, except to the Underwriters pursuant to this
Agreement for a period of 180 days after the commencement of the public
offering of the Securities by the Underwriters.]
(x) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(xi) The Company will not incur any liability for any finder's
or broker's fee or agent's commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xii) The Company will inform the Florida Department of Banking
and Finance at any time prior to the consummation of the distribution of
the Securities by the Underwriters if it commences engaging in business
with the government of Cuba or with any person or affiliate located in
Cuba. Such information will be provided within 90 days after the
commencement thereof or after a change occurs with respect to previously
reported information.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy, as of the date hereof and
at each of the First Closing Date and the Second 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 obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Central time, on the date of this Agreement, or such later time
and date as you shall approve and all filings
11
required by Rules 424, 430A and 434 of the Rules and Regulations shall have
been timely made; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereof shall have been issued and no
proceedings for the issuance of such an order shall have been initiated or
threatened; and any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto (including any term sheet within the meaning of Rule 434
of the Rules and Regulations), contains an untrue statement of fact which, in
your opinion, is material, or omits to state a fact which, in your opinion,
is material and is required to be stated therein or necessary to make the
statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its Subsidiaries
shall have incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions, or declared or paid
any dividends or made any distribution of any kind with respect to its
capital stock; and there shall not have been any change in the capital stock
(other than a change in the number of outstanding shares of Common Stock due
to the issuance of shares upon the exercise of outstanding options or
warrants), or any material change in the short-term or long-term debt of the
Company, or any issuance of options, warrants, convertible securities or
other rights to purchase the capital stock of the Company or any of its
Subsidiaries, or any material adverse change or any development involving a
prospective material adverse change (whether or not arising in the ordinary
course of business), in the general affairs, condition (financial or
otherwise), business, key personnel, property, prospects, net worth or
results of operations of the Company and its Subsidiaries, taken as a whole,
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
Prospectus.
(d) On each Closing Date, there shall have been furnished to you,
as Representatives of the several Underwriters, the opinion of Xxxxxxxxx &
Xxxxxx P.L.L.P., counsel for the Company, dated such 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 Registration Statement and Prospectus, and is duly
qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which its ownership or lease of real property or
the conduct of its business makes such qualification necessary and in which
the failure to so qualify would have a material adverse effect upon the
business, condition (financial or otherwise) or properties of the Company
and its Subsidiaries, taken as a whole.
(ii) The capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus under the
caption "Description of Capital Stock." All of the issued and
outstanding shares of the capital stock of the Company have been duly
12
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. The Securities to be issued and sold by the Company
hereunder have been duly authorized and, when issued, delivered and paid
for in accordance with the terms of this Agreement, will have been
validly issued and will be fully paid and nonassessable, and the holders
thereof will not be subject to personal liability by reason of being
such holders. Except as otherwise stated in the Registration Statement
and Prospectus, there are no preemptive rights or options, warrants,
agreements, contracts or other rights in existence to purchase or
acquire from the Company any shares of the capital stock of the Company
pursuant to the Company's charter, bylaws or any agreement or other
instrument known to such counsel to which the Company is a party or by
which the Company is bound. To the best of such counsel's knowledge,
neither the filing of the Registration Statement nor the offering or
sale of the Securities as contemplated by this Agreement gives rise to
any rights for or relating to the registration of any shares of Common
Stock or other securities of the Company.
(iii) All of the issued and outstanding shares of capital
stock of each of the Company's Subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable, and, to the
best of such counsel's knowledge, except as otherwise described in the
Registration Statement and Prospectus and except for directors'
qualifying shares, the Company owns of record and beneficially, free and
clear of any security interests, claims, liens, proxies, equities or
other encumbrances in the case of the Subsidiaries set forth on Exhibit
A attached hereto, that percentage of shares of the issued and
outstanding shares of such Subsidiaries' stock as is set forth on such
Exhibit A. To the best of such counsel's knowledge, except as described
in the Registration Statement and Prospectus, there are no options,
warrants, agreements, contracts or other rights in existence to purchase
or acquire from the Company or any Subsidiary any shares of the capital
stock of any Subsidiary of the Company.
(iv) The Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or, to the
knowledge of such counsel, threatened by the Commission.
(v) The descriptions in the Registration Statement and
Prospectus of statutes, and to the best of such counsel's knowledge,
legal and governmental proceedings or rulings, contracts and other
documents are accurate in all material respects and fairly present the
information required to be shown; and such counsel does not know of any
statutes or legal or governmental proceedings required to be described
in the Prospectus that are not described as required, or of any
contracts or documents of a character required to be described in the
Registration Statement or Prospectus or included as exhibits to the
Registration Statement that are not described or included as required.
