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EXHIBIT 1
$___,___,___
FIRST SECURITY CAPITAL __
____ % Preferred Securities
as fully and unconditionally guaranteed by
FIRST SECURITY CORPORATION
FORM OF
UNDERWRITING AGREEMENT
____________, ____ [insert date]
To the Underwriters named
in Schedule 1 hereto
Dear Sirs:
First Security Capital __, a statutory business trust formed under
the Business Trust Act of the State of Delaware (the "Trust") and First Security
Corporation, a Delaware corporation (the "Company"), propose to issue and sell
an aggregate of $___ million liquidation amount of ___% Preferred Securities
(the "Preferred Securities"), liquidation amount $__ per Preferred Security (the
"Firm Securities") of the Trust, guaranteed (the "Guarantee" and, together with
the Preferred Securities and the Junior Subordinated Debentures referred to
below, the "Securities") by the Company pursuant to the Guarantee Agreement (the
"Guarantee Agreement") to be entered into by and between the Company and The
First National Bank of Chicago, N.A. ("FNB Chicago"), as guarantee trustee (the
"Guarantee Trustee"), the form of which has been filed as an exhibit to the
Registration Statement (as defined below). In addition, the Trust proposes to
grant to the Underwriters an option to purchase up to an additional $_____
aggregate liquidation amount of the Preferred Securities on the terms and for
the purposes set forth in Section 3 hereof (the "Option Securities"). The Firm
Securities and the Option Securities, if purchased, are hereinafter collectively
called "Preferred Securities." The Company will be the owner of all of the
undivided beneficial ownership interests represented by the common securities
(the "Common Securities") of the Trust. Concurrently with the issuance of the
Preferred Securities and the Company's purchase of all of the Common Securities,
the Trust will invest the proceeds of each thereof in ___% Junior Subordinated
Debentures (the "Junior Subordinated Debentures") issued by the Company. The
Junior Subordinated Debentures are to be issued pursuant to an Indenture (the
"Indenture") to be entered into between the Company and FNB Chicago, as
indenture trustee (the "Indenture Trustee"), the form of which has been filed as
an exhibit to the Registration Statement. This is to confirm the agreement
concerning the purchase of the Securities from the Trust and the Company by the
Underwriters named in Schedule 1 hereto (the "Underwriters"). This is also an
acknowledgment that this Agreement applies only to the Securities and to no
other securities that may be offered or sold
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by the Company or any of its statutory business trusts under the Registration
Statement and by means of the Prospectus.
1. Representations, Warranties and Agreements of the Company and the
Trust. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
(a) A registration statement on Form S-3, and any amendments
thereto, with respect to the Securities have (i) been prepared by the
Company and the Trust in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed with
the Commission under the Securities Act; and (iii) become effective under
the Securities Act; and the Indenture, the Declaration (as hereinafter
defined) and the Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). Copies of
the registration statement and any amendments to such registration
statement have been delivered by the Company and the Trust to you as the
representatives (the "Representatives") of the Underwriters. As used in
this Agreement, "Effective Time" means the date and the time as of which
the registration statement was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration statement,
or amendments thereof, before it became effective under the Securities Act
and any prospectus filed with the Commission by the Company and the Trust
with the consent of the Representatives pursuant to Rule 424(a) of the
Rules and Regulations; the "Registration Statement" means such
registration statement, as amended at its Effective Time, including any
documents incorporated by reference therein at such time; and "Prospectus"
means such final prospectus, as first filed with the Commission pursuant
to paragraph (1) or (4) of Rule 424(b) of the Rules and Regulations.
Reference made herein to any Preliminary Prospectus or to the Prospectus
shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities
Act, as of the date of such Preliminary Prospectus or the Prospectus, as
the case may be, and any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by
reference in such Preliminary Prospectus or the Prospectus, as the case
may be; and any reference to any amendment to the Registration Statement
shall be deemed to include any annual report of the Company filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after
the Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or were filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and
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do not and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the applicable
filing date (as to the Prospectus and any amendment or supplement thereto)
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 light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company and the Trust through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein; the
Indenture, the Declaration and the Guarantee Agreement conform in all
material respects to the requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder.
(c) The documents incorporated by reference in 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, in light
of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, 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, in light of the circumstances under
which they were made, or necessary to make the statements therein not
misleading.
(d) The Company and each of its subsidiaries (as defined in Section
15 hereof) have been duly incorporated and are validly existing as
corporations or as banking associations in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification
other than where the failure to be so qualified and in good standing could
not reasonably be expected to have a material adverse effect on the
business, financial condition or operating results of the Company and its
subsidiaries taken as a whole, and each has all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged.
(e) The Company has an authorized capitalization as set forth in the
Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable (except as set forth in 12 U.S.C.
ss.55) and are owned directly or indirectly by the Company (except for
directors' qualifying shares, if any), free and clear of all liens,
encumbrances, equities or claims.
