EXHIBIT 1
__________ SHARES OF COMMON STOCK
TCF FINANCIAL CORPORATION
PURCHASE AGREEMENT
___________, 1997
[Name and Address of Managing Underwriter]
Ladies and Gentlemen:
TCF Financial Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to you (the "Underwriters") _____________ shares of its Common
Stock, $.01 per value per share (the "Shares" or the "Securities").
The Company hereby confirms its agreement with respect to the sale of the
Securities to the Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. A registration statement on
Form S-3 (File No. 333-______) with respect to the Securities, including a
preliminary form of prospectus, has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, and has been filed with the
Commission; Amendment No. ___ to such Registration Statement, including a
preliminary form of prospectus supplement with respect to the Securities, also
has been so prepared and filed; and one or more other amendments to such
registration statement also have been, or will be, so prepared and filed.
Copies of such registration statement and amendments and each related
preliminary prospectus and prospectus supplement have been delivered to the
Underwriters.
The Company has elected to rely upon Rule 430A of the Rules and Regulations
and, accordingly, 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 (as defined below) in
reliance upon Rule 430A. Such registration statement (including all schedules
and exhibits thereto) as amended at the time it 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 hereafter defined), such registration
statement as so amended (but only from and after the effectiveness of such
statement), including the 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 hereafter called the "Registration
Statement." The prospectus included in the Registration Statement (including
any prospectus supplement relating to the Securities) at the time it was
declared effective by the Commission is
hereafter called the "Prospectus," except that if any prospectus (including any
term sheet meeting the requirements of Rule 434 of the Rules and Regulations
provided by the Company for use with a prospectus subject to completion within
the meaning of Rule 434 in order to meet the requirements of Section 10(a) of
the Rules and Regulations) filed by the Company, with the Commission pursuant to
Rule 424(b) (and Rule 434, if applicable) of the Rules and Regulations or any
other such prospectus provided to the Underwriters by the Company for use in
connection with the offering of the Securities (whether or not required to be
filed by the Company with the Commission pursuant to Rule 424(b) of the Rules
and Regulations or otherwise) differs from the prospectus on file at the time
the Registration Statement was declared effective by the Commission, the term
"Prospectus" shall refer to such differing prospectus (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations) from and after the
time such prospectus is filed with the Commission or transmitted to the
Commission for filing pursuant to such Rule 424(b) (and Rule 434, if applicable)
or from and after the time it is first provided to the Underwriters by the
Company for such use. The term "Preliminary Prospectus" as used herein means
any preliminary prospectus included in the Registration Statement (including any
prospectus supplement relating to the Securities) prior to the time it became
effective under the Act and any prospectus (including any prospectus supplement
relating to the Securities) subject to completion as described in Rule 430A or
434 of the Rules and Regulations. Any reference herein to the Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act as of the date of such
Prospectus. Any reference to any amendment or supplement to the Prospectus
(including any supplement to the Prospectus) shall be deemed to refer to and
include any documents filed after the date of such Prospectus under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the several Underwriters as follows:
(a) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission or the securities authority of
any state or other jurisdiction in which the Shares are to be offered and
sold and each Preliminary Prospectus, at the time of filing thereof, did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The foregoing shall not apply to statements in or
omissions from any Preliminary Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by any
Underwriter specifically for use in the Prospectus as supplemented to
relate to the Securities.
(b) As of the time the Registration Statement (or any post-effective
amendment thereto) is or was declared effective by the Commission, upon the
filing or first delivery to the Underwriters of the Prospectus (or any
supplement to the Prospectus (including any term sheet meeting the
requirements of Rule 434)) and at the Closing Date, (i) the Registration
Statement and Prospectus (in each case, as so amended and/or supplemented)
conformed or will conform in all material respects to the requirements of
the Act and the Rules and Regulations, (ii) the Registration Statement (as
so amended) did not or will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (iii) the
Prospectus (as so supplemented) did not or will not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances in which they are or were made, not misleading; except
that the foregoing clauses (i), (ii) and (iii) shall not apply to
statements in or omissions from any such document in reliance upon, and in
conformity with, written information furnished to the Company by any
Underwriter specifically for use
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in the preparation thereof. The Registration Statement has been declared
effective by the Commission; no stop order suspending the effectiveness of
the Registration Statement has been issued; and no proceeding for that
purpose has been initiated or, to the Company's knowledge, threatened by
the Commission.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, or any amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter
expressly for use in the Prospectus as supplemented to relate to the
Securities.
(d) The Registration Statement and Prospectus do not and will not, as
of the applicable effective date in the case of the Registration Statement
and any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter expressly for use in the Prospectus as supplemented to relate
to the Securities.
(e) The consolidated financial statements of the Company, together
with the related NOTES thereto, set forth or incorporated by reference in
the Registration Statement and Prospectus comply in all material respects
with the requirements of the Act and fairly present the financial condition
of the Company and each of its direct or indirect subsidiaries (the
"Subsidiaries") or its predecessor or acquired businesses, as the case may
be, 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 therein), and the independent public
accountants whose reports are contained therein are independent public
accountants as required by the Act, the Exchange Act and the Rules and
Regulations. The financial statement schedules, if any, included in the
Registration Statement or incorporated by reference therein, or in any
post-effective amendment thereto, and the other financial and statistical
information included in the Prospectus in all material respects present
fairly and on a basis consistent with the books and records of the Company
the information stated therein.
(f) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement. This
Agreement has been duly authorized, executed and delivered by the Company,
and constitutes a valid, legal and binding obligation of the Company,
enforceable in accordance with its terms, except as rights to indemnity and
contribution hereunder may
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be limited by federal or state securities laws and subject as to
enforcement, to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles.
