Exhibit 1.2
Capital Securities
CFB Capital III, IV or V
_______ % Cumulative Capital Securities
(Liquidation Preference of $25 per Capital Security)
PURCHASE AGREEMENT
_____________________, 2002
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Ladies and Gentlemen:
Community First Bankshares, Inc., a Delaware corporation (the
"Company"), and its fiduciary subsidiary, CFB Capital III, IV or V [as
applicable] a statutory business trust organized under the Delaware Business
Trust Act (the "Delaware Act") (the "Trust" and together with the Company, the
"Offerors"), propose that the Trust issue and sell to _____________________
________________________________________(the "Underwriters") an aggregate of
__________________ of the Trust's % Cumulative Capital Securities, with a
liquidation preference of $25.00 per capital security (the "Capital
Securities"), the terms of which are more fully described in the Prospectus (as
hereinafter defined). The Offerors propose that the Trust issue the Capital
Securities pursuant to an Amended and Restated Trust Agreement among Wilmington
Trust Company, as Property Trustee and Indenture Trustee, the administrative
trustees named therein (the "Administrative Trustees") and the Company (the
"Trust Agreement"). The Capital Securities will be guaranteed by the Company
with respect to distributions and payments upon liquidation, redemption and
otherwise (the "Guarantee") pursuant to a Guarantee Agreement (the "Guarantee
Agreement"), to be dated __________________, ______, between the Company and
Wilmington Trust Company, as trustee (the "Guarantee Trustee"), and entitled to
the benefits of certain backup undertakings described in the Prospectus (as
defined herein) with respect to the Company's agreement pursuant to the Expense
Agreement (as defined herein) to pay all expenses relating to administration of
the Trust.
The proceeds of the sale of the Capital Securities will be used to
purchase junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures") issued by the Company pursuant to an Indenture, to be
dated , ______, between the Company and Wilmington Trust Company as
trustee (the "Indenture").
The Offerors hereby confirm their agreement with respect to the sale of
the Capital Securities to the Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. A registration statement on
Form S-3 (File No. ) with respect to the Capital Securities, the
Guarantee and the Junior Subordinated Debentures, including a preliminary
form of prospectus, has been prepared by the Offerors in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and the rules and regulations
thereunder and has been filed with the Commission; and, if the Offerors have
elected to rely upon Rule 462(b) of the Rules and Regulations to increase the
size of the offering registered under the Act, the Offerors will prepare and
file with the Commission a registration statement with respect to such
increase pursuant to Rule 462(b). Copies of such registration statement(s)
and amendments and each related preliminary prospectus have been delivered to
the Underwriters. If the Offerors have elected not to rely upon Rule 430A of
the Rules and Regulations, the Offerors have prepared and will promptly file
an amendment to the registration statement and an amended prospectus
(including a term sheet meeting the requirements of Rule 434 of the Rules and
Regulations) if necessary to complete the Prospectus. If the Offerors have
elected to rely upon Rule 430A of the Rules and Regulations, they will
prepare and file a prospectus (or a term sheet meeting the requirements of
Rule 434) pursuant to Rule 424(b) that discloses the information previously
omitted from the prospectus in reliance upon Rule 430A. If the Offerors have
elected to rely upon the requirements of Rule 415(a)(i)(x) of the Rules and
Regulations, they will promptly prepare and file a prospectus pursuant to
Rule 424(b) that discloses the information previously omitted from the
prospectus in reliance upon Rule 415(a)(i)(x). Such registration statement,
as amended at the time it is or was declared effective by the Commission,
and, in the event of any amendment thereto after the effective date and prior
to the Closing Date (as hereinafter defined), such registration statement as
so amended (but only from and after the effectiveness of such amendment),
including a registration statement (if any) filed pursuant to Rule 462(b) of
the Rules and Regulations increasing the size of the offering registered
under the Act and information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rules 430A(b) and 434(d)
of the Rules and Regulations, is hereinafter called the "Registration
Statement". The prospectus included in the Registration Statement at the time
it is or was declared effective by the Commission is hereinafter called the
"Prospectus", except that if any prospectus (including any term sheet meeting
the requirements of Rule 434 of the Rules and Regulations provided by the
Offerors for use with a prospectus subject to completion within the meaning
of Rule 434 in order to meet the requirements of Section 10(a) of the Rules
and Regulations) filed by the Offerors with the Commission pursuant to Rule
424(b) (and Rule 434, if applicable) of the Rules and Regulations or any
other such prospectus provided to you by the Offeror for use in connection
with the offering of the Capital Securities (whether or not required to be
filed by the Offeror with the Commission pursuant to Rule 424(b) of the Rules
and Regulations) differs from the prospectus on file at the time the
Registration Statement is or was declared effective by the Commission, the
term "Prospectus" shall refer to such differing prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations) from
and after the time such prospectus is filed with the Commission or
transmitted to the Commission for filing pursuant to such Rule 424(b) (and
Rule 434, if applicable) or from and after the time it is first provided to
you by the Offeror for such use. The term "Preliminary Prospectus" as used
herein means the preliminary prospectus included in any Registration
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Statement prior to the time it becomes or became effective under the Act and any
prospectus subject to completion as described in Rule 430A or 434 of the Rules
and Regulations.
In connection with the offer and sale of the Capital Securities, the
Underwriters will comply with Rule 2810 under the NASD Conduct Rules.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Offerors represent and warrant to, and agree with, the
Underwriters as follows:
(i) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission and the
Preliminary Prospectus, at the time of filing thereof, did not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing shall not apply to statements
in or omissions from the Preliminary Prospectus in reliance upon, and
in conformity with, written information furnished to the Company by
either Underwriter for use in the preparation thereof.
(ii) As of the time the Registration Statement (or
any post-effective amendment thereto, including a registration
statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the
Act) is or was declared effective by the Commission, upon the filing or
first delivery to the Underwriters of the Prospectus (or any supplement
to the Prospectus (including any term sheet meeting the requirements of
Rule 434 of the Rules and Regulations)) and at the Closing Date (as
hereinafter defined), (A) the Registration Statement and Prospectus (in
each case, as so amended and/or supplemented) conformed or will conform
in all material respects to the requirements of the Act and the Rules
and Regulations and the Registration Statement and Prospectus (in each
case as so amended and/or supplemented) conformed or will conform in
all material respects to the requirements of the Trust Indenture Act
and the rules and regulations thereunder, (B) the Registration
Statement (as so amended) did not or will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and (C) the Prospectus (as so supplemented) did not or will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are or
were made, not misleading; except that the foregoing shall not apply to
(i) statements in or omissions from any such document in reliance upon,
and in conformity with, written information furnished to the Offerors
by either Underwriter specifically for use in the preparation thereof
and (ii) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification ("Form T-1") under the Trust
Indenture Act. If the Registration Statement has been declared
effective by the Commission, no stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceeding for
that purpose has been initiated or, to the Offeror's knowledge,
threatened by the Commission.