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(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its business as described
in the Prospectus; the Trust has conducted and will conduct no business
other than the transactions contemplated by this Agreement as described in
the Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Declaration of Trust dated as of
__________ and, when executed, the Amended and Restated Declaration of
Trust (the "Declaration") among the Company, FNB Chicago, as property
trustee (the "Property Trustee"), First National Bank of Chicago
(Delaware), as Delaware trustee (the "Delaware Trustee") and the
individuals named therein as the regular trustees (the "Regular Trustees,"
and together with the Property Trustee and the Delaware Trustees, the
"Trustees"), and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust, and the agreements and instruments
contemplated by the Declaration and described in the Prospectus; the Trust
has no liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the agreements and
instruments contemplated by the Declaration and described in the
Prospectus; and the Trust is not a party or subject to any action, suit or
proceeding of any nature.
(g) The Declaration has been duly authorized by the Company and,
when duly executed and delivered by the Company, as Sponsor, and the
Regular Trustees, assuming due authorization, execution and delivery of
the Declaration by the Property Trustee and the Delaware Trustee, will be
a valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance and transfer,
reorganization, moratorium and other similar laws relating to or affecting
the rights of creditors generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing, and will conform in all material respects to
the description thereof contained in the Prospectus. Each of the Regular
Trustees is an employee of the Company and/or First Security Bank and has
been duly authorized by the Company and/or First Security Bank to serve in
such capacity and to execute and deliver the Declaration.
(h) The Preferred Securities and the Common Securities have been
duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued and fully
paid and the Preferred Securities will be non-assessable; and the
Preferred Securities and the Common Securities, when issued and delivered,
will conform in all material respects to the description thereof contained
in the Prospectus.
(i) The Indenture has been duly authorized, and when duly executed
by the proper officers of the Company, assuming due execution and delivery
by the Indenture Trustee, and delivered by the Company, will constitute a
valid and binding agreement of the Company enforceable against the Company
in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether
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considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; the Junior Subordinated Debentures have been
duly authorized and, when duly executed, authenticated and delivered as
provided in the Indenture, will be duly and validly issued and outstanding
and 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, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the
Junior Subordinated Debentures, when issued and delivered, will conform in
all material respects to the description thereof contained in the
Prospectus.
(j) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the proper officers of the Company, assuming due
execution and delivery by the Guarantee Trustee, will constitute a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing; and the Guarantee Agreement, when executed and delivered,
will conform in all material respects to the description thereof contained
in the Prospectus.
(k) This Agreement has been duly authorized, executed and delivered
by each of the Company and the Trust.
(l) (i) The execution, delivery and performance of this Agreement,
the Declaration, the Guarantee Agreement, the Indenture and the Junior
Subordinated Debentures by the Company and the Trust, as applicable, and
the consummation of the transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject and will not
violate or conflict with any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company, any of its subsidiaries or the Trust or any of their properties
or assets, except for such conflict, breach, violations or defaults as
would not, either individually or in the aggregate, have a material
adverse effect on the business, financial condition or operating results
of the Company and its subsidiaries taken as a whole; nor will such
actions result in any violation of the provisions of the charter or
by-laws of the Company or any of its subsidiaries; and except for the
registration of the Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Preferred Securities
by the Underwriters, no consent, approval, authorization or order of, or
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filing or registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this Agreement,
the Declaration, the Guarantee Agreement, the Indenture or the Junior
Subordinated Debentures or the consummation of the transactions
contemplated herein and therein, including the issuance of the Common
Securities and the Preferred Securities by the Trust and the purchase of
the Junior Subordinated Debentures by the Trust from the Company.
(m) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries or the Trust and any person granting
such person the right to require the Company or the Trust to include any
other securities in the securities registered pursuant to the Registration
Statement.
(n) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since such date, there has
not been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position or results
of operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly in
all material respects the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved; the pro forma financial information included in the
Prospectus has been prepared in accordance with the requirements of
Regulation S-X promulgated by the Commission and contains all adjustments
necessary for a fair presentation of the information set forth therein;
and the information contained in the Prospectus that constitutes
"forward-looking statements" within the meaning of Section 21E(i)(1) of
the Exchange Act has been prepared on the basis of the Company's best
current judgments and estimations as to future operating plans and
results.
(p) Xxxxxxxx & Touche, LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein and who have delivered the initial
letter referred to in Section 7(g) hereof, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(q) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any
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of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a material adverse effect
on the consolidated financial position, stockholders' equity, results of
operations or business of the Company and its subsidiaries taken as a
whole; and to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(r) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted
by the Rules and Regulations.
(t) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of
its properties or assets or to the conduct of its business.
(u) None of the Trust, the Company or any of the Company's
subsidiaries is an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission thereunder.
