DRAFT
12/19/96
440,000 PREFERRED SECURITIES
UNITED CAPITAL TRUST I
% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION PREFERENCE OF $25 PER PREFERRED SECURITY)
PURCHASE AGREEMENT
January __, 1997
XXXXX XXXXXXX INC.
Xxxxx Xxxxxxx Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
United Community Bancshares, Inc., a Minnesota corporation (the "Company"),
and its fiduciary subsidiary, United Capital Trust I, 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 severally to you (the "Underwriter") an aggregate of 440,000 of
the Trust's _____% Cumulative Trust Preferred Securities, with a liquidation
preference of the $25.00 per preferred security (the "Preferred Securities"),
the terms of which are more fully described in the Prospectus (as hereinafter
defined). The Offerors propose that the Trust issue the Preferred 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 Preferred Securities will be guaranteed by the Company with
respect to distributions and payments upon liquidation, redemption and otherwise
(the "Guaranty") pursuant to a Guaranty Agreement (the "Guaranty Agreement"),
dated as of December ____, 1996, between the Company and Wilmington Trust
Company, as trustee (the "Guaranty 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 Preferred Securities will be used to
purchase junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures") issued by the Company pursuant to an Indenture, dated
as of January ___, 1996, between the Company and Wilmington Trust Company as
trustee (the "Indenture"). The net proceeds to the Company from the sale of the
Junior Subordinated Debentures will be used to provide a portion of the
financing to fund the acquisition of Park Financial Corporation and its wholly
owned subsidiary, Park National Bank (collectively "Park"), pursuant to that
certain Merger Agreement, dated October 7, 1996 and related Plan of Merger (the
"Merger Agreement") among Park, the Company, PFC Acquisition Corp. ("PFC
Acquisition") and the Park Financial Corporation Common Stock Revocable Trust
Under Agreement Dated May 28, 1980 (the "Trust").
The Offerors hereby confirm their agreement with respect to the sale of the
Preferred Securities to you as the Underwriter.
1. REGISTRATION STATEMENT AND PROSPECTUS. A registration statement on
Form S-1 (File No. 333-15067) with respect to the Preferred Securities, the
Guaranty 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; one or more amendments to such
registration statement have also been so prepared and have been, or will be, so
filed; 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 you.
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 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. 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 Preferred 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 any preliminary prospectus
included in the Registration 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.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Offerors represent and warrants to, and agrees with, you as
follows:
(i) No order preventing or suspending the use of any
Preliminary Prospectus or any preliminary prospectus included in the Common
Stock Registration Statement prior to the
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time it becomes or became effective under the Act and any prospectus with
respect to the Common Stock subject to completion as described in Rule 430A
or Rule 434 of the Rules and Regulations (the "Common Stock Preliminary
Prospectus" and collectively with the Preliminary Prospectus the
"Preliminary Prospectuses") has been issued by the Commission and each of
the Preliminary Prospectuses, 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 any of the Preliminary Prospectuses in reliance upon, and in
conformity with, written information furnished to the Company by you 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 you 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 the Common Stock Registration Statement, as hereinafter
defined, (collectively with the Registration Statement, the "Registration
Statements") and Prospectus and the Common Stock Prospectus, (as
hereinafter defined, collectively with the Prospectus, the "Prospectuses")
(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 Statements (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 Prospectuses (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 you 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 Statements have been declared effective by the
Commission, no stop order suspending the effectiveness of either of the
Registration Statements has been issued, and no proceeding for that purpose
has been initiated or, to the Offeror's knowledge, threatened by the
Commission.
(iii) The consolidated financial statements of the Company,
together with the notes thereto, set forth in the Registration Statements
and Prospectuses comply in all material respects with the requirements of
the 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 Statements and Prospectuses and subject, in the
case of unaudited financial statements, to normal year-end adjustments
which in the opinion of management are not material); and the supporting
schedules included in the Registration Statement present fairly the
information required to be stated therein; and the pro forma financial data
included in the Registration Statement and the Prospectus present fairly
the information shown therein, comply
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in all material respects with the requirements of the Act and the Rules and
Regulations with respect to pro forma financial statements, have been
properly compiled on the pro forma basis described therein and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein. No other financial statements or
schedules are required to be included in the Registration Statements or
Prospectuses. Each of McGladrey & Xxxxxx, LLP, Xxxxxxxxx & Xxxxxxxxx,
Ltd., and Xxxxxx, Xxxxx & Weishair & Co., LLP, each of which has expressed
its opinion with respect to the financial statements and schedules filed as
a part of the Registration Statements and included in the Registration
Statements and Prospectuses, are independent public accountants as required
by the Act and the Rules and Regulations.