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(iii) The documents of the Company incorporated by
reference in the Registration Statement and the Prospectus, when they
were filed with the Commission conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement and the
Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(iv) The consolidated financial statements of the
Company, together with the notes thereto, incorporated by reference in
the Registration Statement, Preliminary Prospectus and Prospectus
comply in all material respects with the requirements of the Act and
the Exchange Act and fairly present the consolidated financial
condition of the Company and its consolidated subsidiaries as of the
dates indicated and the results of operations and changes in cash flows
for the periods therein specified in conformity with generally accepted
accounting principles consistently applied throughout the periods
involved (except as otherwise stated in the Registration Statement and
Prospectus) and the independent public accountants whose reports are
contained therein are independent public accountants as required by the
Act and the Rules and Regulations.
(v) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of
the State of Delaware and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC Act"),
supervised by the Board of Governors of the Federal Reserve System (the
"FRB"). The only subsidiaries of the Company other than the Trust,
(each a "Subsidiary" and collectively the "Subsidiaries") and the
percentage of issued and outstanding shares of stock of each such
Subsidiary owned of record and beneficially by the Company are set
forth in Exhibit A attached hereto. Each Subsidiary has been duly
organized and is validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization as the case may
be. Each of the Company and its Subsidiaries has full corporate power
and authority to own its properties and conduct its business as
currently being carried on and as described in the Registration
Statement and Prospectus, and is duly qualified to do business as a
foreign corporation in good standing under the corporation and
financial services laws of each jurisdiction in which the conduct of
its business or ownership or lease of its properties requires such
qualification and where the failure to be so qualified would,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects,
assets, results of operations or properties of the Company and its
subsidiaries taken as a whole. Other than the foregoing Subsidiaries
and the Trust, the Company owns no capital stock or other equity,
ownership or proprietary interest in any company,
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partnership, association, trust or other entity. The accounts of each
of the Company's subsidiaries which are banks are insured by the Bank
Insurance Fund of the Federal Deposit Insurance Corporation (the
"FDIC") up to the maximum applicable amount in accordance with the
rules and regulations of the FDIC, and no proceedings for the
termination or revocation of such membership or insurance are pending,
or, to the knowledge of the Company, threatened.
(vi) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act
with full trust power and authority to own property and to conduct its
business as described in the Registration Statement and Prospectus and
to enter into and perform its obligations under this Agreement, the
Capital Securities, the Common Securities and the Trust Agreement and
is authorized to do business in each jurisdiction in which such
qualification is required, except where the failure to so qualify would
not have a material adverse effect on the Company's condition
(financial or otherwise), earnings, business, prospects, assets,
results of operations or properties taken as a whole; the Trust has
conducted and will conduct no business other than the transactions
contemplated by the Trust Agreement and described in the Prospectus;
the Trust is not a party to or otherwise bound by any agreement other
than those described in the Prospectus; the Trust is and will be
classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation; and the Trust
is and will be treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(vii) Except as contemplated in the Prospectus,
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Trust nor
the Company, nor any of its Subsidiaries has incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions, or declared or paid any dividends or made any
distribution of any kind with respect to its capital stock (other than
dividends paid in the ordinary course with respect to shares of the
Company's Common Stock or any of its subsidiaries' common stock); and
there has not been any change in the capital stock (other than a change
in the number of outstanding shares of Common Stock due to the issuance
of shares upon the exercise of outstanding options or warrants), or any
material change in the short-term or long-term debt, or any issuance of
options, warrants, convertible Capital Securities or other rights to
purchase the capital stock, of the Trust, the Company or any of its
Subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in the general
affairs, condition (financial or otherwise), business, key personnel,
property, prospects, net worth or results of operations of the Trust or
the Company and its Subsidiaries, taken as a whole.
(viii) Except as set forth in the Registration
Statement and the Prospectus or in the documents incorporated therein
by reference, there is not pending or, to the knowledge of the Trust or
the Company, threatened or contemplated, any action, suit or proceeding
to which the Trust or the Company or any of its Subsidiaries is a party
or to which either of their assets may be subject, before or by any
court or governmental agency, authority or body, or any arbitrator,
which might result in any material adverse
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change in the condition (financial or otherwise), business, prospects,
net worth or results of operations of the Trust or the Company and its
Subsidiaries, taken as a whole.
(ix) There are no contracts or documents of the Trust
or the Company or any of its Subsidiaries that are required to be filed
as exhibits to the Registration Statement by the Act or by the Rules
and Regulations which contracts or documents have not been so filed.
(x) Each of this Agreement, the Indenture, the Trust
Agreement, the Guarantee and the Agreement as to Expenses and
Liabilities (the "Expense Agreement") has been duly authorized,
executed and delivered by the Company and/or the Trust, as the case may
be, and constitutes a valid, legal and binding obligation of the
Company and/or the Trust, as the case may be, enforceable in accordance
with its terms, except as rights to indemnity hereunder may be limited
by federal or state securities laws and except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject to general
principles of equity. The execution, delivery and performance of this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement
and the Expense Agreement and the consummation of the transactions
herein or therein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under,
any statute, any agreement or instrument to which the Company or the
Trust is a party or by which it is bound or to which any of its
property is subject, the Company's charter or bylaws, the Trust's Trust
Agreement or its certificate of trust filed with the State of Delaware
on _____________________, ________, (the "Certificate of Trust") or any
order, rule, regulation or decree of any court or governmental agency
or body having jurisdiction over the Company or the Trust or any of the
properties of either the Company or the Trust; no consent, approval,
authorization or order of, or filing with, any court or governmental
agency or body is required for the execution, delivery and performance
of this Agreement, the Indenture, the Trust Agreement, the Guarantee
and the Expense Agreement or for the consummation of the transactions
contemplated hereby or thereby, including the issuance or sale of the
Junior Subordinated Debentures by the Company and the Capital
Securities by the Trust, except such as may be required under the Act
or state securities or blue sky laws; each of the Company and the Trust
has full power and authority to enter into this Agreement, the
Indenture, the Trust Agreement, the Guarantee and the Expense
Agreement, and to authorize, issue and sell the Capital Securities as
contemplated by this Agreement; and each of the Indenture, the Trust
Agreement and the Guarantee Agreement has been duly qualified under the
Trust Indenture Act and will conform in all material respects to the
statements relating thereto in the Registration Statement and the
Prospectus.
(xi) All of the issued and outstanding shares of
capital stock of the Company, including the shares of Common Stock
issued, are duly authorized and are, or will be at the Closing Date,
validly issued, fully paid and nonassessable, have been issued, in
compliance with all federal and state securities laws, were not issued
in violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities, and the holders thereof are not
subject to personal liability by reason
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of being such holders; and the capital stock of the Company, including
the Common Stock conforms to the description thereof in the
Registration Statement and Prospectus. Except as otherwise stated in
the Registration Statement and Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of Common Stock
pursuant to the Company's charter, bylaws or any agreement or other
instrument to which the Company is a party or by which the Company is
bound. Neither the filing of the Registration Statement gives rise to
any rights for or relating to the registration of any shares of Common
Stock or other capital stock of the Company. All of the issued and
outstanding shares of capital stock of each of the Company's
subsidiaries have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise described in the
Registration Statement and Prospectus and except for any directors'
qualifying shares, the Company owns, or on the Closing Date shall own,
of record and beneficially, free and clear of any security interests,
claims, liens, proxies, equities or other encumbrances, all of the
issued and outstanding shares of such stock. Except as described in the
Registration Statement and the Prospectus, there are no options,
warrants, agreements, contracts or other rights in existence to
purchase or acquire from the Company or any Subsidiary of the Company
any shares of the capital stock of the Company or any Subsidiary of the
Company. The Company has an authorized and outstanding capitalization
as set forth in the Registration Statement and the Prospectus.