(v) Except as set forth or contemplated in the Prospectus, since the
date as of which information is given in the Registration Statement
through the date hereof, and except as may otherwise be disclosed in the
Registration Statement, as amended or supplemented, neither the Company
nor the Trust has (i) issued or granted any securities, (ii) incurred any
liability or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business, (iii)
entered into any transaction not in the ordinary course of business or
(iv) in the case of the Company, declared or paid any dividend on its
capital stock.
(w) To the best of the Company's knowledge, there has been no
storage, disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest) at,
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upon or from any of the properties now or previously owned or leased by
the Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably likely to
have, singularly or in the aggregate with all such violations and remedial
actions, a material adverse effect on the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto
such property or into the environment surrounding such property of any
toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or
with respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would not be
reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a material adverse effect on the business, financial position or
operating results of the Company and its subsidiaries; and the terms
"hazardous wastes," "toxic wastes," "hazardous substances" and "medical
wastes" shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to environmental
protection.
(x) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHC Act").
(y) The deposit accounts of each of the Company's bank subsidiaries
are insured by the Federal Deposit Insurance Corporation (the "FDIC") to
the fullest extent permitted by law and the rules and regulations of the
FDIC; and no proceedings for the termination of such insurance are pending
or threatened.
(z) The Company and each of its subsidiaries are in compliance in
all material respects, as required, with all laws administered by and
regulations of the Board of Governors of the Federal Reserve System, the
FDIC, the Utah Division of Financial Institutions and any other federal or
state bank regulatory authority with jurisdiction over the Company or any
of its subsidiaries (collectively, the "Bank Regulatory Authorities"),
other than where such failures to comply would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. Neither the
Company nor any of its subsidiaries is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter or
similar undertaking to, or is subject to any order or directive by, or is
a recipient of any extraordinary supervisory letter from, or has adopted
any board resolutions at the request of, any Bank Regulatory Authority
which materially restricts the conduct of its business, or in any manner
relates to its capital adequacy, its credit policies or its management,
nor have any of them been advised by any Bank Regulatory Authority that it
is contemplating issuing or
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requesting, or is considering the appropriateness of issuing or
requesting, any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission or any such board resolutions.
2. Purchase of the Preferred Securities by the Underwriters. (a) The
Trust and the Company hereby agree to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations, warranties and agreements
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Trust, the respective
liquidation amount of Firm Securities set forth in Schedule 1 hereto opposite
their names at a purchase price of ____% of the liquidation amount thereof.
(b) In addition, the Trust and the Company grant to the Underwriters
an option to purchase from the Trust, at a purchase price equal to ___% of the
liquidation amount thereof, up to an additional $_____ aggregate liquidation
amount of Option Securities. Such option is granted for the purpose of covering
over-allotments in the sale of the Firm Securities and is exercisable as
provided in Section 4 hereof. Option Securities shall be purchased severally for
the account of the Underwriters in proportion to the liquidation amounts of Firm
Securities set forth opposite the name of such Underwriters in Schedule 1
hereto. The respective purchase obligations of each Underwriter with respect to
the Option Securities shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Securities other than in a
liquidation amount of $25 or an integral multiple thereof.
(c) As compensation to the Underwriters for their commitments
hereunder, the Company shall, on the applicable Closing Date (as defined in
Section 4 hereof) pay to the Representatives, for the accounts of the several
Underwriters, a commission equal to __% of the liquidation amount of the
Preferred Securities to be delivered and purchased on such Closing Date.
(d) The Company and the Trust shall not be obligated to deliver any
of the Securities to be delivered on any Closing Date, except upon payment for
all the Securities to be purchased on such Delivery Date as provided herein.
3. Offering of Preferred Securities by the Underwriters. Upon
authorization by the Representatives of the release of the Firm Securities, the
several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Prospectus.
4. Delivery of and Payment. (a) Delivery by the Trust of the Firm
Securities to the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by wire transfer in
federal (same day) funds to such account as the Company shall specify on behalf
of the Trust, shall take place at the office, on the date and at the time
specified in Schedule 1 hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Firm Securities
being herein called the "First Closing Date").
(b) The Firm Securities will be in the form of one or more global
Firm Securities registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC").
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(c) At any time on or before the thirtieth day after the date
hereof, the option granted in Section 2(b) hereof may be exercised by written
notice being given to the Trust by the Representatives. Such notice shall set
forth the aggregate liquidation amount of Option Securities as to which the
option is being exercised and the date and time, as determined by the
Representatives, when the Option Securities are to be delivered; provided,
however, that this date and time shall not be earlier than the First Closing
Date nor earlier than the third business day after the date on which the option
shall have been exercised nor later than the fifth business day after the date
on which the option shall have been exercised. The date and time the Option
Securities are delivered are sometimes referred to as the "Second Closing Date"
and the First Closing Date and the Second Closing Date are sometimes referred to
as a "Closing Date."