(iv) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Minnesota 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 Company
owns all of the outstanding capital stock of Signal Bank, Inc. ("Signal")
and The Xxxxxxx County National Bank ("Goodhue"). Signal is a state
banking corporation duly organized, validly existing and in good standing
under the laws of the State of Minnesota, under the supervision of the
Department of Commerce (the "Department") and a member in good standing
under the FRB. All activities of Signal are among those permitted to
Minnesota state-chartered banks under the laws of the State of Minnesota
and federal law. Goodhue is a national banking association duly organized,
validly existing and in good standing under the laws of the United States,
under the supervision of the Office of the Comptroller of the Currency (the
"OCC"). The deposit accounts maintained at Signal and Goodhue are insured
by the Federal Deposit Insurance Corporation (the "FDIC") to the fullest
extent permitted by law, and no proceedings for the termination or
revocation of such membership or insurance are pending or, the knowledge of
the Company, threatened. Consumers Credit Corporation ("CCC") has been
duly organized and is validly existing as a corporation in good standing
under the laws of the state of Minnesota. 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 its condition
(financial or otherwise), earnings, business, prospects, assets, results of
operations or properties taken as a whole.
(v) 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 Pricing Agreement,
the Preferred 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 its 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
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as a corporation; and the Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles.
(vi) 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; 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 Preferred
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.
(vii) Except as set forth in the Prospectus, 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 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.
(viii) 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.
(ix) Each of this Agreement, the Indenture, the Trust
Agreement, the Guaranty and the Agreement as to Expenses and Liabilities
(the "Expense Agreement") has been duly authorized, executed and delivered
by the Company and the Trust and constitutes a valid, legal and binding
obligation of the Offerors, 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 Guaranty 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 December 6, 1996 (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 Guaranty 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
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the Preferred 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 Guaranty and the Expense Agreement, and
to authorize, issue and sell the Preferred Securities as contemplated by
this Agreement; and each of the Indenture, the Trust Agreement and the
Guaranty 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.
(x) The Merger Agreement has been duly authorized, executed
and delivered by the Company, and constitutes a valid, legal and binding
obligation of the Company enforceable in accordance with its terms, except
as 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 the Merger Agreement and the consummation of the
transactions therein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under, any
statute, any agreement or instrument to which the Company is a party or by
which it is bound or to which any of its property is subject, the Company's
charter or bylaws, or any order, rule, regulation or decree of any court or
governmental agency or body having jurisdiction over the Company or any of
the properties of the Company; no consent, approval, authorization or order
of, or filing with, any court or governmental agency or body is required
for the execution, delivery and performance of the Merger Agreement or for
the consummation of the transactions contemplated thereby.
(xi) All of the issued and outstanding shares of capital
stock of the Company, including the shares of Common Stock issued, or to be
issued, by the Company to investors in an offering of common stock (the
"Common Stock Offering"), are duly authorized and are, or will be at the
Closing Date, validly issued, fully paid and nonassessable, have been
issued, or will have been issued as of the Closing Date, in compliance with
all federal and state securities laws, were not, or will not be, issued in
violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities, and the holders thereof are not
subject to personal liability by reason of being such holders; and the
capital stock of the Company, including the Common Stock conforms to the
description thereof in the Registration Statements and Prospectuses.
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 or the
registration statement relating to the Common Stock Offering (the "Common
Stock Registration Statement"), including the related prospectus (the
"Common Stock Prospectus") nor the offering or sale of the Common Stock as
contemplated by the Common Stock Offering 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
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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 Preferred 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 of the Trust
Agreement and will in all material respects conform to the statements
relating thereto contained in the Prospectus; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights; and
holders of Preferred 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 Guaranty
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 Guaranty are
subordinated and junior in right of payment to all liabilities of the
Company and are, or will be, pari passu with the most senior preferred
stock hereafter issued by the Company.