(xii) The Junior Subordinated Debentures have been
duly authorized by the Company and at the Closing Date, will have been
duly executed by the Company and, when authenticated in the manner
provided for in the Indenture and delivered against payment therefor as
described in the Prospectus, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to
general principles of equity, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to the statements relating thereto in the Prospectus
(xiii) The Common Securities have been duly
authorized by the Trust Agreement and, when issued and delivered by the
Trust to the Company against payment therefor as described in the
Registration Statement and Prospectus, will be validly issued and
(subject to the terms of the Trust Agreement) fully paid and
nonassessable undivided beneficial interests in the assets of the Trust
and will conform to all statements relating thereto contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Date all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(xiv) The Capital Securities have been duly
authorized by the Trust Agreement and, when issued and delivered
pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and non-assessable
undivided beneficial interests in the Trust, will be entitled to the
benefits
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of the Trust Agreement and will in all material respects conform to the
statements relating thereto contained in the Prospectus; the issuance
of the Capital Securities is not subject to preemptive or other similar
rights; and holders of Capital Securities will be entitled to the same
limitation of personal liability under Delaware law as extended to
stockholders of private corporations for profit.
(xv) The Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement are in substantially the
respective forms filed as exhibits to the Registration Statement.
(xvi) The Company's obligations under the Guarantee
are subordinated and junior in right of payment to all "Senior and
Subordinated Debt" (as defined in the Indenture) of the Company.
(xvii) The Junior Subordinated Debentures are
subordinate and junior in right of payment to all "Senior and
Subordinated Debt" of the Company.
(xviii) Each of the Administrative Trustees of the
Trust is an employee of the Company and has been duly authorized by the
Company to execute and deliver the Trust Agreement.
(xix) The Trust and the Company and each of its
Subsidiaries holds, and is operating in compliance in all material
respects with, all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders of any
governmental or self-regulatory body required for the conduct of its
business and all such franchises, grants, authorizations, licenses,
permits, easements, consents, certifications and orders are valid and
in full force and effect, and the Trust and the Company and each of its
Subsidiaries is and has been in compliance in all material respects
with all applicable federal, state, local and foreign laws,
regulations, orders and decrees, except to the extent that the failure
to comply would not have a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects, assets,
results of operations or properties of the Company and its subsidiaries
taken as a whole.
(xx) The Company and its Subsidiaries have good title
to all property (and good and marketable title to all real property)
described in the Registration Statement and Prospectus as being owned
by them, in each case free and clear of all liens, claims, security
interests or other encumbrances except such as are described in the
Registration Statement and the Prospectus or which do not interfere in
any material respect with the use of the property on the conduct of the
business of the Company and its Subsidiaries; the property held under
lease by the Company and its Subsidiaries is held by them under valid,
subsisting and enforceable leases with only such exceptions with
respect to any particular lease as do not interfere in any material
respect with the conduct of the business of the Company or its
subsidiaries; the Company and each of its Subsidiaries owns or
possesses all patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets and rights necessary
for the conduct of the business of the
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Company and its subsidiaries as currently carried on and as described
in the Registration Statement and Prospectus; except as stated in the
Registration Statement and Prospectus, to the best of the Company's
knowledge, no name which the Company or any of its Subsidiaries uses
and no other aspect of the business of the Company or any of its
Subsidiaries will involve or give rise to any infringement of, or
license or similar fees for, any patents, patent applications,
trademarks, service marks, tradenames, trademark registrations,
service xxxx registrations, copyrights, licenses, inventions, trade
secrets or other similar rights of others material to the business or
prospects of the Company and neither the Company nor any of its
Subsidiaries has received any notice alleging any such infringement
or fee.
(xxi) Neither the Company nor any of its Subsidiaries
is in violation of its respective charter or bylaws; the Trust is not
in violation of the Trust Agreement or its Certificate of Trust; none
of the Company, any of its Subsidiaries or the Trust is in breach of or
otherwise in default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note,
indenture, loan agreement or any other material contract, lease or
other instrument to which it is subject or by which any of them may be
bound, or to which any of the material property or assets of the
Company, any of its Subsidiaries or the Trust is subject.
(xxii) The Trust and the Company and its Subsidiaries
have filed all federal, state, local and foreign income and franchise
tax returns required to be filed and are not in default in the payment
of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, other than any which the Company or
any of its subsidiaries is contesting in good faith.
(xxiii) The Offerors have not distributed and will
not distribute any prospectus or other offering material in connection
with the offering and sale of the Capital Securities and the Common
Stock other than any Preliminary Prospectus or the Prospectus or other
materials permitted by the Act to be distributed by the Company.
(xxiv) The Company and its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxv) Other than as contemplated by this Agreement or
described in the Registration Statement, the Company has not incurred
any liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement, or the
consummation of the transactions contemplated hereby or thereby.
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(xxvi) Neither the Trust, the Company or any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or an "investment adviser" within the meaning of
the Investment Advisers Act of 1940, as amended.
(xxvii) No report or application filed by the Company
or any of its Subsidiaries with the FRB, OCC, Department or the FDIC,
as of the date it was filed, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading when
made or failed to comply with the applicable requirements of the FRB,
OCC, Department or the FDIC, as the case may be.
(xxviii) The proceeds from the sale of the Capital
Securities will constitute "tier 1" capital (as defined in 12 C.F.R.
Part 325).
(xxix) Neither of the Offerors nor any of their
affiliates is presently doing business with the government of Cuba or
with any person or affiliate located in Cuba.
(xxx) The Capital Securities have been conditionally
approved for listing on the Nasdaq National Market System.
(b) Any certificate signed by any officer of the Company or a
trustee of the Trust and delivered to either Underwriter or to counsel for
either Underwriter shall be deemed a representation and warranty by the Company
to you as to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF CAPITAL SECURITIES; ADVISORY FEE.
On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the Trust
agrees to issue and sell _______________ Capital Securities to you, and you
agree to purchase the Capital Securities from the Trust at a purchase price per
Capital Security of $25.00 per share. As compensation to the Underwriters for
their commitments hereunder and in view of the fact that the proceeds of the
sale of the Capital Securities (together with the entire proceeds from the sale
by the Trust to the Company of the Common Securities) will be used to purchase
the Junior Subordinated Debentures, the Company hereby agrees to pay at the
Closing Date to you, a commission per Capital Security equal in amount to
__________________________________ percent (_______%) of the gross proceeds from
the sale of the Capital Securities to be delivered by the Trust hereunder at the
Closing Date.
The Capital Securities will be delivered by the Company to you against
payment of the purchase price therefor by certified or official bank check or
same day funds payable to the Company at the offices of _____________________
_______________________________________ or such other location as may be
mutually acceptable, at 9:00 a.m. Central time on the third (or if the Capital
Securities are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act,
after 4:30 p.m. Eastern time, on the fourth) full business day following the
date hereof, or at such other time and date as you and the Company determine
pursuant to Rule 15c6-1(a) under the
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Exchange Act, such time and date of delivery being herein referred to as the
"Closing Date." Delivery of the Capital Securities may be made by credit through
full fast transfer to the accounts at The Depository Trust Company designated by
you. Certificates representing the Capital Securities, in definitive form and in
such denominations and registered in such names as you may request upon at least
two business days' prior notice to the Company shall be prepared and will be
made available for checking and packaging, not later than 10:30 a.m., Central
time, on the business day next preceding the Closing Date at the offices of
___________________________________ __________________________________________,
or such other location as may be mutually acceptable.