(d) Delivery by the Trust of the Option Securities to the
Representatives for the respective accounts of the several Underwriters and
payment by the Underwriters therefor by wire transfer in federal (same day)
funds to such account as the Company will specify on behalf of the Trust, shall
take place at the office and at the time agreed to in advance by the
Underwriters and the Company, on the Second Closing Date, which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof.
(e) The Option Securities will be in the form of one or more global
Option Securities registered in the name of Cede & Co., as nominee of DTC.
(f) On the First Closing Date and the Second Closing Date, the
Company shall pay, or cause to be paid, the commissions payable on such Closing
Date to the Representatives for the accounts of the Underwriters under Section 2
by wire transfer in federal (same day) funds to such account as the
Representatives shall specify.
5. Further Agreements of the Company and the Trust. The Company and
the Trust, jointly and severally, each agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement or to the Prospectus prior
to the Second Closing Date except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives
with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with
the offering or sale of the Securities; to advise the
Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order
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or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to the Representatives and to counsel
for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement, the
Indenture, the Declaration, the Guarantee Agreement and the
computation of the ratio of earnings to fixed charges), (ii) each
Preliminary Prospectus, the Prospectus (not later than 10:00 A.M.,
New York City time, on the day following the execution and delivery
of this Agreement) and any amended or supplemented Prospectus (not
later than 10:00 A.M., New York City time, on the day following the
date of such amendment or supplement) and (iii) any document
incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any
time after the Effective Time of the Registration Statement in
connection with the offering or sale of the Securities (or any other
securities relating thereto) and if, at such time, any events shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act or the
Exchange Act, to notify the Representatives and, upon their request,
to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as
the Representatives may from time to time reasonably request of an
amended or supplemented Prospectus which will correct such statement
or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that
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may, in the judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters and
obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver
to the Representatives an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date,
to furnish to the Representatives copies of all materials furnished
by the Company to its shareholders and all public reports and all
reports and financial statements furnished by the Company to the
principal national securities exchange upon which the Company's
common stock may be listed or quoted pursuant to requirements of, or
agreements with, such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions in
the United States as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities; provided that in
connection therewith, neither the Trust nor the Company shall be
obligated to qualify as a foreign corporation or to file a general
consent to service of process;
(i) For a period of 30 days from the date of the Prospectus,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any trust certificate or
other securities of the Trust other than the sale of the Common
Securities to the Company and the sale of the Preferred Securities
to the Underwriters, as contemplated by this Agreement and the
Prospectus, any securities that are substantially similar to the
Securities, or any securities that are convertible into, or
exchangeable or exercisable for, any of the foregoing, or (2) enter
into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks
of ownership of the Securities, whether any such transaction
described in clauses (1) and (2) of this paragraph is to be settled
by delivery of the Securities or other
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securities, in cash or otherwise, in each case without the prior
written consent of __________ [insert name of lead underwriter], on
behalf of the Representatives;
(j) Prior to the Effective Date, to apply for the listing of
the Preferred Securities on the New York Stock Exchange, Inc. and to
use its best efforts to complete that listing, subject only to
official notice of issuance and evidence of satisfactory
distribution, prior to the First Closing Date;
(k) To apply the net proceeds from the sale of the Securities
as set forth in the Prospectus; and
(l) To take such steps as shall be necessary to ensure that
none of the Company, any subsidiary of the Company or the Trust
shall become an "investment company" within the meaning of such term
under the Investment Company Act and the rules and regulations of
the Commission thereunder.
6. Expenses. The Company and the Trust agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Securities and
any taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, the Prospectus and any amendments and exhibits thereto;
(c) the costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits thereto), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs of producing
and distributing this Agreement and any other related documents in connection
with the offering, purchase, sale and delivery of the Securities; (e) any
applicable listing or other fees; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 5(h) hereof and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters);
(g) any fees charged by securities rating services for rating the Securities;
(h) the fees and expenses of the Property Trustee, the Guarantee Trustee and the
Indenture Trustee; and (i) all other costs and expenses incident to the
performance of the obligations of the Company and the Trust under this
Agreement; provided that, except as provided in this Section 6 and in Section 11
hereof, the Underwriters shall pay their own costs and expenses, including the
costs and expenses of their counsel, any transfer taxes on the Securities which
they may sell and the expenses of advertising any offering of the Preferred
Securities made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Closing Date, of the representations and warranties of the Company
and the Trust contained herein, to the performance by the Company and the Trust
of their respective obligations hereunder, and to each of the following
additional terms and conditions:
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(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of
_________________, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Indenture, the Declaration, the Guarantee Agreement, the Securities,
the Junior Subordinated Debentures, the Registration Statement and
the Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby, shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters; and the Company and the Trust shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Xxx, Xxxxxxx & Xxxxxxx shall have furnished to the
Representatives its written opinion, as counsel to the Company,
addressed to the Underwriters and dated the applicable Closing Date,
in form and substance satisfactory to the Representatives, to the
effect that:
(1) The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations or
banking associations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified
to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their
respective businesses requires such qualification (other than
those jurisdictions in which the failure to so qualify would
not have a material adverse effect on the Company or the
Company and its subsidiaries taken as a whole), and have all
power and authority necessary to own or hold their respective
properties and conduct the businesses in which they are
engaged.