(g) The authorized, issued and outstanding capital stock of the
Company is as set forth under the caption "Description of TCF Capital
Stock" in the Prospectus. All of the outstanding shares of capital stock
have been duly authorized, validly issued and are fully paid and non-
assessable. The outstanding securities of the Company described in the
Registration Statement and Prospectus conform to such descriptions. On the
Closing Date hereinafter defined, the Shares to be delivered on such
Closing Date, upon issuance and delivery of and payment for the Shares to
be purchased from the Company as described herein and in the Prospectus,
will be duly authorized, validly issued, fully paid and nonassessable and
will conform with the description thereof contained in the Prospectus. All
offers and sales of the Company's capital stock prior to the date hereof
were at all relevant times duly registered under the Act or exempt from the
registration requirements of the Act and were duly registered or the
subject of an available exemption from the registration requirements of the
applicable state securities or Blue Sky laws. None of the issued shares of
capital stock of the Company or its predecessors or any of its Subsidiaries
has been issued or is owned or held in violation of any pre-emptive rights
of shareholders, and no preemptive rights or similar rights of any security
holders of the Company exist with respect to the sale of the Shares. The
Company has no agreement with any security holder as to which the Company
has not obtained waiver which gives such security holder the right to
require the Company to register under the Act any securities of any nature
owned or held by such person in connection with the transactions
contemplated by this Agreement. Upon payment for and delivery of the
Shares pursuant to this Agreement, the Underwriters will acquire good and
marketable title to the Shares, free and clear of all liens, encumbrances
or claims.
(h) Immediately after the sale of the Securities by the Company
hereunder, the aggregate amount of Securities which shall have been issued
and sold by the Company hereunder and other shares of Common Stock that
shall have been issued and sold pursuant to the Registration Statement will
not exceed the amount of securities registered under the Registration
Statement.
(i) The execution, delivery and performance of this Agreement, the
issuance and delivery of the Securities, and the consummation of the
transactions herein and therein contemplated will not conflict with, or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, (ii) any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which either
the Company or any Subsidiary is bound or to which any of their respective
property is subject, (iii) the Company's or any Subsidiary's charter or by-
laws, or (iv) any order, rule, regulation or decree of any court or
governmental agency or body having jurisdiction over the Company, any
Subsidiary or any of their respective properties, which breach, violation
or default reasonably could or might be expected, individually or in the
aggregate with other such breaches, violations or defaults, to result in a
material adverse effect on the financial condition, results of operations
or business of the Company and its Subsidiaries, taken as a whole. Other
than those already obtained or waivers from which have been obtained, no
consent, approval, authorization or order of, or filing with, any court or
governmental agency or body is required by the Company or any Subsidiary
for the execution, delivery and performance of this Agreement or the
Securities or for the consummation of the transactions contemplated hereby
and thereby, including the issuance, sale and delivery of the Securities by
the Company, except such as may be required under the Act or state
securities or blue sky laws.
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(j) Neither the Company nor any Subsidiary is (i) in violation of its
respective certificate of incorporation or charter or its respective by-
laws or other organizational documents, (ii) in default (nor has an event
occurred which with notice or passage of time or both would constitute such
a default) under any bond, indenture, mortgage, deed of trust, note, loan
or credit agreement or other material agreement or instrument to which any
of them is a party or by which any of them or any of their properties or
assets may be bound or affected, (iii) in violation of any order of any
court, arbitrator or governmental body or (iv) except as disclosed in the
Registration Statement and the Prospectus, in violation of or has violated
any franchise, grant, authorization, license, permit, judgment, decree,
order, statute, rule or regulation, which, in the case of clauses (i)-(iv)
of this sentence, would (individually or in the aggregate) (x) adversely
affect the legality, validity or enforceability of this Agreement or the
Securities, or any document related hereto or thereto or (y) have a
material adverse effect on the financial condition, results of operations
or business of the Company and the Subsidiaries, taken as a whole, or (z)
materially impair the Company's ability to perform fully on a timely basis
any obligations which it has under this Agreement or the Securities. The
Company or the Subsidiaries hold, and are operating in compliance with, all
franchises, grants, authorizations, licenses, permits, easements, consents,
certificates and orders of any governmental or self-regulatory body
required for the conduct of their respective businesses, except where any
such failure to hold or comply will not have a material adverse effect on
the Company and its Subsidiaries, taken as a whole. The descriptions in
the Registration Statement and the Prospectus of statutes, legal and
governmental proceedings or contracts and other documents are accurate in
all material respects and fairly present the information required to be
shown; and there are no statutes or legal or governmental proceedings
required to be described in the Registration Statement or the Prospectus
that are not described as required.
(k) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation with full corporate
power and authority to own or lease 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 other jurisdiction in which it
owns or leases real property of a nature, or transacts business of a type,
that would make such qualification necessary and in which the failure to so
qualify would have a material adverse effect on the financial condition,
results of operations or business of the Company and the Subsidiaries,
taken as a whole. Each of the Company and the Subsidiaries is in compliance
with the rules, regulations or other lawful directives established by each
regulatory authority having jurisdiction over the Company's or the
Subsidiary's respective business, conduct and affairs, including without
limitation the timely and accurate filing of all reports, statements,
documents, registrations, filings or submissions required to be filed by it
with any such regulatory authority, where the failure to comply with such
rules, regulations or other lawful directives reasonably could or might be
expected to result in a material adverse effect on the financial condition,
results of operations or business of the Company and its Subsidiaries,
taken as a whole.
(l) Except as disclosed in the Registration Statement and the
Prospectus, there is no action, suit, investigation or proceeding,
governmental or otherwise, pending or overtly threatened, to which the
Company or any Subsidiary is or may be a party or of which the business or
property of the Company or any Subsidiary is or may be the subject which,
in each case, is material to the Company and the Subsidiaries, taken as a
whole, or which seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance of the Securities or any of the other
transactions contemplated hereby, or which questions the legality or
validity of any such transactions or which seeks to recover damages
5
or obtain other relief in connection with any of such transactions; and
there is no contract or document of a character required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement which is not described or filed as required.