It is understood that each Underwriter may (but shall not be obligated
to) make payment to the Company on behalf of the other Underwriter for the
Securities to be purchased by such Underwriter. Any such payment shall not
relive such other Underwriter of any of its obligations hereunder. Nothing
herein contained shall constitute either of the Underwriters an unincorporated
association or partner with either or both Offerors.
4. COVENANTS.
(a) The Offerors jointly and severally covenant and agree with
the Underwriters as follows:
(i) If the Registration Statement has not already
been declared effective by the Commission, the Company will use its
best efforts to cause the Registration Statement and any post-effective
amendments thereto to become effective as promptly as possible; the
Company will notify you promptly of the time when the Registration
Statement or any post-effective amendment to the Registration Statement
has become effective or any supplement to the Prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations)
has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or additional
information; if the Company has elected to rely on Rule 430A of the
Rules and Regulations, the Company will prepare and file a Prospectus
(or term sheet within the meaning of Rule 434 of the Rules and
Regulations) containing the information omitted therefrom pursuant to
Rule 430A of the Rules and Regulations with the Commission within the
time period required by, and otherwise in accordance with the
provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules
and Regulations; if the Company has elected to rely upon Rule 462(b) of
the Rules and Regulations to increase the size of the offering
registered under the Act, the Company will prepare and file a
registration statement with respect to such increase with the
Commission within the time period required by, and otherwise in
accordance with the provisions of, Rule 462(b); if the Offerors have
elected to rely upon the requirements of Rule 415(a)(i)(x) of the Rules
and Regulations, they will promptly prepare and file a prospectus
pursuant to Rule 424(b) that discloses the information previously
omitted from the prospectus in reliance upon Rule 415(a)(i)(x); the
Offerors will prepare and file with the Commission, promptly upon your
request, any amendments or supplements to the Registration Statement or
Prospectus (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations) that, in your opinion, may be necessary or
11
advisable in connection with your distribution of the Capital
Securities; and the Offerors will not file any amendment or supplement
to the Registration Statement or Prospectus (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations) to which
you shall reasonably object by notice to the Company after having been
furnished a copy a reasonable time prior to the filing.
(ii) The Offerors will advise the Underwriters,
promptly after they shall receive notice or obtain knowledge thereof,
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of the suspension of the
qualification of the Capital Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for
any such purpose; and the Offerors will promptly use their best efforts
to prevent the issuance of any stop order or to obtain its withdrawal
if such a stop order should be issued.
(iii) Within the time during which a prospectus
(including any term sheet within the meaning of Rule 434 of the Rules
and Regulations) relating to the Capital Securities is required to be
delivered under the Act, the Offerors will comply as far as it is able
with all requirements imposed upon it by the Act, as now and hereafter
amended, and by the Rules and Regulations, as from time to time in
force, so far as necessary to permit the continuance of sales of or
dealings in the Capital Securities as contemplated by the provisions
hereof and the Prospectus. If during such period any event occurs as a
result of which the Prospectus would include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing,
not misleading, or if during such period it is necessary to amend the
Registration Statement or supplement the Prospectus to comply with the
Act, the Offerors will promptly notify the Underwriters and will amend
the Registration Statement or supplement the Prospectus (at the expense
of the Company) so as to correct such statement or omission or effect
such compliance.
(iv) The Offerors will use their best efforts to
qualify the Capital Securities and the Junior Subordinated Debentures
for sale under the securities laws of such jurisdictions as the
Underwriters may reasonably designate and to continue such
qualifications in effect so long as required for the distribution of
the Capital Securities, except that the Offerors shall not be required
in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process in any state.
(v) The Offerors will furnish to the Underwriters
copies of the Registration Statement (three of which will be signed and
will include all exhibits), each of the Preliminary Prospectuses, the
Prospectus, and all amendments and supplements (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) to
such documents, in each case as soon as available and in such
quantities as each Underwriter may from time to time reasonably
request.
(vi) During a period of five years commencing with
the date hereof, the Company will furnish to the Underwriters copies of
all periodic and special reports
12
furnished to the stockholders of the Company and all information,
documents and reports filed with the Commission.
(viii) The Company will make generally available to
its security holders and holders of the Capital Securities as soon as
practicable, but in any event not later than 15 months after the end of
the Company's current fiscal quarter, an earnings statement (which need
not be audited) covering a 12-month period beginning after the
effective date of the Registration Statement that shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(viii) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is prevented
from becoming effective under the provisions of Section 8(a) hereof or
is terminated, will pay or cause to be paid (A) all expenses (including
transfer taxes allocated to the respective transferees) incident to the
performance of the obligations of each Offeror under this agreement,
(B) all expenses and fees (including, without limitation, fees and
expenses of each Offeror's accountants and counsel but, except as
otherwise provided below, not including fees of the Underwriter's
counsel) in connection with the preparation, printing, filing,
delivery, and shipping of the Registration Statement (including the
financial statements therein and all amendments, schedules, and
exhibits thereto), the Capital Securities, each Preliminary Prospectus,
the Prospectus, and any amendment thereof or supplement thereto, and
the printing, delivery, and shipping of this Agreement and other
underwriting documents, including Blue Sky Memoranda, (C) all filing
fees and fees and disbursements of the Underwriters' counsel incurred
in connection with the qualification of the Capital Securities for
offering and sale by you or by dealers under the securities or blue sky
laws of the states and other jurisdictions which you shall designate,
(D) the fees and expenses of any transfer agent or registrar, (E) the
filing fees incident to any required review by the National Association
of Capital Securities Dealers, Inc. ("NASD") of the terms of the sale
of the Capital Securities, (F) listing fees, if any, (G) the fees and
expenses of the Indenture Trustee, including the fees and disbursements
of counsel for the Indenture Trustee in connection with the Indenture
and Junior Subordinated Debentures, (H) the fees and expenses of the
Property Trustee, including the fees and disbursements of counsel for
the Property Trustee in connection with the Trust Agreement and the
Certificate of Trust, and (I) all other costs and expenses incident to
the performance of the Offerors' obligations hereunder that are not
otherwise specifically provided for herein. If the sale of the Capital
Securities provided for herein is not consummated by reason of action
by either Offeror pursuant to Section 8(a) hereof which prevents this
Agreement from becoming effective, or by reason of any failure, refusal
or inability on the part of either Offeror to perform any agreement on
its part to be performed, or because any other condition of your
obligations hereunder required to be fulfilled by either Offeror is not
fulfilled, the Company will reimburse you for all out-of-pocket
disbursements (including fees and disbursements of counsel) incurred by
the Underwriters in connection with their investigation, preparing to
market and marketing the Capital Securities or in contemplation of
performing their obligations hereunder. Neither Offeror shall in any
event be liable to you for loss of anticipated profits from the
transactions covered by this Agreement.