(2) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and has been duly
executed and delivered by the Trust.
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(3) The Indenture has been duly authorized, executed,
and delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Indenture Trustee,
constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and implied covenant of good
faith and fair dealing.
(4) The Junior Subordinated Debentures have been duly
authorized, executed and delivered by the Company, and,
assuming due authentification thereof by the Indenture Trustee
and payment and delivery as provided herein, constitute valid
and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(5) The Guarantee Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Guarantee
Trustee, constitutes a valid and legally binding obligation of
the Company, enforceable against the Company in accordance
with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(6) The Declaration has been duly authorized, executed
and delivered by the Company in its capacity as sponsor
thereunder.
(7) The execution, delivery and performance of this
Agreement, the Declaration, the Indenture, the Junior
Subordinated Debentures and the Guarantee Agreement by the
Company and the Trust, as applicable, and the consummation of
the transactions contemplated hereby and thereby, will not
constitute a material breach of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the character or by-laws of the
Company or any of its subsidiaries or any statute or any
order,
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rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets,
the effects of which breach, violation or default would be
material to the Company and its subsidiaries taken as a whole.
(8) All of the outstanding shares of capital stock of
each Significant Subsidiary (as such term is defined in Rule
12b-2 of the Commission under the Exchange Act) have been duly
authorized and validly issued and are fully paid and
non-assessable (except as provided in 12 U.S.C. ss.55); except
as disclosed in the Prospectus, all such shares are owned by
the Company (except for any directors' qualifying shares) free
and clear of any pledge, lien, security interest, charge,
claim, equitable right or encumbrance of any kind.
(9) No consent, approval, authorization, order,
registration or qualification of or with any Federal or Utah
governmental agency or body or any Delaware governmental
agency or body acting pursuant to the Delaware General
Corporation Law or, to such counsel's knowledge, any Federal
or Utah court or any Delaware court acting pursuant to the
Delaware General Corporation Law is required for the issue and
sale by the Trust of the Preferred Securities, the issuance by
the Company of the Junior Subordinated Debentures, the
issuance and sale of the Guarantee by the Company and the
compliance by the Company and Trust with all of the provisions
of this Agreement, except for such consents approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters.
(10) The statements contained in the Prospectus under
the captions "The Trust," "Certain Terms of the Preferred
Securities," "Certain Terms of the Guarantee," "Certain Terms
of the Junior Subordinated Debentures," and "Relationship
among the Preferred Securities, the Junior Subordinated
Debentures and the Guarantee," insofar as such statements
purport to constitute summaries of the terms of Declaration,
the Preferred Securities, the Guarantee, the Junior
Subordinated Debentures and the Indenture, as the case may be,
constitute accurate summaries of the terms of the Declaration,
the Preferred Securities, the Junior Subordinated Debentures,
the Guarantee and the Indenture, respectively.
(11) (A) The Trust will be classified as a grantor trust
for United States federal income tax purposes and not as
an association taxable as a corporation;
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(B) The Junior Subordinated Debentures will be
classified as debt for United States federal income tax
purposes; and
(C) Subject to the qualifications set forth
therein, the statements set forth in the Prospectus
under the caption "Certain United States Federal Income
Tax Consequences," insofar as they purport to constitute
summaries of matters of United States federal tax law
and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters
described therein in all material respects.
(12) All descriptions in the Prospectus of contracts and
other documents to which the Company or its subsidiaries are a
party are accurate in all material respects; to the best of
such counsel's knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Prospectus other than those described or referred to therein
or incorporated by reference as permitted by the rules and
Regulations.
(13) To the best of such counsel's knowledge, there are
no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statements by the Securities Act or by the Rules
and Regulations which have not been described or filed as
exhibits to the Registration Statements or incorporated
therein by reference as permitted by the Rules and
Regulations.
(14) To the best of such counsel's knowledge, no
contracts, agreements or understandings exist between the
Company and any person granting such person the right to
require the Company to include such Securities in the
securities registered pursuant to the Registration Statement.
(15) To the best of such counsel's knowledge, there is
no pending or threatened legal or governmental proceeding
which is required to be described in the Prospectus which is
not described as required.
(16) The Trust is not a party to or otherwise bound by
any agreement other than those described in the Prospectus.
(17) Neither the Company nor the Trust is required to be
registered as an "investment company" under the Investment
Company Act.
(18) The Company is duly registered as a bank holding
company under the BHC Act; and the deposit accounts of the
Company's bank subsidiaries are insured by the FDIC to the
fullest extent permitted by law
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and the rules and regulations of the FDIC, and to the best
knowledge of such, counsel no proceedings for the termination
of such insurance are pending or threatened.