(m) All of the outstanding capital stock of each Subsidiary has been
duly authorized, validly issued and is fully paid and non-assessable, and
is owned directly or indirectly by the Company free and clear of any
security interest, claim, lien or other encumbrance.
(n) The Company and its Subsidiaries have good and marketable title
in fee simple to all real property and good title to all personal property
owned by them, in each case free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects, except
such as do not materially and adversely affect the value of those
properties which individually or in the aggregate are material to the
Company and its Subsidiaries taken as a whole and do not interfere with the
use made or proposed to be made of such property by the Company or any one
of its Subsidiaries, as the case may be; and any real property and
buildings held under lease by the Company or any of its Subsidiaries are
held under valid, subsisting and enforceable leases, with such exceptions
as are not material and do not interfere with the use made or proposed to
be made of such property and buildings by the Company or such Subsidiary.
(o) The Company and each of its Subsidiaries have filed all necessary
foreign, federal, state and local income and franchise tax returns and,
other than taxes the Company or its Subsidiaries are contesting in good
faith and for which the Company has established adequate reserves, have
paid all taxes shown as due thereon. Except as is otherwise expressly
stated in the Registration Statement or Prospectus, the Company has no
knowledge of any tax deficiency which might be asserted against it which
would materially and adversely affect the financial condition, results of
operations or business of the Company and its Subsidiaries, taken as a
whole.
(p) Since the date of the most recent audited financial statements
included in the Prospectus, neither the Company nor any of the Subsidiaries
has sustained any loss or interference with its business, which loss or
interference was material to the Company and its Subsidiaries, taken as a
whole, from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, other than as disclosed in or contemplated by the
Prospectus.
(q) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) neither the Company nor
any of the Subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into any transactions, not in the ordinary course
of business, that are material to the Company and the Subsidiaries taken as
a whole, (ii) the Company has not purchased any of its outstanding capital
stock or declared, paid or otherwise made any dividend or distribution of
any kind on its capital stock, (iii) there has not been any change in the
capital stock, long-term debt or, otherwise than in the ordinary course of
business consistent with past practice, short-term debt of the Company or
any of the Subsidiaries and (iv) there has not been any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the financial condition, results of operations or business
of the Company and the Subsidiaries taken as a whole, in each case other
than as disclosed in or contemplated by the Prospectus.
6
(r) Neither the Company nor any of its officers, directors or
affiliates has taken, directly or indirectly, any action designed to cause
or result in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale of the Shares.
(s) Neither the Company nor any of the Subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any such Subsidiary has, directly or
indirectly (i) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to political activity,
(ii) made any unlawful payment to foreign or domestic government officials
or employees or to foreign or domestic political parties or campaigns from
corporate funds, (iii) violated any provisions of the Foreign Corrupt
Practices Act of 1977, as amended, or (iv) made any bribe, rebate, payoff,
influence payment, kick back or other unlawful payment.
(t) To the Company's knowledge, the operations of the Company and its
Subsidiaries with respect to any real property currently leased or owned or
by any means controlled by the Company or any Subsidiary (the "Real
Property") are in compliance with all federal, state and local laws,
ordinances, rules and regulations relating to occupational health and
safety and the environment (collectively "Laws"), except where the failure
to so comply would not have a material adverse effect on the Company's
business or results of operations, and the Company and its Subsidiaries
have all licenses, permits and authorizations necessary to operate under
all Laws and are in compliance with all terms and conditions of such
licenses, permits and authorizations, except where such failure would not
have a material adverse effect on the Company's and its Subsidiaries'
business or results of operations taken as a whole; neither the Company nor
any Subsidiary has authorized, conducted or has knowledge of the
generation, transportation, storage, use, treatment, disposal or release of
any hazardous substance, hazardous waste, hazardous material, hazardous
constituent, toxic substance, pollutant, contaminate, petroleum product,
natural gas, liquefied gas or synthetic gas defined in or regulated under
any environmental law on, in or under any Real Property in violation of any
Laws, except where such violation would not have a material adverse effect
on the Company's business or results of operations; and there is no
material pending or threatened claim, litigation or any administrative
agency proceeding, nor has the Company or any Subsidiary received any
written or oral notice from any governmental entity or third party that (i)
alleges a violation of any Laws by the Company or any Subsidiary; (ii)
alleges the Company or any Subsidiary is a liable party under the
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. Section 9601 ET SEQ. or any state superfund law; (iii) alleges
possible contamination of the environment by the Company or any Subsidiary
or (iv) alleges possible contamination of the Real Property, except as to
each of the above, for any violations, liability or contamination that
would not have a material adverse effect on the Company's and its
Subsidiaries' business or results of operations taken as a whole.
(u) The Company and its Subsidiaries own or have the right to use all
patents, patent applications, trademarks, trademark applications, trade
names, service marks, copyrights, franchises, trade secrets, proprietary or
other confidential information and intangible properties and assets
(collectively "Intangibles") necessary to their respective businesses as
presently conducted or as the Prospectus indicates the Company or such
Subsidiary proposes to conduct; to the Company's knowledge, neither the
Company nor any Subsidiary has infringed or is infringing, and neither the
Company nor any Subsidiary has received notice of infringement with respect
to, asserted Intangibles of others; and, to the Company's knowledge, there
is no infringement by others of Intangibles of the
7
Company or any of its Subsidiaries which would have a material adverse
effect on the Company and its Subsidiaries taken as a whole.