13
(ix) The Offerors will apply the net proceeds from
the sale of the Capital Securities to be sold by the Trust hereunder
for the purposes set forth in the Prospectus and will file such reports
with the Commission with respect to the sale of the Capital Securities
and the application of the proceeds therefrom as may be required in
accordance with Rule 463 of the Rules and Regulations.
(x) The Offerors have not taken and will not take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, or which has constituted,
the stabilization or manipulation of the price of any security of
either Offeror to facilitate the sale or resale of the Capital
Securities, and has not effected any sales of Common Stock which are
required to be disclosed in response to Item 701 of Regulation S-K
under the Act which have not been so disclosed in the Registration
Statement.
(xi) Neither Offeror will incur any liability for any
finder's or broker's fee or agent's commission in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(xii) The Offerors will inform the Florida Department
of Banking and Finance at any time prior to the consummation of the
distribution of the Capital Securities by you if it commences engaging
in business with the government of Cuba or with any person or affiliate
located in Cuba. Such information will be provided within 90 days after
the commencement thereof or after a change occurs with respect to
previously reported information.
5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy, as of the date hereof and at
the Closing Date (as if made at the Closing Date), of and compliance with all
representations, warranties and agreements of the Offerors contained herein, to
the performance by each Offeror of its obligations hereunder and to the
following additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 p.m., Central time, on the date of this Agreement, or such later
time and date as you shall approve and all filings required by Rules 424, 430A
and 434 of the Rules and Regulations shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereof shall have been issued and no proceedings for the issuance of such an
order shall have been initiated or threatened; and any request of the Commission
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) The Underwriters shall not have advised the Company or the
Trust that the Registration Statement or the Prospectus, or any amendment
thereof or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), contains an untrue statement of fact
which, in your opinion, is material, or omits to state a fact
14
which, in your opinion, is material and is required to be stated therein or
necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Trust, the Company nor any of its
Subsidiaries shall have incurred any material liabilities or obligations, direct
or contingent, or entered into any material transactions, or declared or paid
any dividends or made any distribution of any kind with respect to its capital
stock; and there shall not have been any change in the capital stock (other than
a change in the number of outstanding shares of Common Stock due to the issuance
of shares upon the exercise of outstanding options or warrants), or any material
change in the short-term or long-term debt of the Company, or any issuance of
options, warrants, convertible securities or other rights to purchase the
capital stock of the Company or any of its subsidiaries, or any material adverse
change or any development involving a prospective material adverse change
(whether or not arising in the ordinary course of business), in the general
affairs, condition (financial or otherwise), business, key personnel, property,
prospects, net worth or results of operations of the Trust or the Company and
its Subsidiaries, taken as a whole, that, in your judgment, makes it impractical
or inadvisable to offer or deliver the Capital Securities on the terms and in
the manner contemplated in the Prospectus.
(d) On the Closing Date, there shall have been furnished to
the Underwriters the opinion of Xxxxxxxxx & Xxxxxx, counsel for the Company,
dated the Closing Date and addressed to the Underwriters, to the effect that:
(i) Each of the Company and its Subsidiaries has been
duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. The
Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware
and is duly registered as a bank holding company under the BHC Act. The
deposit accounts of each of the Company's subsidiaries that is a bank
are insured by the FDIC, and, to the knowledge of such counsel, no
proceedings for the termination or revocation of such membership or
insurance are pending or threatened. Each of the Company and its
Subsidiaries has full corporate power and authority to own its
properties and conduct its business as currently being carried on and
as described in the Registration Statement and Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which its ownership or lease of real
property or the conduct of its business makes such qualification
necessary and in which the failure to so qualify would have a material
adverse effect upon the business, condition (financial or otherwise) or
properties of the Company and its subsidiaries, taken as a whole.
(ii) The statements in the Prospectus under the
caption "Description of the Capital Securities", "Description of Junior
Subordinated Debentures", "Description of Guarantee", and "Relationship
among the Capital Securities, the Junior Subordinated Debentures and
the Guarantee" insofar as such statements constitute matters of law
applicable to the Offerors or summaries of documents, fairly present
the information required to be included therein in all material
respects. All of the issued and outstanding
15
shares of the capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable, and the
holders thereof are not subject to personal liability by reason of
being such holders. Except as otherwise stated in the Registration
Statement and Prospectus, there are no preemptive rights or options,
warrants, agreements, contracts or other rights in existence to
purchase or acquire from the Company any shares of the capital stock of
the Company pursuant to the Company's charter, bylaws or any agreement
or other instrument known to such counsel to which the Company is a
party or by which the Company is bound. To the best of such counsel's
knowledge, neither the filing of the Registration Statement nor the
offering or sale of the Junior Subordinated Debentures or Capital
Securities as contemplated by this Agreement gives rise to any rights
for or relating to the registration of any shares of Common Stock or
other securities of the Company.
(iii) All of the issued and outstanding shares of
capital stock of each of the Company's Subsidiaries have been duly and
validly authorized and issued and are fully paid and nonassessable,
and, to the best of such counsel's knowledge, except as otherwise
described in the Registration Statement and Prospectus and except for
directors' qualifying shares, the Company owns of record and
beneficially, free and clear of any security interests, claims, liens,
proxies, equities or other encumbrances in the case of the Subsidiaries
set forth on Exhibit A attached hereto, that percentage of shares of
the issued and outstanding shares of such Subsidiaries' stock as is set
forth on such Exhibit A. To the best of such counsel's knowledge,
except as described in the Registration Statement and Prospectus, there
are no options, warrants, agreements, contracts or other rights in
existence to purchase or acquire from the Company or any of its
Subsidiaries any shares of the capital stock of any Subsidiary of the
Company.
(iv) All of the issued and outstanding Common
Securities of the Trust are owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
(v) The Trust Agreement has been duly qualified under
the Trust Indenture Act.
(vi) The Junior Subordinated Debentures are in the
form contemplated by the Indenture, have been duly authorized, executed
and delivered by the Company and, when authenticated by the Indenture
Trustee in the manner provided for in the Indenture and delivered
against payment therefor, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity.
(vii) The Junior Subordinated Debentures are
subordinate and junior in right of payment to all "Senior and
Subordinated Debt" (as defined in the Indenture) of the Company.
16
(viii) Neither the Company nor the Trust is an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the 1940 Act.
(ix) The statements set forth in the Prospectus under
the caption "Federal Income Tax Consequences" constitute a fair and
accurate summary of the matters addressed therein, based upon current
law and the assumptions stated or referred to therein.
(x) Under current law, the Trust will be classified
for United States federal income tax purposes as a grantor trust and
not as an association taxable as a corporation; accordingly, for United
States federal income tax purposes each beneficial owner of Capital
Securities will be treated as owning an undivided beneficial interest
in the Junior Subordinated Debentures, and stated interest on the
Junior Subordinated Debentures generally will be included in income by
a holder of Capital Securities at the time such interest income is paid
or accrued in accordance with such holder's regular method of tax
accounting.
(xi) For federal income tax purposes, (a) the Junior
Subordinated Debentures will constitute indebtedness of the Company and
(b) the interest on the Junior Subordinated Debentures will be
deductible by the Company on an economic accrual basis in accordance
with Section 163(e) of the Internal Revenue Code of 1986, as amended,
and Treasury Regulation Section 1.163-7.