(19) The Company and each of its subsidiaries are in
compliance in all material respects with all laws administered
by and regulations of the Bank Regulatory Authorities, other
than where such failures to comply would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole. Neither the Company nor any of its subsidiaries is a
party to any written agreement or memorandum of understanding
with, or a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory letter from,
or has adopted any board resolutions at the request of, any
Bank Regulatory Authority which materially restricts the
conduct of its business, or in any manner relates to its
capital adequacy, its credit policies or its management, nor
have any of them been advised by any Bank Regulatory Authority
that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding,
extraordinary supervisory letter, commitment letter or similar
submission, or any such board resolutions.
(20) The Registration Statement was declared effective
under the Securities Act and the Indenture, the Declaration
and the Guarantee were qualified under the Trust Indenture Act
as of the date and time specified in such opinion; the
Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein; no
stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or
threatened by the Commission.
(21) The Registration Statement, as of the Effective
Date, and the Prospectus, as of its date, and any further
amendments or supplements thereto, as of their respective
dates, made by the Company or the Trust prior to such Closing
Date (other than the financial statements and related
schedules contained therein, as to which such counsel need
express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations; the documents incorporated by reference
in the Prospectus and any further amendment or supplement to
any such incorporated document made by the Company or the
Trust prior to such Closing Date (other than the financial
statements and related schedules contained therein, as to
which such counsel need express no opinion), complied as to
form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, when
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they became effective or were filed with the Commission, as
the case may be, and the rules and regulations of the
Commission thereunder; and the Indenture, the Declaration and
the Guarantee conform in all material respects to the
requirements of the Trust Indenture Act and the applicable
rules and regulations thereunder.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of Utah and the General Corporation Law of
Delaware and that, as to matters concerning the Trust given in such
opinion, such counsel relied on special Delaware counsel to the Company
and the Trust. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that (x) such counsel has acted as counsel
to the Company in connection with the preparation of the Registration
Statement, and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead it to believe that (I) the
Registration Statement, as of the Effective Date, 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 contains any untrue statement of a
material fact or omits to state any 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, or (II) any
documents incorporated by reference in the Prospectus, when they were
filed with the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) Xxxxxxxx, Xxxxxx & Xxxxxx, P.A. shall have furnished to
the Representatives its written opinion, as special Delaware counsel
to the Company and the Trust, addressed to the Underwriters and
dated the applicable Closing Date, in form and substance
satisfactory to the Representatives, to the effect that:
(1) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act; and all filings required under
the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have been
made; and under the Declaration and the Delaware Business
Trust Act, the Trust has the trust power and authority to own
property and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under
each of this Agreement, the Preferred Securities and the
Common Securities.
(2) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees, and is enforceable
against the Company and the Trustees, in accordance with its
terms, subject, as to enforcement, to the
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effect upon the Declaration of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation,
fraudulent transfer and other similar laws relating to the
rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution.
(3) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i)
to execute and deliver and to perform its obligations under,
this Agreement and (ii) to execute and deliver the Preferred
Securities and the Common Securities.
(4) The Common Securities have been duly authorized by
the Declaration and, when issued and delivered by the Trust to
the Company against payment therefor as described in the
Prospectus, will be validly issued and (subject to the
qualifications set forth in this paragraph) fully paid
undivided beneficial interests in the assets of the Trust
(such counsel may note that the holders of Common Securities
will be subject to the withholding provisions of Section 10.4
of the Declaration, will be required to make payment or
provide indemnity or security as set forth in the Declaration
and will be liable for the debts and obligations of the Trust
to the extent provided in Section 9.1 of the Declaration);
under the Delaware Business Trust Act and the Declaration, the
issuance and sale of the Common Securities is not subject to
preemptive or other similar rights.
(5) The Preferred Securities have been duly authorized
by the Declaration and, when issued and delivered against
payment of the consideration as set forth in the Underwriting
Agreement, the Preferred Securities will be duly and validly
issued and (subject to the qualifications set forth in this
paragraph) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust; the holders of the
Preferred Securities will be entitled to the benefits of the
Declaration and, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware
(such counsel may note that the Holders of Preferred
Securities will be subject to the withholding provisions of
Section 10.4 of the Declaration and will be required to make
payment or provide indemnity or security in connection with
taxes or governmental charges arising from transfers or
exchanges of certificates for Preferred Securities and the
issuance of replacement certificates for Preferred Securities,
and to provide security or indemnity in connection with
requests of or directions to the Property Trustee to exercise
its rights and powers under the Declaration, all as set forth
in the Declaration).
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(6) Under the Delaware Business Trust Act and the
Declaration, all necessary trust action has been taken to duly
authorize the execution and delivery by the Trust of this
Agreement and the performance by the Trust of its obligations
thereunder.
(7) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Preferred Securities is not
subject to preemptive rights.