(v) The Company and each of its Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the business in which they are
engaged by similarly situated companies; and neither the Company nor any
such Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a comparable cost, except as disclosed in the
Prospectus.
(w) Each of the Company and its Subsidiaries makes and keeps accurate
books, records and accounts, which, in reasonable detail, accurately and
fairly reflect the transactions and dispositions of its assets and
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general and specific authorization, (ii) transactions are
recorded as necessary to permit preparation of the Company's consolidated
financial statements in accordance with generally accepted accounting
principles and to maintain accountability for the assets of the Company,
(iii) access to the assets of the Company and each of its Subsidiaries is
permitted only in accordance with management's general and specific
authorization and (iv) the recorded accountability for assets of the
Company and each of its Subsidiaries is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(x) No Subsidiary is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distributions on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary or from transferring any
of such Subsidiary's property or assets to the Company or any other
Subsidiary.
(y) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in any manner that would cause it to become an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940.
(z) The Company's Common Stock is registered pursuant to Section
12(g) of the Exchange Act and is duly listed and traded on the New York
Stock Exchange (the "NYSE"). The Company has taken no action designed to
terminate, or likely to have the effect of terminating, the registration of
the Common Stock under the Exchange Act or listing of the Common Stock on
the NYSE, nor has the Company received any notification that the Commission
or the NYSE is contemplating terminating such registration or listing.
(aa) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Company.
(bb) The Company is in compliance with all provisions of Florida
Statutes Section 517.075 (Chapter 92-198, laws of Florida). Neither the
Company nor any Subsidiary does any business, directly or indirectly, with
the government of Cuba or, to the Company's knowledge, with any person or
entity located in Cuba.
8
(cc) The conditions for use of a Registration Statement on Form S-3
set forth in the General Instructions to Form S-3 have been satisfied with
respect to the Company and the transactions contemplated by this Agreement
and the Registration Statement.
(dd) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as
to the matters covered thereby.
(ee) Other than as contemplated herein, the Company has not incurred
any liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Company agrees to issue and sell the Shares to the Underwriters, and
the Underwriters agree to purchase the respective numbers of Shares set
forth opposite each Underwriter's name in Schedule I hereto. The purchase
price for each Share shall be $ __________, which shall reflect an
Underwriting Discount of $ __________ payable to the Underwriters. The
obligation of each Underwriter to the Company shall be to purchase from the
Company that number of Shares set forth opposite the name of such
Underwriter in Schedule I hereof. In making this Agreement, each
Underwriter is contracting severally and not jointly. Except as provided
in paragraph (b) of this Section 3 and in Section 8 hereof, the agreement
of each Underwriter is to purchase only its respective number of Shares as
specified in Schedule I.
The Shares will be delivered by the Company to Xxxxx Xxxxxxx Inc. for
each Underwriter's account against payment of the purchase price therefor
by wire transfer of next day funds to the account designated by 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., Minneapolis time, on the third (or,
if the Shares are priced, as contemplated by Rule 15c6-1(c) promulgated
pursuant to the Exchange Act, after 4:30 p.m. Washington, D.C. time on the
date of this Agreement, the fourth) full business day following the date
hereof, or at such other time and date as the Underwriters and the Company
determine pursuant to Rule 15c6-1(a) promulgated pursuant to the Exchange
Act, such time and date of delivery being herein referred to as the
"Closing Date." At the option of the Underwriters, delivery of the Shares
shall be made by credit through full fast transfer to the accounts at The
Depository Trust Company designated by the Underwriters.
(b) It is understood that each Underwriter may (but shall not be
obligated to) make payment to the Company on behalf of another Underwriter
for the Securities to be purchased by such Underwriter. Nothing herein
contained shall constitute any of the Underwriters an unincorporated
association or partner with the Company or with each other.
(c) The Underwriters propose to make a public offering of the Shares
directly to the public (which may include selected dealers and special
purchasers) as soon as the Underwriters deem practicable after the
Registration Statement becomes effective, at the initial public offering
price as set forth on the cover page of the Prospectus, subject to the
terms and conditions of this Agreement and in accordance with the
Prospectus. Such concessions from the public offering price may be allowed
to
9
selected dealers and other members of the National Association of
Securities Dealers, Inc. as the Underwriters may determine, and the
Underwriters will furnish the Company with such information about the
distribution arrangements as may be necessary for inclusion in the
Registration Statement. It is understood that the public offering price
and concessions may vary after the initial public offering.
4. COVENANTS. The Company covenants and agrees with the Underwriters as
follows:
(a) The Company will use its best efforts to cause any post-effective
amendments to the Registration Statement to become effective as promptly as
possible; the Company will notify the Underwriters promptly of the time
when any post-effective amendment to the Registration Statement has become
effective or any supplement to the Prospectus (including any term sheet
with 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 for 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. The Company will prepare and
file with the Commission, promptly upon the request of any Underwriter, 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 the reasonable opinion of such Underwriter, may be
necessary or advisable in connection with the distribution of the
Securities by the Underwriters; and the Company will not file, at any time
from the date hereof to the Closing Date, 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) or any document
incorporated by reference therein to which any Underwriter shall reasonably
object by notice to the Company after having been furnished a copy a
reasonable time prior to the filing.
(b) The Company will advise the Underwriters, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; and the Company will
promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such a stop order should be issued.
(c) Within the time during which a prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) relating
to the Securities is required to be delivered under the Act, the Company
will comply as far as it is able with all requirements imposed upon it by
the Act, as now and hereafter amended, and by the Rules and Regulations, as
from time to time in force, so far as necessary to permit the continuance
of sales of or dealings in the Securities as contemplated by the provisions
hereof and the Prospectus. If during such period any event occurs as a
result of which the Prospectus would include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend the
Registration Statement or supplement the Prospectus to comply with the Act,
the Company will promptly notify the Underwriters and will amend the
Registration Statement or supplement the Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect such
compliance.