(xii) To the best of such counsel's knowledge and
information after due inquiry, the Trust is not required to be
authorized to do business in any other jurisdiction and the Trust is
not a party to or otherwise bound by any agreement other than those
described in the Prospectus.
(xiii) The Trust Agreement has been duly authorized,
executed and delivered by the Company and the Administrative Trustees.
(xvi) To the best of such counsel's knowledge and
information after due inquiry, the Trust is not in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or any other instrument of which the Trust
is a party or by which it may be bound, or to which any of the property
or assets of the Trust is subject.
(xv) The Registration Statement has become effective
under the Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or,
to the knowledge of such counsel, threatened by the Commission.
(xvi) The descriptions in the Registration Statement
and Prospectus of statutes, and to the best of counsel's knowledge,
legal and governmental proceedings or
17
rulings, contracts and other documents are accurate in all material
respects and fairly present the information required to be shown; and
such counsel does not know of any statutes or legal or governmental
proceedings required to be described in the Prospectuses that are not
described as required, or of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or
included as exhibits to the Registration Statement that are not
described or included as required.
(xvii) The reports of the Company incorporated by
reference in the Registration Statement and the Prospectus or any
further amendment or supplement thereto made by the Company (other than
the financial statements, other financial data and related schedules
therein, as to which such counsel need express no opinion), when they
were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
(xviii) The Company has full corporate power and
authority and the Trust has full trust power and authority to enter
into this Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement to which it is a party and to issue
the Junior Subordinated Debentures and Capital Securities, as the case
may be, and to effect the transactions contemplated by this Agreement,
the Indenture, the Trust Agreement, the Guarantee Agreement and the
Expense Agreement to which it is a party, and each of this Agreement,
the Indenture, the Trust Agreement, the Guarantee Agreement and the
Expense Agreement is duly authorized, executed and delivered by the
Company and the Trust, as applicable, and constitutes a valid, legal
and binding obligation of the Company enforceable in accordance with
its terms (except as rights to indemnity hereunder may be limited by
federal or state securities laws and except as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity). The execution, delivery and performance of this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement,
the Capital Securities, the Common Securities, the Junior Subordinated
Debentures and the Guarantee and the consummation of the transactions
herein or therein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under,
any statute, rule or regulation, any agreement or instrument known to
such counsel to which the Company or the Trust is a party or by which
either is bound or to which any of their property is subject, the
Company's charter or bylaws, or the Trust's Certificate or any order or
decree known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or the Trust or any of its
respective properties, except for any breach, violation or default
which would not have a material adverse effect on the Company; and no
consent, approval, authorization or order of, or filing with, any court
or governmental agency or body is required for the execution, delivery
and performance of this Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement, the Expense Agreement, the Capital Securities,
the Junior Subordinated Debentures, or the Guarantee or for the
consummation of the transactions contemplated hereby or thereby,
including the issuance or sale of the Junior Subordinated Debentures by
the Company and the Common Securities and Capital Securities by the
Trust, except (a) such as may be
18
required under the Act, which has been obtained, or under state
securities or blue sky laws, and (b) the qualification of the Trust
Agreement, the Guarantee Agreement and the Indenture under the Trust
Indenture Act and the regulations thereunder.
(xix) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is in violation of its
respective charter or bylaws.
(xx) The Registration Statement and the Prospectus,
and any amendment thereof or supplement thereto (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations),
comply as to form in all material respects with the requirements of the
Act and the Rules and Regulations; and on the basis of conferences with
officers of the Company, examination of documents referred to in the
Registration Statement and Prospectus and such other procedures as such
counsel deemed appropriate, nothing has come to the attention of such
counsel that causes such counsel to believe that the Registration
Statement or any amendment thereof, at the time such Registration
Statement became effective and as of the Closing Date (including any
Registration Statement filed under Rule 462(b) of the Rules and
Regulations), contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (as of their respective dates and as of the Closing Date),
as amended or supplemented, includes any untrue statement of material
fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no
opinion as to the financial statements or other financial data included
in any of the documents mentioned in this clause.
(xxi) Such other matters as you may reasonably
request.
In rendering such opinion such counsel may rely (i) as to matters of
law other than Minnesota and federal law, upon the opinion or opinions of local
counsel provided that the extent of such reliance is specified in such opinion
and that such counsel shall state that such opinion or opinions of local counsel
are satisfactory to them and that they believe they and you are justified in
relying thereon and (ii) as to matters of fact, to the extent such counsel deems
reasonable upon certificates of officers of the Company and its subsidiaries and
of public officials provided that the extent of such reliance is specified in
such opinion.
(e) The favorable opinion, dated as of Closing Date, of
Xxxxxxxx, Xxxxxx & Finger, counsel to Wilmington Trust Company, as Property
Trustee under the Trust Agreement, Indenture Trustee under the Indenture, and
Guarantee Trustee under the Guarantee Agreement, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) Wilmington Trust Company is duly incorporated and
is validly existing in good standing as a banking corporation under the
laws of the State of Delaware.
19
(ii) Wilmington Trust Company has the power and
authority to execute, deliver and perform its obligations under the
Trust Agreement, the Indenture and the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and
the Guarantee Agreement have been duly authorized, executed and
delivered by Wilmington Trust Company and constitutes a legal, valid
and binding obligation of Wilmington Trust Company, enforceable against
Wilmington Trust Company, in accordance with its terms.
(iv) The execution, delivery and performance by
Wilmington Trust Company of the Trust Agreement, the Indenture and the
Guarantee Agreement do not conflict with or constitute a breach of the
charter or by-laws of Wilmington Trust Company.
(v) No consent, approval or authorization of, or
registration with or notice to, any governmental authority or agency of
the State of Delaware or the United States of America governing the
banking or trust powers of Wilmington Trust Company is required for the
execution, delivery or performance by the Wilmington Trust Company of
the Trust Agreement, the Indenture and the Guarantee Agreement.
(f) The favorable opinion, dated as of Closing Date, of
Xxxxxxxx, Xxxxxx & Finger, as special Delaware counsel for the Offerors, in form
and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act,
and all filings required as of the date hereof under the Delaware Act
with respect to the creation and valid existence of the Trust as a
business trust have been made.
(ii) Under the Trust Agreement and the Delaware Act,
the Trust has the trust power and authority to own property and to
conduct its business, all as described in the Prospectus.
(iii) The Trust Agreement constitutes a valid and
binding obligation of the Company and each of the Property Trustee and
the Administrative Trustees, and is enforceable against the Company and
each of the Property Trustee and the Administrative Trustees, in
accordance with its terms.
(iv) Under the Trust Agreement and the Delaware Act,
the Trust has the trust power and authority (i) to execute and deliver,
and to perform its obligations under, this Agreement, and (ii) to
issue, and to perform its obligations under, the Capital Securities and
the Common Securities.