(xvii) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all "Senior Debt" (as defined in the
Indenture) 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,
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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.
(xx) The Company and its subsidiaries have good and
marketable title to all 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; the property
held under lease by the Company and its subsidiaries is held by them under
valid, subsisting and enforceable leases with only such exceptions with
respect to any particular lease as do not interfere in any material respect
with the conduct of the business of the Company or its subsidiaries; the
Company and each of its subsidiaries owns or possesses all patents, patent
applications, trademarks, service marks, tradenames, trademark
registrations, service xxxx registrations, copyrights, licenses,
inventions, trade secrets and rights necessary for the conduct of the
business of the Company and its subsidiaries as currently carried on and as
described in the Registration Statement and Prospectus; except as stated in
the Registration Statement and Prospectus, 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 filed with the
State of Delaware on December 6, 1996 (the "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
of 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 Preferred Securities and the Common Stock other
than any Preliminary Prospectuses or the Prospectuses or other materials
permitted by the Act to be distributed by the Company.
(xxiv) Other than the Trust and the subsidiaries of the
Company listed in Exhibit 21 to the Registration Statement, the Company
owns no capital stock or other equity or ownership or proprietary interest
in any corporation, partnership, association, trust or other entity.
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(xxv) 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.
(xxvi) 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, the Merger
Agreement or the consummation of the transactions contemplated hereby or
thereby.
(xxvii) 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.
(xxviii) 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 and complied with the
applicable requirements of the FRB, OCC, Department or the FDIC, as the
case may be.
(xxix) The proceeds from the sale of the Preferred Securities
will constitute "tier 1" capital (as defined in 12 C.F.R. Part 325).
(xxx) 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.
(xxxi) Except for closing of the offering of Preferred
Securities contemplated hereby, all conditions precedent to the Company's
and Park's obligations to effect the transactions contemplated in the
Merger Agreement have been performed, complied with, or otherwise satisfied
or waived, and no other action is required in order to consummate the
transactions contemplated by the Merger Agreement except for delivery of
the proceeds of the sale of the Preferred Securities. If waived, any
condition so waived has been identified to the Underwriters.
(xxxii) The Company and its subsidiaries, and to the best
knowledge of the Company and its subsidiaries, Park have complied in all
material respects with all covenants and agreements set forth in the Merger
Agreement. To the best knowledge of the Company and its subsidiaries, each
of the representations and warranties in the Merger Agreement of Park is
true and correct.
(b) Any certificate signed by any officer of the Company or a trustee
of the Trust and delivered to you or to your counsel shall be deemed a
representation and warranty by the Company to you as to the matters covered
thereby.
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3. PURCHASE, SALE AND DELIVERY OF PREFERRED 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 440,000 Preferred Securities to you, and you agree to
purchase the Preferred Securities from the Trust at a purchase price per
Preferred Security of $ 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 Preferred 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 Preferred Security
determined by agreement between you and the Company for the Preferred Securities
to be delivered by the Trust hereunder at the Closing Date.
The Preferred Securities will be delivered by the Company to you
against payment of the purchase price therefor by certified or official bank
check or other next day funds payable to the Company at the offices of Xxxxx
Xxxxxxx Inc., Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx, or such other location as may be mutually acceptable, at 9:00 a.m.
Central time on the third (or if the Preferred Securities are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, on the fourth) full business day following the date hereof, or at such
other time and date as you and the Company determine pursuant to Rule 15c6-1(a)
under the Exchange Act, such time and date of delivery being herein referred to
as the "Closing Date." Delivery of the Preferred Securities may be made by
credit through full fast transfer to the accounts at The Depository Trust
Company designated by you. Certificates representing the Preferred 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, will
be made available for checking and packaging not later than 10:30 a.m., Central
time, on the business day next preceding the Closing Date at the offices of
Xxxxx Xxxxxxx Inc., Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx, or such other location as may be mutually acceptable.
The Company shall pay to the Underwriter a financial advisory fee
equal in amount to one percent (1%) of the gross proceeds from the sale of the
Preferred Securities ($.25 per Preferred Security). Such amount shall be
payable by means of an additional discount in such amount to, and at the time of
delivery of, the purchase price for the Shares.