10
(d) The Company will use its best efforts to qualify the Securities
for sale under the securities laws of such jurisdictions as the
Underwriters may reasonably designate and to continue such qualifications
in effect so long as required for the distribution of the Securities,
except that the Company shall not be required in connection therewith to
qualify as a foreign corporation or to execute a general consent to service
of process in any state. In each jurisdiction in which the NOTES shall
have been qualified as above provided, the Company will make and file such
statements and reports as may be identified as requiring post-sale filings
in any blue sky memoranda delivered in connection with the offer and sale
of the NOTES contemplated hereby or as otherwise reasonably requested by
the Underwriters or officials of such jurisdictions.
(e) The Company will furnish to you copies of the Registration
Statement (two of which will be manually signed and will include all
exhibits), each Preliminary Prospectus, the Prospectus, and all amendments
and supplements (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations) to such documents, in each case as soon as
available and in such quantities as each Underwriter may from time to time
reasonably request.
(f) For a period of no less than five years from the date hereof, the
Company will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act and furnish to the Underwriters copies of all such reports and any
definitive proxy or information statements, all communications with the
stockholders of the Company and all information, documents and reports
filed with the National Association of Securities Dealers, Inc., the NYSE
or any OTHER SECURITIES exchange.
(g) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15 months after the
end of the Company's current fiscal quarter, an earnings statement (which
need not be audited) covering a 12-month period beginning after the
effective date of the Registration Statement that shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(h) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming
effective under the provisions of Section 9(a) hereof or is terminated,
will pay or cause to be paid (i) all expenses (including transfer taxes
allocated to the respective transferees) incurred in connection with the
delivery to the Underwriters of the Securities, (ii) all expenses and fees
(including, without limitation, fees and expenses of the Company's
accountants and counsel but, except as otherwise provided below, not
including fees and expenses of the Underwriters' counsel) in connection
with the preparation, printing, filing, delivery, and shipping of the
Registration Statement (including the financial statements therein and all
amendments, schedules and exhibits thereto), the Securities, each
Preliminary Prospectus, the Prospectus, and any amendment thereof or
supplement thereto, and underwriting documents, including Blue Sky
Memoranda, (iii) all filing fees and reasonable fees and disbursements of
the Underwriters' counsel incurred in connection with the qualification of
the Securities for offering and sale by the Underwriters or by dealers
under the securities or blue sky laws of the states and other jurisdictions
which the Underwriters shall designate in accordance with Section 4(d)
hereof, (iv) the fees and expenses of the Trustee and counsel for the
Trustee, (v) the filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities, (vi) listing fees, and (vii) all other
11
reasonable costs and expenses incident to the performance of its
obligations hereunder that are not otherwise specifically provided for
herein. If the sale of the Securities provided for herein is not
consummated by reason of action by the Company pursuant to Section 9(a)
hereof which prevents this Agreement from becoming effective, or by reason
of any failure, refusal or inability on the part of the Company to perform
any material agreement on its part to be performed, or because any other
material condition of the Underwriters' obligations hereunder required to
be fulfilled by the Company is not fulfilled, the Company will reimburse
the several Underwriters for all reasonable out-of-pocket disbursements
(including fees and disbursements of counsel) incurred by the Underwriters
in connection with their investigation, preparing to market and marketing
the Securities or in contemplation of performing their obligations
hereunder. The Company shall not in any event be liable to any of the
Underwriters for loss of anticipated profits from the transactions covered
by this Agreement.
(i) The Company will apply the net proceeds from the sale of the
Securities to be sold by it hereunder for the purposes set forth in the
Prospectus.
(j) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(k) For so long as the delivery of a prospectus is required in
connection with the offering, sale and distribution of the Securities, the
Company will file on a timely basis such registration statements and other
filings and take such other action as is required pursuant to the
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder.
(l) For a period of five years from the date hereof, the Company will
furnish to each of you, upon request, the reports required to be filed with
the Trustee pursuant to the INDENTURE, concurrently with such filing.
(m) The Company will cause the Securities to be listed on the New
York Stock Exchange, Inc. upon issuance of the Securities and will use its
best efforts to cause the Securities to be so listed as long as the
Securities remain outstanding.
(n) The Company will inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution of the
Securities by the Underwriters if it commences engaging in business with
the government of Cuba or with any person or affiliate located in Cuba.
Such information will be provided within 90 days after the commencement
thereof or after a change occurs with respect to previously reported
information.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters hereunder are subject to the accuracy, as of the date
hereof and at the Closing Date (as if made at the Closing Date), of and
compliance with all representations, warranties and agreements of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Minneapolis time, on the date of this Agreement, or at such
later time and date as the Underwriters shall approve and all filings
required by Rules 424, 430A and 434 of the Rules and Regulations shall have
12
been timely made; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereof shall have been issued; 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 the Underwriters' satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto (including any term sheet within the meaning of Rule 434
of the Rules and Regulations), contains an untrue statement of fact which
in the reasonable opinion of any Underwriter, is material, or omits to
state a fact which, in the reasonable opinion of any Underwriter, is
material and is required to be stated therein or necessary to make the
statements therein not misleading.
(c) Except as contemplated in the Registration Statement and the
Prospectus, subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the Company
nor any Subsidiary shall have 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 there shall not have been any change in the capital
stock (other than capital stock issued upon exercise of outstanding stock
options), or any material change in the short-term or long-term debt of the
Company, or any issuance of options, warrants, convertible securities or
other rights to purchase the capital stock of the Company or any
Subsidiary, or any material adverse change, or any development involving a
prospective material adverse change, in the general affairs, condition
(financial or otherwise), business, key personnel, property, prospects, net
worth or results of operations of the Company and the Subsidiaries,
considered as a whole, that, in your judgment, makes it impractical or
inadvisable to offer or deliver the Securities on the terms and in the
manner contemplated in the Prospectus.