(8) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the
Trust of the Junior Subordinated Debentures, the execution,
delivery and performance by the Trust of this Agreement, the
consummation by the Trust of the transactions contemplated by
this Agreement, the compliance by the Trust with its
obligations thereunder and the performance by the Company, as
sponsor, of its obligations under the Declaration (A) do not
violate (i) any of the provisions of the Certificate of Trust
or the Declaration or (ii) any applicable Delaware law or
administrative regulation and do not require any consent,
approval, license, authorization or validation of, or filing
or registration with, any Delaware legislative, administrative
or regulatory body under the laws or administrative
regulations of the State of Delaware (other that as may be
required under the securities or blue sky laws of the state of
Delaware, as to which such counsel need express no opinion)
and (B) do not require any consent, approval, license,
authorization or validation of, or filing or registration
with, any Delaware legislative, administrative or regulatory
body under the laws or administrative regulations of the State
of Delaware (except that such counsel need express no opinion
with respect to the securities laws of the State of Delaware).
(9) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware
and has no assets, activities (other than having a Delaware
Trustee as required by the Delaware Business Trust Act and the
filing of documents with the Secretary of State of the State
of Delaware) or employees in the State of Delaware, the
holders of the Preferred Securities (other than those holders
of Preferred Securities who reside or are domiciled in the
State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable
for any income tax imposed by the State of Delaware.
(f) The Representatives shall have received from
_________________[insert name of counsel for the underwriters],
counsel for the Underwriters, such opinion or opinions, dated the
applicable Closing Date, with respect to the issuance and sale of
the Securities, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably require, and
the Company shall have
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furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the
Representatives shall have received from Deloitte & Touche, LLP a
letter, in form and substance satisfactory to the Representatives,
addressed to the Underwriters and dated the date hereof (i)
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 qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of the date hereof (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 hereof), the conclusions and
findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters"
to underwriters in connection with registered public offerings.
(h) With respect to the letter of Deloitte & Touche, LLP
referred to in the preceding paragraph and delivered to the
Representatives concurrently with the execution of this Agreement
(the "initial letter"), the Company shall have furnished to the
Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated the applicable
Closing Date (i) 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
qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of such bring-down
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 the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(i) The Company shall have furnished to the Representatives a
certificate, dated the applicable Closing Date, of its Chairman of
the Board, its President or an Executive Vice President and its
chief financial officer stating that:
(A) The representations, warranties and agreements of
the Company and the Trust in Section 1 hereof are true and
correct as of such Closing Date; the Company and the Trust
have complied with all their agreements contained herein and
the conditions set forth in paragraphs (a) and (k) of this
Section 7 have been fulfilled, and;
(B) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (i) the
Registration Statement, as of the
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Effective Date, and the Prospectus, as of each of the
Effective Dates, did not include any untrue statement of a
material fact and did not 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 were made, not misleading, and (ii) since the Effective
Date, no event has occurred which should have been set forth
in a supplement or amendment to the Registration Statement or
the Prospectus.
(j) (i) Neither the Company nor any of its subsidiaries shall
have sustained, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Prospectus and (ii) since such date there shall not have been any
change in the capital stock or long-term debt of the Company or
First Security Bank or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in
any such case described in clause (i) or (ii) of this paragraph, is,
in the reasonable judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations; and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities or preferred stock.
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on the New
York Stock Exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or
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the effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment of a
majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
(m) The New York Stock Exchange shall have approved the
Preferred Securities for listing, subject only to official notice of
issuance and evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company and the Trust, jointly and severally, shall
indemnify and hold harmless each Underwriter, its officers and
employees and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the
Securities), to which that Underwriter, officer, employee or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or (B) in any blue sky application
or other document prepared or executed by the Company or the Trust
(or based upon any written information furnished by the Company or
the Trust) specifically for the purpose of qualifying any or all of
the Securities under the securities laws of any state or other
jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), or (ii) the omission
or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above and shall reimburse each
Underwriter and each such officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably
incurred by that Underwriter, officer, employee or controlling
person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company and
the Trust shall not be liable in any such case to the extent that
any such
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loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any such amendment
or supplement, or in any Blue Sky Application in reliance upon and
in conformity with written information concerning such Underwriter
furnished to the Company through the Representatives by or on behalf
of such Underwriter specifically for inclusion therein which
information consists solely of the information specified in Section
8(e) hereof. The foregoing indemnity agreement is in addition to any
liability which the Company or the Trust may otherwise have to any
Underwriter or to any officer, employee or controlling person of
that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company and the Trust, their
officers and employees, each of their directors and each person, if
any, who controls the Company within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or
the Trust or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of
a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the
omission or alleged omission to state in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company and
the Trust through the Representatives by or on behalf of that
Underwriter specifically for inclusion therein, and shall reimburse
the Company and the Trust and any such director, officer or
controlling person for any legal or other expenses reasonably
incurred by the Company or the Trust or any such director, officer
or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company and the Trust or any
such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have under this
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Section 8 except to the extent it has been materially prejudiced by
such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section
8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election
to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that the
Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their
respective officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company
under this Section 8 if, in the reasonable judgement of the
Representatives, it is advisable for the Representatives and those
Underwriters, officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees
and expenses of such separate counsel shall be paid by the Company.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a) and 8(b), shall use its best efforts to
cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not
be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with the written consent of the
indemnifying party or if there be a final judgment of the plaintiff
in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b) in respect
of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, (i)
in such proportion as shall be appropriate to reflect the relative
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benefits received by the Company and the Trust 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 and the Trust on the one hand
and the Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the
Company and the Trust on the one hand and the Underwriters on the
other with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting
expenses) received by the Company and the Trust, on the one hand,
and the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Securities purchased
under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Securities under
this Agreement, 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 whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company and the Trust or
the Underwriters the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. For purposes of the preceding
two sentences, the net proceeds deemed to be received by the Company
shall be deemed to be also for the benefit of the Trust and
information supplied by the Company shall also be deemed to have
been supplied by the Trust. The Company, the Trust and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to
include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(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 was offered to the public exceeds the
amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any 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
Underwriters' obligations to contribute as provided in this Section
8(d) are several in proportion to their respective underwriting
obligations and not joint.