(v) Under the Trust Agreement and the Delaware Act,
the execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its
20
obligations under this Agreement, have been duly authorized by all
necessary trust action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached
to the Trust Agreement as Exhibit E is an appropriate form of
certificate to evidence ownership of the Capital Securities. The
Capital Securities and the Common Securities have been duly authorized
by the Trust Agreement and are duly and validly issued and, subject to
the qualifications hereinafter expressed in this paragraph (vi), fully
paid and non-assessable undivided beneficial interests in the assets of
the Trust. The respective holders of the Capital Securities and the
Common Securities, as beneficial owners of the Trust, will be entitled
to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the respective
holders of the Capital Securities and the Common Securities may be
obligated, pursuant to the Trust Agreement, to make certain payments
under the Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act,
the issuance of the Capital Securities and the Common Securities is not
subject to preemptive or similar rights.
(viii) The issuance and sale by the Trust of the
Capital Securities and the Common Securities, the purchase by the Trust
of the Junior Subordinated Debentures, the execution, delivery and
performance by the Trust of this Agreement and the Guarantee Agreement,
the consummation by the Trust of the transactions contemplated by this
Agreement and compliance by the Trust with its obligations under this
Agreement do not violate (a) any of the provisions of the Certificate
of Trust or the Trust Agreement, or (b) any applicable Delaware law or
Delaware administrative regulation.
(g) On the Closing Date, there shall have been furnished such
opinion or opinions from ____________________________, counsel for the
Underwriters, dated the Closing Date and addressed to the Underwriters, with
respect to the formation of the Company, the validity of the Capital Securities,
the Indenture, the Guarantee Agreement, this Agreement, the Registration
Statement, the Prospectus and other related matters as the Underwriters
reasonably may request, and such counsel shall have received such papers and
information as they request to enable them to pass upon such matters.
(h) On the Closing Date you shall have received a letter from
Ernst & Young LLP, dated the Closing Date and addressed to the Underwriters,
confirming that they are independent public accountants within the meaning of
the Act and are in compliance with the applicable requirements relating to the
qualifications of accountants under Rule 2-01 of Regulation S-X of the
Commission, that the Trust is and will be treated as a consolidated Subsidiary
of the Company pursuant to generally accepted accounting principles, and
stating, as of the date of such letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more than
five days prior to the date of such letter), the conclusions and findings of
each said firm with respect to the financial information and other matters
covered by its letter
21
delivered to the Underwriters concurrently with the execution of this Agreement,
and the effect of the letter so to be delivered on the Closing Date shall be to
confirm the conclusions and findings set forth in such prior letter.
(i) On the Closing Date, there shall have been furnished to
you, a certificate, dated the Closing Date and addressed to you, signed by the
chief executive officer and by the chief financial officer of the Company, to
the effect that:
(i) The representations and warranties of the Company
in this Agreement are true and correct, in all material respects, as if
made at and as of the Closing Date, and the Offerors have complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) No stop order or other order suspending the
effectiveness of the Registration Statement or any amendment thereof or
the qualification of the Capital Securities for offering or sale has
been issued, and no proceeding for that purpose has been instituted or,
to the best of their knowledge, is contemplated by the Commission or
any state or regulatory body; and
(iii) The signers of said certificate have carefully
examined the Registration Statement and the Prospectus, and any
amendments thereof or supplements thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), and (A)
such documents contain all statements and information required to be
included therein, the Registration Statement, or any amendment thereof,
does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus, as
amended or supplemented, does not include any untrue statement of
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, (B) since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amended or supplemented prospectus which has not been so set forth, (C)
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Trust, the
Company nor any of its Subsidiaries has incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions, not in the ordinary course of business, or
declared or paid any dividends or made any distribution of any kind
with respect to its capital stock (other than dividends paid in the
ordinary course with respect to shares of the Company's Common Stock or
any of its Subsidiaries' common stock), and except as disclosed in the
Prospectus, there has not been any change in the capital stock (other
than a change in the number of outstanding shares of Common Stock due
to the issuance of shares upon the exercise of outstanding options or
warrants), or any material change in the short-term or long-term debt,
or any issuance of options, warrants, convertible securities or other
rights to purchase the capital stock, of the Company, or any of its
Subsidiaries, or any material adverse change or any development
involving a prospective material adverse change (whether or not arising
in the ordinary course of business), in the general affairs, condition
(financial or otherwise), business, key personnel, property, prospects,
net worth
22
or results of operations of the Trust or the Company and its
Subsidiaries, taken as a whole, and (D) except as stated in the
Registration Statement and the Prospectus, there is not pending, or, to
the knowledge of the Company or the Trust, threatened or contemplated,
any action, suit or proceeding to which the Trust, the Company or any
of its Subsidiaries is a party before or by any court or governmental
agency, authority or body, or any arbitrator, which might result in any
material adverse change in the condition (financial or otherwise),
business, prospects or results of operations of the Company and its
subsidiaries, taken as a whole.
(j) On the Closing Date, there shall have been furnished to
the Underwriters, a certificate, dated the Closing Date and addressed to the
Underwriters, signed by the Administrative Trustees, to the effect that:
(i) The representations and warranties of the Trust
in this Agreement are true and correct, in all material respects, as if
made at and as of the Closing Date, and the Trust has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) No stop order or other order suspending the
effectiveness of the Registration Statement or any amendment thereof or
the qualification of the Capital Securities for offering or sale has
been issued, and no proceeding for that purpose has been instituted or,
to the best of their knowledge, is contemplated by the Commission or
any state or regulatory body; and
(iii) The signers of said certificate have carefully
examined the Registration Statement and the Prospectus, and any
amendments thereof or supplements thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), and (a)
such documents contain all statements and information required to be
included therein, the Registration Statement, or any amendment thereof,
does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus, as
amended or supplemented, does not include any untrue statement of
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, (B) since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amended or supplemented prospectus which has not been so set forth, (C)
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, the Trust has not
incurred any material liabilities or obligations, direct or contingent,
or entered into any material transactions, not in the ordinary course
of business, or declared or paid any dividends or made any distribution
of any kind with respect to its capital securities, and except as
disclosed in the Prospectus, there has not been any change in the
capital securities, or any material change in the short-term or
long-term debt, or any issuance of options, warrants, convertible
securities or other rights to purchase the capital securities, of the
Trust or any material adverse change or any development involving a
prospective material adverse change (whether or not arising in the
ordinary course of business), in the general affairs, condition
(financial
23
or otherwise), business, key personnel, property, prospects, net worth
or results of operations of the Trust, and (D) except as stated in the
Registration Statement and the Prospectus, there is not pending, or, to
the knowledge of the Trust, threatened or contemplated, any action,
suit or proceeding to which the Trust is a party before or by any court
or governmental agency, authority or body, or any arbitrator, which
might result in any material adverse change in the condition (financial
or otherwise), business, prospects or results of operations of the
Trust.
(k) The Company shall have furnished to you and to your
counsel such additional documents, certificates and evidence as you or they may
have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors agree to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which you may become subject, under the Act or otherwise (including
in settlement of any litigation if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rules 430A and
434(d) of the Rules and Regulations, if applicable, any Preliminary Prospectus,
the Prospectus, or any amendment or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by it in connection with investigating or defending against
such loss, claim, damage, liability or action; provided, however, that the
Offerors shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Offerors by the Underwriters specifically for use
in the preparation thereof.