4. COVENANTS.
(a) The Offerors jointly and severally covenant and agree with you 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
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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); 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 advisable in
connection with your distribution of the Preferred 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 you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Preferred 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 Preferred 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 Preferred 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 you and will
amend the Registration Statement or supplement the Prospectus (at the
expense of the Company) so as to correct such statement or omission or
effect such compliance.
(iv) The Offerors will use their best efforts to qualify the
Preferred Securities and the Junior Subordinated Debentures for sale under
the securities laws of such jurisdictions as you reasonably designate and
to continue such qualifications in effect so long as required for the
distribution of the Preferred 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 you copies of the
Registration Statements (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 you may from time to time
reasonably request.
(vi) During a period of five years commencing with the date
hereof, the Company will furnish to you copies of all periodic and special
reports furnished to the stockholders of the Company and all information,
documents and reports filed with the Commission.
-11-
(vii) The Company will make generally available to its
security holders and holders of the Preferred 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 your 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 Preferred 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 your counsel incurred in
connection with the qualification of the Preferred 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 and up to a
maximum of $50,000 of fees and disbursements of your counsel in connection
with the offering of the Preferred Securities, (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 Preferred Securities
Dealers, Inc. ("NASD") of the terms of the sale of the Preferred
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 Preferred 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 you in connection with your investigation, preparing to market
and marketing the Preferred Securities or in contemplation of performing
your obligations hereunder (including without limitation the possible
nonconsummation of the proposal transactions involving the acquisition of
Park Financial Corporation). Neither Offeror shall in any event be liable
to you for loss of anticipated profits from the transactions covered by
this Agreement.
(ix) The Offerors will apply the net proceeds from the sale
of the Preferred 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 Preferred Securities and the
application of the proceeds therefrom as may be required in accordance with
Rule 463 of the Rules and Regulations.
-12-
(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 Preferred 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 Preferred 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.
(xiii) Each Offeror will, and will cause each subsidiary to,
comply in all material respects with all covenants and agreements of the
Company and its subsidiaries contained in the Merger Agreement and use its
best efforts to consummate the transaction contemplated thereby.
5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. Your obligations 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 Underwriter 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 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
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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
Preferred Securities on the terms and in the manner contemplated in the
Prospectus.
(d) On the Closing Date, there shall have been furnished the opinion
of Xxxxxxxxxx & Xxxxx, counsel for the Company, dated the Closing Date and
addressed to you, to the effect that:
(i) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Minnesota and is duly registered as a bank holding
company under the BHC Act. The Company owns all of the outstanding capital
stock of Signal and Goodhue. Signal is a state banking corporation duly
organized and validly existing and in good standing under the laws of the
State of Minnesota. Goodhue is a national banking association duly
organized and validly existing and in good standing under the laws of the
United States. The deposit accounts maintained at Signal and Goodhue are
insured by the FDIC to the fullest extent permitted by law, 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 it owns or leases real property or in which
the conduct of its business makes such qualification necessary and in which
the failure to so qualify would have a material adverse effect upon the
business, condition (financial or otherwise) or properties of the Company
and its subsidiaries, taken as a whole.
(ii) The capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus under the
caption "Description of Preferred Securities." All of the issued and
outstanding shares of the capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable, and the
holders thereof are not subject to personal liability by reason of being
such holders. The Common Stock to be issued and sold by the Company in the
Common Stock Offering has been duly authorized and, when issued, delivered
and paid for in accordance with the terms of this Agreement and the Common
Stock Offering, will have been validly issued and will be fully paid and
nonassessable, and the holders thereof will not be subject to personal
liability by reason of being such holders. Except as otherwise stated in
the Registration Statement and Prospectus, there are no preemptive rights
or options, warrants, agreements, contracts or other rights in existence to
purchase or acquire from the Company any shares of the capital stock of the
Company pursuant to the Company's charter, bylaws or any agreement or other
instrument known to such counsel to which the Company is a party or by
which the Company is bound. To the best of such counsel's knowledge,
neither the filing of the Registration Statements nor the offering or sale
of the Junior Subordinated Debentures, Preferred Securities or Common Stock
as contemplated by this Agreement and the Common Stock Offering gives rise
to any rights for or relating to the registration of any shares of Common
Stock or other securities of the Company.
-14-
(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, or will own upon consummation of the Common Stock
Offering 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. 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 the Bankruptcy
Exceptions.