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(e) The Underwriters severally confirm and the Company and the
Trust acknowledge that the statements with respect to the public
offering of the Securities by the Underwriters set forth on the
cover page of and the concession and reallowance figures and the
information in the __________ [insert reference] textual paragraphs
appearing under the caption "Underwriting" in the Prospectus
constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. Defaulting Underwriters. If, on either Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Securities which the defaulting Underwriter agreed but failed to purchase on
such Closing Date in the respective proportions which the aggregate liquidation
amount of Firm Securities set opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total aggregate liquidation amount
of Firm Securities set opposite the names of all the remaining non-defaulting
Underwriters in Schedule 1 hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the
Securities on such Closing Date if the total Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date exceeds
9.09% of the total Securities to be purchased on such Closing Date, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the Securities which it agreed to purchase on such Closing Date
pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory
to the Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Securities to be purchased on the Closing Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the applicable Closing Date, this
Agreement (or, with respect to the Second Closing Date, the obligation of the
Underwriters to purchase, and the Trust to sell, the Option Securities) shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company and the Trust, except that the Company and the Trust will continue to be
liable for the payment of expenses to the extent set forth in Sections 6 and 11
hereof. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context requires otherwise, any party not
listed in Schedule 1 hereto who, pursuant to this Section 9, purchases the
Securities which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company or the Trust for damages caused by its
default. If other underwriters are obligated or agree to purchase the Securities
of a defaulting or withdrawing Underwriter, either the Representatives, the
Company or the Trust may postpone the Closing Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
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10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company and the Trust prior to delivery of and payment for the Firm Securities
if, prior to that time, any of the events described in Sections 7(k), 7(l) or
7(m) shall have occurred or if the Underwriters shall decline to purchase the
Securities for any reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Trust shall
fail to tender the Securities for delivery to the Underwriters for any reason or
(b) the Underwriters shall decline to purchase the Securities for any reason
permitted by this Agreement, the Company and the Trust shall reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and the
proposed purchase of the Securities, and upon demand the Company and the Trust
shall pay the full amount thereof to the Representatives. If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, neither the Company nor the Trust shall be obligated to reimburse
any defaulting Underwriter on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to_________________________,
Attention: ______________ (Fax: ___-___-____) with a copy, in the
case of any notice pursuant to Section 8(c), to the
________________________;
(b) if to the Company or to the Trust, shall be delivered or
sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Chief
Financial Officer (Fax: 000-000-0000);
All notices to an Underwriter pursuant to Section 8(c) shall be
delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect at the time of
receipt thereof. The Company and the Trust shall be entitled to act
and rely upon any request, consent, notice or agreement given or
made on behalf of the Underwriters by ____________ [insert name of
lead underwriter].
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
the Trust and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the representations, warranties, indemnities and agreements of the Company
and the Trust contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (b) the indemnity agreement of
the Underwriters contained in Section 8(b) of this
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Agreement shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Trust and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the
Company and the Trust and the Underwriters, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
FIRST SECURITY CORPORATION
By:________________________________
Name:
Title:
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FIRST SECURITY CAPITAL __
By: First Security Corporation, as Sponsor
By:________________________________
Name:
Title:
Accepted:
[INSERT NAMES OF REPRESENTATIVES]
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By:______________________________
By:______________________________
Authorized Representative
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SCHEDULE 1
Liquidation
Amount of
Preferred
Underwriters Securities
------------ ----------
[INSERT NAMES OF UNDERWRITERS]........................... $
___________________________________......................
___________________________________......................
Total............................................ $___,___,___
============