(vi) The reports of the Company incorporated by reference in
the Registration Statement and the Prospectus or any further amendment
or supplement thereto made by the Company (other than the financial
statements, other financial data and related schedules therein, as to
which such counsel need express no opinion), when they were filed with
the Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
13
(vii) The Company has full corporate power and authority to
enter into this Agreement, and this 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 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 and the consummation of the transactions herein 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 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; 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 or for the
consummation of the transactions contemplated hereby, including the
issuance or sale of the Securities by the Company, except such as may be
required under the Act or state securities laws.
(viii) 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.
(ix) The Registration Statement and the Prospectus, and any
amendment thereof or supplement thereto (including any term sheet within
the meaning of Rule 434 of the Rules and Regulations), comply as to form
in all material respects with the requirements of the Act and the Rules
and Regulations; and on the basis of conferences with officers of the
Company, examination of documents referred to in the Registration
Statement and Prospectus and such other procedures as such counsel
deemed appropriate, nothing has come to the attention of such counsel
that causes such counsel to believe that the Registration Statement or
any amendment thereof, at the time the Registration Statement became
effective and as of such Closing Date (including any Registration
Statement filed under Rule 462(b) of the Rules and Regulations),
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (as of its date
and as of such Closing Date), as amended or supplemented, includes any
untrue statement of material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; it being understood that
such counsel need express no opinion as to the financial statements or
other financial data included in any of the documents mentioned in this
clause.
(x) Such other matters as you may reasonably request.
In rendering such opinion such counsel may rely (i) as to matters of
law other than Minnesota and federal law, upon the opinion or opinions of local
counsel provided that the extent of such reliance is specified in such opinion
and that such counsel shall state that such opinion or opinions of local
counsel are satisfactory to them and that they believe they and you are
justified in relying thereon and (ii) as to matters of fact, to the extent such
counsel deems reasonable upon certificates of officers of the Company and its
Subsidiaries and of public officials provided that the extent of such reliance
is specified in such opinion.
14
(e) On each Closing Date, there shall have been furnished to you, as
Representatives of the several Underwriters, such opinion or opinions from
Faegre & Xxxxxx LLP, counsel for the Underwriters, dated such Closing Date and
addressed to you, with respect to the formation of the Company, the validity of
the Securities, the Registration Statement, the Prospectus 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.
(f) On each Closing Date you shall have received a letter of Ernst &
Young LLP, dated such Closing Date and addressed to you, confirming that they
are independent public accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualifications of
accountants under Rule 2-01 of Regulation S-X of the Commission, and stating,
as of the date of such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of such letter), the conclusions and findings of said firm
with respect to the financial information and other matters covered by its
letter delivered to you concurrently with the execution of this Agreement, and
the effect of the letter so to be delivered on such Closing Date shall be to
confirm the conclusions and findings set forth in such prior letter.
(g) On each Closing Date, there shall have been furnished to you 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;
(ii) No stop order or other order suspending the
effectiveness of the Registration Statement or any amendment thereof or
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
(iii) The signers of said certificate have carefully examined
the Registration Statement and the Prospectus, and any amendments
thereof or supplements thereto (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), and (A) such
documents contain all statements and information required to be included
therein, the Registration Statement, or any amendment thereof, does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as amended or
supplemented, does not include any untrue statement of material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading, (B) since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an amended or
supplemented prospectus which has not been so set forth, (C) subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor any
of its Subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, not in the ordinary course of business, or declared or
paid any dividends or made any distribution of any kind with respect to
its capital stock (other than dividends paid in the ordinary course with
respect to shares of the Company's Common Stock or any of its
Subsidiaries' common stock), and except as disclosed in the Prospectus,
there has not been
15
any change in the capital stock (other than a change in the number of
outstanding shares of Common Stock due to the issuance of shares upon
the exercise of outstanding options or warrants), or any material change
in the short-term or long-term debt, or any issuance of options,
warrants, convertible securities or other rights to purchase the capital
stock, of the Company, or any of its Subsidiaries, or any material
adverse change or any development involving a prospective material
adverse change (whether or not arising in the ordinary course of
business), in the general affairs, condition (financial or otherwise),
business, key personnel, property, prospects, net worth or results of
operations of the Company and its Subsidiaries, taken as a whole, and
(D) except as stated in the Registration Statement and the Prospectus,
there is not pending, or, to the knowledge of the Company, threatened or
contemplated, any action, suit or proceeding to which the Company or any
of its Subsidiaries is a party before or by any court or governmental
agency, authority or body, or any arbitrator, which might result in any
material adverse change in the condition (financial or otherwise),
business, prospects or results of operations of the Company and its
Subsidiaries, taken as a whole.