(vii) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all "Senior Debt" (as defined in the
Indenture) of the Company.
(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 "Certain 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 holder of Preferred Securities generally
will be considered the owner of an undivided interest in the Junior
Subordinated Debentures, and each holder will be required to include in its
gross income any original issue discount accrued with respect to its
allocable share of the Junior Subordinated Debentures.
(xi) For federal income tax purposes, (a) the Junior
Subordinated Dentures 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.
-15-
(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, the Property Trustee and the Administrative
Trustees.
(xiv) The Trust is not in violation of its Certificate of
Trust or the Trust Agreement or, to the best of such counsel's knowledge
and information after due inquiry, 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 Statements have become effective under
the Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of either of the Registration Statements 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 Statements and
Prospectuses of statutes, legal and governmental proceedings or rulings,
contracts and other documents are accurate 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
Statements or Prospectuses or included as exhibits to the Registration
Statements that are not described or included as required.
(xvii) Each of the Offerors has full corporate power and
authority to enter into this Agreement, the Indenture, the Trust Agreement,
the Guaranty Agreement and the Expense Agreement to which it is a party and
to issue the Junior Subordinated Debentures and Preferred Securities and to
effect the transactions contemplated by this Agreement, the Indenture, the
Trust Agreement, the Guaranty Agreement and the Expense Agreement to which
it is a party, and each of this Agreement, the Indenture, the Trust
Agreement, the Guaranty 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
Guaranty Agreement, the Preferred Securities, the Common Securities, the
Junior Subordinated Debentures and the Guaranty 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; and no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is
-16-
required for the execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guaranty Agreement, the Expense
Agreement, the Preferred Securities, the Junior Subordinated Debentures, or
the Guaranty 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
Preferred Securities by the Trust, except (a) such as may be required under
the Act or state securities or blue sky laws, each of which has been
obtained and (b) the qualification of the Trust Agreement, the Guaranty
Agreement and the Indenture under the Trust Indenture Act and the
regulations thereunder.
(xviii) Each of the Company and PFC Acquisition has full
corporate power and authority to enter into the Merger Agreement and to
effect the transactions contemplated by the Merger Agreement, and the
Merger Agreement has been duly authorized, executed and delivered by the
Company and PFC Acquisition 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 the Merger Agreement and the
consummation of the transactions therein contemplated will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, rule or regulation, any agreement or instrument
known to such counsel to which the Company, or PFC Acquisition is a party
or by which either is bound or to which any of their property is subject,
the Company's or PFC Acquisition's charter or bylaws, or any order or
decree known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or PFC Acquisition or any of its
respective properties; and no consent, approval, authorization or order of,
or filing with, any court or governmental agency or body is required for
the execution, delivery and performance of the Merger Agreement or for the
consummation of the transactions contemplated thereby, including the
issuance or sale of the Common Stock by the Company, except such as may be
required under the Act or state securities laws or regulatory approvals
contemplated by the Merger Agreement, each of which has been obtained.
(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 Statements and the Prospectuses, 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
Statements and Prospectuses 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 Statements or any
amendment thereof, at the time such Registration Statements 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 Prospectuses (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.
-17-
(xxi) To the best of such counsel's knowledge, there is no
pending or threatened action or proceeding arising out of or relating to
the Merger Agreement to which the Company or any subsidiary is a party or
to which any property of the Company or any subsidiary is subject.
(xxii) 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 Guaranty Trustee
under the Guaranty 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.
(ii) Wilmington Trust Company has the power and authority to
execute, deliver and perform its obligations under the Trust Agreement, the
Indenture and the Guaranty Agreement.
(iii) Each of the Trust Agreement, the Indenture and the
Guaranty 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 Guaranty
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 Guaranty 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
-18-
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 Preferred 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 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 Preferred Securities. The Preferred 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 Preferred 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 Preferred 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 Preferred Securities and the Common Securities is not
subject to preemptive or similar rights.