In addition to its other obligations under this Section 6(a), each of
the Company and the Trust agree that, as an interim measure during the pendency
of any claim, action, investigation, inquiry or other proceeding arising out of
or based upon any statement or omission, or any alleged statement or omission,
described in this Section 6(a), it will reimburse you on a monthly basis for all
reasonable legal fees or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Offerors' obligation to reimburse you
for such expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. To the extent that any
such
24
interim reimbursement payment is so held to have been improper, you shall
promptly return it to the party or parties that made such payment, together with
interest, compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing) announced
from time to time by Norwest Bank Minnesota, N.A. (the "Prime Rate"). Any such
interim reimbursement payments which are not made to you within 30 days of a
request for reimbursement shall bear interest at the Prime Rate from the date of
such request. This indemnity agreement shall be in addition to any liabilities
which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company and the Trust against any losses, claims, damages or liabilities to
which the Company and the Trust may become subject, under the Act or otherwise
(including in settlement of any litigation, if such settlement is effected with
your written consent), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by you for use in the preparation thereof,
and will reimburse the Company and the Trust for any legal or other expenses
reasonably incurred by the Company and the Trust in connection with
investigating or defending against any such loss, claim, damage, liability or
action.
(c) The Company agrees to indemnify the Trust against all
loss, liability, claim damage and expense whatsoever, which may become due from
the Trust under subsection (a).
(d) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that if, in the sole judgment of the Underwriters, it is advisable for the
underwriters as a group to be represented by separate
25
counsel, the Underwriters shall have the right to employ a single counsel to
represent all Underwriters who may be subject to a liability arising from any
claim in respect of which indemnity may be sought by the Underwriters under this
Section 6, in which event the reasonable fees and expenses of such separate
counsel shall be borne by the indemnifying party or parties and remitted to the
Underwriters for payment to such counsel as such fees and expenses are incurred
(in accordance with the provisions of the second paragraph in subsection (a)
above). An indemnifying party shall not be obligated under any settlement
agreement relating to any action under this Section 6 to which it has not agreed
in writing.
(e) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company or the Trust on the one hand and the Underwriters on the other
from the offering of the Capital Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Trust on the one hand
and the Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Trust on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Trust or the Underwriters and the parties' relevant intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Trust and you agree that it
would not be just and equitable if contributions pursuant to this subsection (e)
were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the first sentence of this subsection (e). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
which is the subject of this subsection (e). Notwithstanding the provisions of
this subsection (e), no Underwriter shall not be required to contribute any
amount in excess of the amount by which the total price at which the Capital
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters obligations in this Section (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
26
(f) The obligations of the Company under this Section 6 shall
be in addition to any liability which the Company and the Trust may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 6 shall be in addition to any
liability that the respective Underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company (including
any person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company or the Trust within the meaning of the Act.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Offerors herein or in
certificates delivered pursuant hereto, and the agreements of the Offerors and
you contained in Section 6 hereof shall remain operative and in full force and
effect regardless of any investigation made by you or on your behalf or any
controlling person thereof, or the Company or any of its officers, directors, or
controlling persons or the Trust or any if its trustees, or controlling persons
and shall survive delivery of, and payment for, the Capital Securities to and by
the Underwriters hereunder.
8. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective at 10:00 a.m.,
Central time, on the first full business day following the effective date of the
Registration Statement, or at such earlier time after the effective time of the
Registration Statement as the Underwriters in their discretion shall first
release the Capital Securities for sale to the public; provided, that if the
Registration Statement is effective at the time this Agreement is executed, this
Agreement shall become effective at such time as the Underwriters in their
discretion shall first release the Capital Securities for sale to the public.
For the purpose of this Section, the Capital Securities shall be deemed to have
been released for sale to the public upon release by you of the publication of a
newspaper advertisement relating thereto or upon release by the Underwriters of
telexes offering the Capital Securities for sale to securities dealers,
whichever shall first occur. By giving notice as hereinafter specified before
the time this Agreement becomes effective, the Underwriters, the Trust or the
Company may prevent this Agreement from becoming effective without liability of
any party to any other party, except that the provisions of Section 4(a)(viii)
and Section 6 hereof shall at all times be effective.
(b) The Underwriters shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time at or prior to
the Closing Date, if (i) either Offeror shall have failed, refused or been
unable, at or prior to the Closing Date, to perform any agreement on its part to
be performed hereunder, (ii) any other condition of your obligations hereunder
is not fulfilled, (iii) trading in securities on the New York Stock Exchange or
the Nasdaq Stock Market shall have been suspended or limited or minimum prices
shall have been established on such Exchange or System, (iv) a banking
moratorium shall have been declared by Federal, New York, North Dakota, South
Dakota or Colorado authorities, or (v) there has occurred any material adverse
change in the financial markets in the United States or an outbreak of major
hostilities (or an escalation thereof) in which the United States is involved, a
declaration of war by Congress, any other substantial national or international
calamity or any other event or
27
occurrence of a similar character shall have occurred since the execution of
this Agreement that, in your judgment, makes it impractical or inadvisable to
proceed with the completion of the sale of and payment for the Capital
Securities. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 4(a)(viii) and Section 6
hereof shall at all times be effective.
(c) If the Underwriters elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section,
the Company shall be notified promptly by the Underwriters by telephone or
telegram, confirmed by letter. If the Trust or the Company elects to prevent
this Agreement from becoming effective, the Underwriters shall be notified by
the Trust or the Company by telephone or telegram, confirmed by letter.
9. DEFAULT BY THE COMPANY. If the Trust shall fail at the Closing Date
to sell and deliver the number of Capital Securities which it is obligated to
sell hereunder or the Company fails to deliver the number of Junior Subordinated
Debentures required to be delivered pursuant to the Trust Agreement, then this
Agreement shall terminate without any liability on the part of any
non-defaulting party. No action taken pursuant to this Section shall relieve the
Trust or the Company so defaulting from liability, if any, in respect of such
default.
10. INFORMATION FURNISHED BY UNDERWRITERS. The statements set forth in
the last paragraph of the cover page and under the caption "Underwriting" in any
Preliminary Prospectus and in the Prospectus constitute the written information
furnished by the Underwriters or on their behalf referred to in Section 2 and
Section 6 hereof.
11. Notices. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to you, shall be mailed,
telegraphed or delivered to
______________________________________________________________; if to the
Company, shall be mailed, telegraphed or delivered to it at 000 Xxxx Xxxxxx,
Xxxxx, Xxxxx Xxxxxx 00000-0000, Attention: Xxxx X. Xxxxxxxx if to the Trust,
shall be mailed, telegraphed or delivered to it at Xxxxxx Square North, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration. All notices given by telegram shall be promptly confirmed by
letter. Any notice to the Trust shall also be copied to the Company at the
address previously stated, Attention: Xxxx X. Xxxxxxxx. Any party to this
Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns and the controlling persons, officers and
directors referred to in Section 6. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Capital Securities from
any of the Underwriters.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
28
[Signature Page Follows]
29
Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the Company
and you in accordance with its terms.
Very truly yours,
COMMUNITY FIRST BANKSHARES, INC.
By
----------------------------------
Its
-------------------------------
CFB CAPITAL III, IV or V
By
----------------------------------
Its
-------------------------------
Confirmed as of the date first
above mentioned.
By
-----------------------------------------
Managing Director
By
-----------------------------------------
Managing Director
30
SCHEDULE I
NUMBER OF
UNDERWRITER CAPITAL SECURITIES
----------- ------------------
EXHIBIT A
SUBSIDIARIES