(h) The Company shall have furnished to you and counsel for the
Underwriters 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 Underwriters.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise (including in settlement of any litigation if such settlement is
effected with the written consent of the Company), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, including the
information deemed to be a part of the Registration Statement at the time of
effectiveness pursuant to Rules 430A and 434(d) of the Rules and Regulations,
if applicable, any Preliminary Prospectus, the Prospectus, or any amendment
or supplement thereto (including any term sheet within the meaning of Rule
434 of the Rules and Regulations and any prospectus supplement to a
Registration Statement filed pursuant to Rule 415 of the Rules and
Regulations), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that the 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 the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any such amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company by you specifically for use in the preparation
thereof.
In addition to its 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 Underwriter on a
monthly basis for all reasonable legal fees or other expenses incurred in
connection with investigating or defending any such claim, action,
investigation,
16
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 Underwriters 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 Underwriter 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 Underwriter within 30 days of a request for
reimbursement shall bear interest at the Prime Rate from the date of such
request. This indemnity agreement shall be in addition to any liabilities
which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise (including in settlement of any
litigation, if such settlement is effected with your written consent),
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto (including any term sheet within the meaning of Rule 434 of the Rules
and Regulations), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any such amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company by you 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.
(c) 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 Underwriters, it is advisable for the Underwriters to be
represented as a group by separate counsel, the Underwriters shall have the
right to employ a single counsel to represent all Underwriters who may be
subject to liability arising from any claim in respect of which indemnity may
be sought by the Underwriters under this Section 6, in which event the
reasonable fees and expenses of such separate counsel shall be borne by the
indemnifying party or parties and remitted to the Underwriters for payment to
such counsel as such fees and expenses are incurred (in accordance with the
provisions of the second paragraph in subsection (a) above). An indemnifying
party shall not be obligated under any settlement agreement relating to any
action under this Section 6 to which it has not agreed in writing.
17
(d) 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 Underwriters 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 Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relevant intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection
(d) were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in the first sentence of this subsection (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 Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) 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 Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 6 shall be in addition to any
liability that the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company
(including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company), to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
7. 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
Underwriters 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 Underwriter 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
Underwriters hereunder.
18
8. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter or Underwriters shall fail to take up and
pay for the amount of Firm Shares agreed by such Underwriter or Underwriters
to be purchased hereunder, upon tender of such Firm Shares in accordance with
the terms hereof, and the amount of Firm Shares not purchased does not
aggregate more than 10% of the total amount of Firm Shares set forth in
Schedule II hereto, the remaining Underwriters shall be obligated to take up
and pay for (in proportion to their respective underwriting obligations
hereunder as set forth in Schedule II hereto except as may otherwise be
determined by you) the Firm Shares that the withdrawing or defaulting
Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up and
pay for the amount of Firm Shares agreed by such Underwriter or Underwriters
to be purchased hereunder, upon tender of such Firm Shares in accordance with
the terms hereof, and the amount of Firm Shares not purchased aggregates more
than 10% of the total amount of Firm Shares set forth in Schedule II hereto,
and arrangements satisfactory to you for the purchase of such Firm Shares by
other persons are not made within 36 hours thereafter, this Agreement shall
terminate. In the event of any such termination neither the Company nor any
Selling Stockholder shall be under any liability to any Underwriter (except
to the extent provided in Section 4(a)(viii), Section 4(b)(ii) and Section 6
hereof) nor shall any Underwriter (other than an Underwriter who shall have
failed, otherwise than for some reason permitted under this Agreement, to
purchase the amount of Firm Shares agreed by such Underwriter to be purchased
hereunder) be under any liability to the Company or the Selling Stockholders
(except to the extent provided in Section 6 hereof).
If Firm Shares to which a default relates are to be purchased by
the non-defaulting Underwriters or by any other party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the
necessary changes in the Registration Statement, Prospectus and any other
documents, as well as any other arrangements, may be effected. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 8.
9. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective at 10:00 a.m., Central
time, on the first full business day following the effective date of the
Registration Statement, or at such earlier time after the effective time of
the Registration Statement as the Underwriters in their discretion shall
first release the Securities for sale to the public; provided, that if the
Registration Statement is effective at the time this Agreement is executed,
this Agreement shall become effective at such time as the Underwriters in
their discretion shall first release the Securities for sale to the public.
For the purpose of this Section, the Securities shall be deemed to have been
released for sale to the public upon release by the Underwriters of the
publication of a newspaper advertisement relating thereto or upon release by
the Underwriters of telexes offering the Securities for sale to securities
dealers, whichever shall first occur. By giving notice as hereinafter
specified before the time this Agreement becomes effective, the Underwriters
or the Company may prevent this Agreement from becoming effective without
liability of any party to any other party, except that the provisions of
Section 4(a)(viii) and Section 6 hereof shall at all times be effective.
(b) The Underwriters shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time at or prior
to the First Closing Date, and the option referred to in Section 3(b), if
exercised, may be cancelled at any time prior to the Second 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
19
part to be performed hereunder, (ii) any other condition of the Underwriters'
obligations hereunder is not fulfilled, (iii) trading in securities on the
New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or System, (iv) a banking moratorium shall have been declared by
Federal, Xxx Xxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxx or Colorado
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)(viii), Section 4(b)(ii) and Section 6
hereof shall at all times be effective.
(c) If the Underwriters elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this
Section, the Company shall be notified promptly by 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.
10. INFORMATION FURNISHED BY UNDERWRITERS. The statements set forth in
the last paragraph of the cover page and under the caption "Underwriting" in
the Prospectus constitute the written information furnished by the
Underwriters or on their behalf referred to in Section 2 and Section 6 hereof.
11. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Underwriters,
shall be mailed, telegraphed or delivered to _____________________________
______________________________________________________ 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. Any party to this
Agreement may change such address for notices by sending to the parties to
this Agreement written notice of a new address for such purpose.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns and the controlling persons, officers and
directors referred to in Section 6. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal
or equitable remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors and assigns" as herein used
shall not include any purchaser, as such purchaser, of any of the Securities
from any of the Underwriters.
13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Minnesota without regard to the
conflicts of law provisions thereof.
[Signature Page Follows]
20
Please sign and return to the Company the enclosed duplicates of
this letter whereupon this letter will become a binding agreement between the
Company and you in accordance with its terms.
Very truly yours,
COMMUNITY FIRST BANKSHARES, INC.
By
----------------------------------
Its
-------------------------------
Confirmed as of the date first
above mentioned.
By
---------------------------------
Managing Director
By
---------------------------------
Managing Director
21
SCHEDULE I
Underwriter Number of Firm Shares (1)
----------- -------------------------
--------------
Total .................................
--------------
--------------
----------------------
(1) The Underwriters may purchase up to an additional ________ Option
Shares, to the extent the option described in Section 3(b) of the
Agreement is exercised, in the proportions and in the manner described
in the Agreement.
EXHIBIT A
COMMUNITY FIRST BANKSHARES, INC.
SUBSIDIARIES
OWNERSHIP
SUBSIDIARY BANK: LOCATION: PERCENTAGE
Community First National Bank Fergus Falls, MN 100.000%
Community First National Bank Fargo, ND 100.000%
Community First State Bank Vermillion, SD 100.000%
Community First National Bank Decorah, IA 100.000%
Community First National Bank Alliance, NE 100.000%
Community First National Bank Xxxxxxx, WI 100.000%
Colorado Community First National Bank Ft. Xxxxxx, CO 100.000%
Community First National Bank Cheyenne, WY 100.000%
NONBANK SUBSIDIARIES:
Community First Financial, Inc. Fargo, ND 100.000%
Community First Service Corporation Fargo, ND 100.000%
Community Insurance, Inc. Fargo, ND 100.000%
Community First Properties, Inc. Fargo, ND 100.000%
CFB Capital I Fargo, ND 100.000%
SUBSIDIARIES OF SUBSIDIARIES (100% OWNED):
Community First Insurance Agencies, Inc. Fargo, ND (Subsidiary of
Community First State
Bank [Vermillion, SD])
Equity Lending, Inc. Edina, MN (Subsidiary of
Colorado Community First
National Bank [Fort
Xxxxxx, CO])
Mountain Parks Financial Services, Inc. Denver, CO (Subsidiary of
Colorado Community First
State Bank [Fort
Xxxxxx, CO])
24