(viii) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the Trust of the
Junior Subordinated Debentures, the execution, delivery and performance by
the Trust of this Agreement and the Guaranty 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 Faegre & Xxxxxx LLP, your counsel, dated the Closing Date and
addressed to you, with respect to the formation of the Company, the validity of
the Preferred Securities, the Indenture, the Guaranty Agreement, this Agreement,
the Registration Statement, the Prospectus and other related matters as you
reasonably may
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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 each of
McGladrey & Xxxxxx, LLP, Xxxxxxxxx & Xxxxxxxxx, Ltd., and Xxxxxx, Xxxxx &
Weishair & Co., LLP, dated the Closing Date and addressed to you, confirming
that they are independent public accountants within the meaning of the Act and
are in compliance with the applicable requirements relating to the
qualifications of accountants under Rule 2-01 of Regulation S-X of the
Commission, that the Trust is and will be treated as a consolidated Subsidiary
of the Company pursuant to generally accepted accounting principals, 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 delivered to you 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 Statements or any amendment thereof or
the qualification of the Preferred Securities or the Common Stock 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 Statements and the Prospectuses, 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 Prospectuses, 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 Statements, 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 Statements and the Prospectuses,
neither the Trust, the Company nor any of its subsidiaries has incurred any
material liabilities or obligations, direct or contingent, or entered into
any material transactions, not in the ordinary course of business, or
declared or paid any dividends or made any distribution of any kind with
respect to its capital stock, and except as disclosed in the 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
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material change in the short-term or long-term debt, or any issuance of
options, warrants, convertible securities or other rights to purchase the
capital stock, of the Company, or any of its subsidiaries, or any material
adverse change or any development involving a prospective material adverse
change (whether or not arising in the ordinary course of business), in the
general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of the
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) 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.
(k) The Merger shall close prior to, or concurrently with the closing
of the offering of the Preferred Securities contemplated hereby.
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 you harmless 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 you for any legal or other expenses reasonably incurred by you 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 you 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
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possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, 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) You 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) or (b).
(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 your sole judgment, it is advisable for you to be represented by
separate counsel, you shall have the right to employ a single counsel to
represent you, in which event the reasonable fees and expenses of such separate
counsel shall be borne by the indemnifying party or parties and reimbursed to
you as incurred (in accordance with the provisions of the second paragraph in
subsection (a) above). An indemnifying party shall not be obligated under any
settlement agreement relating to any action under this Section 6 to which it has
not agreed in writing.
(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
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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 you on the
other from the offering of the Preferred 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 you 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 you 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 you, 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 and the
Trust or you 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), you shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Preferred Securities underwritten by you and distributed to
the public were offered to the public exceeds the amount of any damages that you
have 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.
(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 you within the meaning of the Act; and your obligations under this
Section 6 shall be in addition to any liability that you 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 Preferred Securities to and
by you 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
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effective time of the Registration Statement as you in your discretion shall
first release the Preferred 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 you in your discretion
shall first release the Preferred Securities for sale to the public. For the
purpose of this Section, the Preferred 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 you of telexes
offering the Preferred Securities for sale to Preferred Securities dealers,
whichever shall first occur. By giving notice as hereinafter specified before
the time this Agreement becomes effective, you, 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) You shall have the right to terminate this Agreement by giving
notice as hereinafter specified at any time at or prior to the Closing Date, if
(i) 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 or Minnesota 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 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 Preferred 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 you elect to prevent this Agreement from becoming effective or
to terminate this Agreement as provided in this Section, the Company shall be
notified promptly by you by telephone or telegram, confirmed by letter. If the
Trust or the Company elects to prevent this Agreement from becoming effective,
you 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 Preferred 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 UNDERWRITER. 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 you or on your 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 Xxxxx Xxxxxxx Inc., Xxxxx Xxxxxxx Tower, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; if to the Company, shall be mailed,
telegraphed or delivered to it at 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxx,
Xxxxxxxxx 00000, Attention: Xxxxxx X. X'Xxxxx if to the Trust, shall be mailed
lithographed or delivered to it at Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration.
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All notices given by telegram shall be promptly confirmed by letter. Any party
to this Agreement may change such address for notices by sending to the parties
to this Agreement written notice of a new address for such purpose.
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 Preferred Securities
from you.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
[Signature Page Follows]
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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,
UNITED COMMUNITY BANCSHARES, INC.
By __________________________________________
Its______________________________________
UNITED CAPITAL TRUST I
By __________________________________________
Its _____________________________________
Confirmed as of the date first
above mentioned.
XXXXX XXXXXXX INC.
By ________________________________
Managing Director