(d) On the Closing Date, there shall have been furnished to the
Underwriters, the opinion of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A., counsel for
the Company, dated the Closing Date and addressed to the Underwriters, to
the effect that:
(i) Each of the Company and its Subsidiaries has been duly
organized and is validly existing as a corporation or federal savings
bank in good standing under the laws of its jurisdiction of
incorporation or charter; has the requisite corporate power to own,
lease and operate its properties and conduct its business as described
in the Prospectus; and is duly qualified to do business as a foreign
corporation or association under the corporation or banking law of,
and is in good standing as such in, every jurisdiction wherein the
ownership or leasing of its properties or the conduct of its business
requires such qualification and in which the failure to be qualified
or in good standing would have a material adverse effect on the
business of the Company and the Subsidiaries considered as a whole.
The Company has no subsidiaries other than those listed in Exhibit
22.1 to the Registration Statement. TCF Bank Savings fsb is a member
in good standing of the Federal Home Loan Bank of Des Moines and has
been issued a certificate stating that it is an institution with
accounts insured by the Federal Deposit Insurance Corporation in
accordance with the rules and regulations of the Office of Thrift
Supervision, and, to the knowledge of such counsel, no proceedings for
the termination or revocation of such membership or insurance are
pending or threatened.
13
(ii) The number of authorized, issued and outstanding shares of
capital stock of the Company is as set forth in the Prospectus and all
issued and outstanding shares of capital stock of the Company are, and
the Shares, upon issuance and delivery and payment therefor in the
manner herein described, will be duly authorized, validly issued,
fully paid and nonassessable. Based upon a review of the Company's
Restated Certificate of Incorporation, Bylaws, corporate minute books,
material contracts (including those filed as exhibits to the
Registration Statement) and such other materials as such counsel deems
necessary, no preemptive rights or registration rights, contractual or
otherwise, of securities holders of the Company exist with respect to
the issuance or sale of the Shares by the Company pursuant to this
Agreement and there are no outstanding rights to require registration
of shares of Common Stock or other securities of the Company because
of the filing of the Registration Statement (except such rights as to
which adequate waiver has been obtained). The Shares conform in all
material respects to the description concerning them made in the
Prospectus and such description accurately sets forth the description
concerning them required to be set forth in the Prospectus.
(iii) All of the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are fully
paid and non-assessable and (except as otherwise stated or reflected
in the Prospectus) are owned of record and, to such counsel's
knowledge, beneficially, by the Company or another Subsidiary and are
not, to such counsel's knowledge, subject to any security interest,
other encumbrance or adverse claim.
(iv) The certificates evidencing the Shares comply as to form
with the applicable provisions of Delaware corporate laws.
(v) The Company has full corporate right, power, and authority
to enter into this Agreement, and this Agreement has been duly and
validly authorized, executed, and delivered by or on behalf of, and
constitutes the valid and binding obligation of, the Company except as
rights of indemnification may be limited by federal or state
securities laws or principles of public policy and except as
enforcement may be limited under bankruptcy, insolvency, or other
similar laws affecting enforcement of creditors' rights generally, by
judicial limitations on the right of specific performance, and except
that such counsel need express no opinion as to the availability of
equitable remedies.
(vi) The execution and delivery of this Agreement and the
execution and issuance of the certificates representing the Shares are
not in contravention of any of the provisions of any note, INDENTURE,
mortgage, deed of trust, agreement or other instrument known to such
counsel to which the Company or any of its Subsidiaries is a party or
by which it is bound and which is material to the business of the
Company.
(vii) The Registration Statement has become effective under the
Act and, to the best knowledge of such counsel, no stop orders
suspending the effectiveness of the Registration Statement have been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act.
(viii) All contracts and other documents described in the
Registration Statement and Prospectus conform in all material respects
to such descriptions. All descriptions of legal or
14
governmental proceedings and all descriptions of agreements,
contracts, leases and other documents contained in the Registration
Statement or Prospectus are accurate in all material respects. To the
best knowledge of such counsel, there are (1) no agreements,
contracts, leases or documents of a character required to be described
or referred to in the Registration Statement or Prospectus or to be
filed as an exhibit to the Registration Statement which are not
described or referred to therein and filed as required, and (2) no
legal or governmental proceedings required to be described in the
Registration Statement or Prospectus which are not so described as
required.
(ix) No authorization, approval or consent of any governmental
authority or agency is necessary in connection with the issuance and
sale of the Securities as contemplated under this Agreement, except
such as may be required under the Act or under state or OTHER
SECURITIES or Blue Sky laws in connection with the purchase and
distribution of the same.
(x) The Company or any of its Subsidiaries owns or possesses
all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets, and rights necessary
for and material to the conduct of its business as it is currently
being carried on and as described in the Prospectus and, to the best
of such counsel's knowledge, except as described in the Prospectus,
has not received any notice of conflict with the asserted rights of
others in respect thereof.
(xi) There are no legal or governmental proceedings pending
or,to the best knowledge of such counsel, after due inquiry,
threatened against the Company or any of its Subsidiaries of a
character which are required to be disclosed, pursuant to the Act and
the applicable Rules and Regulations, in the Registration Statement
which are not so disclosed.
(xii) Except as is otherwise expressly stated in the
Registration Statement or Prospectus, there are no liens and
encumbrances which are material in the aggregate or materially affect
the value of any material property of the Company or its Subsidiaries
or materially interfere with the conduct of the business of the
Company or its Subsidiaries and each of the Company and its
Subsidiaries has valid and binding leases to all of the real property
described in the Registration Statement and Prospectus as under lease
to it with such exceptions as do not materially interfere with the
conduct of its business.
(xiii) Neither the Company nor any of its Subsidiaries is in
violation of any law, ordinance, governmental rule or regulation, or
court decree to which it may be subject, or has failed to obtain any
license, permit, franchise, or other governmental authorization
necessary to the ownership of its property or to the conduct of its
business as it is presently being carried on and as described in the
Prospectus, which violation or failure to obtain is likely to have any
material adverse effect on its general affairs, condition (financial
or other), business, prospects, properties, net worth, or results of
operations.
(xiv) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial statements
and information derived therefrom and supporting financial data
included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the applicable Rules and Regulations, and, to the best of
such counsel's knowledge, the conditions for use of
15
a registration statement on Form S-3 for the distribution of the
Securities have been satisfied with respect to the Company.
(xv) In connection with such counsel's representation,
investigation and due inquiry of the Company in the preparation of the
Registration Statement, nothing has come to the attention of such
counsel which causes such counsel to believe that the Registration
Statement or Prospectus (except as to the financial information as
aforesaid) contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading.
In expressing the foregoing opinion, as to matters of fact relevant to
conclusions of law, counsel may rely, to the extent that he deems proper, upon
certificates of public officials and of responsible officers of the Company.
(e) On the Closing Date, there shall have been furnished to the
Underwriters, such opinion or opinions from ____________________, counsel
for the Underwriters, dated the Closing Date and addressed to the
Underwriters, with respect to the formation of the Company, the validity of
the Securities, the Registration Statement, the Prospectus and other
related matters as the Underwriters reasonably may request, and such
counsel shall have received such papers and information as they request to
enable them to pass upon such matters.
(f) On the Closing Date the Underwriters shall have received letters
from KPMG Peat Marwick LLP, dated the Closing Date and addressed to the
Underwriters, confirming that they are independent public accountants
within the meaning of the Act and are in compliance with the applicable
requirements relating to the qualifications of accountants under Rule 2-01
of Regulation S-X of the Commission, and stating, as of the date of such
letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than five days prior to the date
of such letter), the conclusions and findings of said firm with respect to
the financial information and other matters covered by its letter delivered
to the Underwriters concurrently with the execution of this Agreement, and
the effect of the letter so to be delivered on the Closing Date shall be to
confirm the conclusions and findings set forth in such prior letter.
(g) On the Closing Date, there shall have been furnished to the
Underwriters a certificate, dated the Closing Date and addressed to the
Underwriters, signed by the 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 Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) To the best of their knowledge, no stop order or other
order suspending the effectiveness of the Registration Statement or
any amendment thereof or the qualification of the Securities for
offering or sale has been issued, and, to the best of their knowledge,
no proceeding
16
for that purpose has been instituted or is contemplated by the
Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined
the Registration Statement and the Prospectus, and any amendments
thereof or supplements thereto (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), and (A) such
documents contain all statements and information required to be
included therein, the Registration Statement, or any amendment
thereof, does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented, does not include any untrue
statement of material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading, (B) since the effective date of
the Registration Statement, there has occurred no event required to be
set forth in an amended or supplemented prospectus which has not been
so set forth, (C) except as disclosed in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor any
Subsidiary 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, or any material change in the short-term
or long-term debt, or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock of the
Company or any Subsidiary, or any material adverse change, or any
development involving a prospective material adverse change, in the
general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of
the Company and the Subsidiaries, considered as a whole, and (D)
except as stated in the Registration Statement and the Prospectus,
there is not pending, or, to the knowledge of the Company, threatened
or contemplated, any action, suit or proceeding to which the Company
or any Subsidiary 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 the
Subsidiaries, considered as a whole.
(h) The Company shall have furnished to the Underwriters and their
counsel such additional documents, certificates and evidence as the
Underwriters or their counsel may have reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters. The Company will furnish the Underwriters with such
conformed copies of such opinions, certificates, letters and other
documents as the Underwriters shall reasonably request.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise (including in settlement of any litigation if such settlement is
effected with the written consent of the Company), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
17
material fact contained in the Registration Statement or incorporated
therein by reference, including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rules 430A
and 434(d) of the Rules and Regulations, if applicable, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by it
in connection with investigating or defending against such loss, claim,
damage, liability or action; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by the Underwriters
specifically for use in the preparation thereof; provided further, however,
that the Company shall not be liable to any Underwriter in respect of any
untrue statement or alleged untrue statement contained in, or omission or
alleged omission from, any Preliminary Prospectus to the extent that (i)
the Prospectus did not contain such untrue statement or alleged untrue
statement or omission or alleged omission giving rise to such loss, claim,
damage, liability or action, (ii) the Prospectus was not sent or given to
the purchaser of the Shares in question at or prior to the time at which
the written confirmation of the sale of Shares was sent or given to such
person, and (iii) the failure to deliver such Prospectus was not the result
of the Company's non-compliance with its obligations under Section 4(e)
hereof.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), 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 thereto, in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter, specifically for use in the preparation
thereof, and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending against any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve the indemnifying
party from any liability that it may have to any indemnified party
otherwise than under such subsection or unless and to the extent that the
indemnifying party is substantially prejudiced thereby. 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
18
in, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under such subsection for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that if, in the sole judgment of the
Underwriters, it is advisable for the Underwriters to be represented as a
group by separate counsel, the Underwriters shall have the right to employ
a single counsel to represent all Underwriters who may be subject to a
liability arising from any claim in respect of which indemnity may be
sought by the Underwriters under paragraph (a) of this Section 6, in which
event the reasonable fees and expenses of such separate counsel shall be
borne by the indemnifying party or parties and remitted to the Underwriters
for payment to such counsel as such fees and expenses are incurred. 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.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relevant intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
subsection (d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this subsection (d).
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection
(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending against any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in
19
this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 6 shall be in addition to any
liability that the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company
(including any person who, with his consent, is named in the Registration
Statement as about to become a director of the Company), to each officer of
the Company who has signed the Registration Statement and to each person,
if any, who controls the Company within the meaning of the Act.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters and the Company contained in Section 6 hereof, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof, or the
Company or any of its officers, directors, or controlling persons and shall
survive delivery of, and payment for, the Securities to and by the Underwriters
hereunder.
8. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter or Underwriters shall fail to take up and pay
for the number of Shares agreed by such Underwriter or Underwriters to be
purchased hereunder, upon tender of such Shares in accordance with the
terms hereof, and the number of Shares not purchased does not in either
case aggregate more than 10% of the number of Shares set forth in Schedule
I hereto, the remaining Underwriters shall be obligated, severally, in
proportion to the number of Shares which they are obligated to purchase
hereunder, to take up and pay for the number of Shares that the withdrawing
or defaulting Underwriter or Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up and pay
for the number of Shares agreed by such Underwriter or Underwriters to be
purchased hereunder upon tender of such Shares in accordance with the
terms hereof, and the number of Shares not purchased aggregates more than
10% of the aggregate number of Shares set forth in Schedule I hereto, and
arrangements for the purchase of such number of Shares by other persons
reasonably satisfactory to the Company are not made within 36 hours
thereafter, this Agreement shall terminate. In the event of any such
termination the Company shall not be under any liability to any Underwriter
(except to the extent provided in Section 4(h) and Section 6 hereof) nor
shall any Underwriter (other than an Underwriter who shall have failed,
otherwise than for some material reason permitted under this Agreement, to
purchase the total number of Shares agreed by such Underwriter to be
purchased hereunder) be under any liability to the Company (except to the
extent provided in Section 6 hereof). Nothing contained herein shall
relieve a defaulting Underwriter from liability for its default.
If Shares to which a default relates are to be purchased by non-
defaulting Underwriters or by any other party or parties, the non-
defaulting Underwriters or the Company shall have the right to postpone the
Closing Date for not more than seven business days in order that the
necessary changes in the Registration Statement, Prospectus and any other
documents, as well as any other arrangements, may
20
be effected. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 8.
9. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective at 10:00 a.m., Minneapolis
time, on the first business day following the date hereof, or at such
earlier time after the effective date of the Registration Statement as the
Underwriters in their discretion shall first release the Securities for
sale to the public. For the purpose of this Section, the Securities shall
be deemed to have been released for sale to the public upon release by the
Underwriters of the publication of a newspaper advertisement relating
thereto or upon release by the Underwriters of telexes offering the
Securities for sale to securities dealers, whichever shall first occur. By
giving notice as hereinafter specified before the time this Agreement
becomes effective, the Underwriters or the Company may prevent this
Agreement from becoming effective without liability of any party to any
other party, except that the provisions of Section 4(h) and Section 6
hereof shall at all times be effective.
(b) The Underwriters shall have the right to terminate this Agreement
by giving notice as hereinafter specified at any time at or prior to the
Closing Date, if (i) the Company 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 the Underwriters'
obligations hereunder is not fulfilled, (iii) trading on the New York Stock
Exchange or the American Stock Exchange shall have been wholly suspended,
(iv) minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, on the
New York Stock Exchange or the American Stock Exchange, by such Exchange or
by order of the Commission or any other governmental authority having
jurisdiction, (v) a banking moratorium shall have been declared by Federal,
New York, Texas or Minnesota authorities, or (vi) there has occurred any
material adverse change in the financial markets in the United States or an
outbreak of major hostilities (or an escalation thereof) in which the
United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or
occurrence of a similar character shall have occurred since the execution
of this Agreement that, in the Underwriters' judgment, makes it impractical
or inadvisable to proceed with the completion of the sale of and payment
for the Securities. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 4(h) and
Section 6 hereof shall at all times be effective.
(c) If the Underwriters elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section, the
Company shall be notified promptly by the Underwriters by telephone or
telegram, confirmed by letter. If the Company elects to prevent this
Agreement from becoming effective, the Underwriters shall be notified by
the Company by telephone or telegram, confirmed by letter.
10. INFORMATION FURNISHED BY UNDERWRITERS. The statements set forth in the
last paragraph of the cover page and under the caption "Underwriting" in any
Preliminary Prospectus and in the Prospectus constitute the written information
furnished by or on behalf of the Underwriters referred to in Section 2 and
Section 6 hereof.
11. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Underwriters, shall
be mailed, telegraphed or delivered to the Underwriters c/o
21
______________________________, Attn: Director of Corporate Finance, with a copy
to ______________________________, except that notices given to an Underwriter
pursuant to Section 6 hereof shall be sent, if to _______________, to the
address listed above; if to _______________, to ______________________________,
Attn: Director of Corporate Finance; and if to the Company, shall be mailed,
telegraphed or delivered to it at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx 00000; Attention: Chief Executive Officer, with a copy to Xxxxx X.
Xxxxxx, Esq., Xxxxxx, Xxxxxxxx and Xxxxxx, P.A., 5500 Norwest Center, 00 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. 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 Securities from any of
the Underwriters.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the Company
and the Underwriters in accordance with its terms.
Very truly yours,
TCF FINANCIAL CORPORATION
By
----------------------------------
Its
--------------------------------
CONFIRMED
as of the date first
above mentioned
By
------------------------------
By
-------------------------------
Its
-----------------------------
Acting on behalf of itself
and the other Underwriters
22
SCHEDULE I
Underwriter Number of Shares
----------- ----------------
____________
____________
____________
Total ____________
____________
23
