Shares FIRST INTERSTATE BANCSYSTEM, INC. Class A Common Shares, without par value UNDERWRITING AGREEMENT
Shares
FIRST INTERSTATE BANCSYSTEM, INC.
Class A Common Shares, without par value
March , 2010
Barclays Capital Inc.
As Representative of the several
Underwriters named in Schedule 1 attached hereto,
As Representative of the several
Underwriters named in Schedule 1 attached hereto,
c/o Barclays Capital Inc.
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Ladies and Gentlemen:
First Interstate BancSystem, Inc., a Montana corporation (the “Company”), proposes to sell an
aggregate of shares (the “Firm Shares”) of the Company’s Class A common shares, without par
value (the “Common Shares”). In addition, the Company proposes to grant to the underwriters (the “Underwriters”) named in Schedule 1 attached to this agreement (this “Agreement”) an option
to purchase up to additional shares of the Common Shares on the terms set forth in Section 2
(the “Option Shares”). The Firm Shares and the Option Shares, if purchased, are hereinafter
collectively called the “Shares.” This is to confirm the agreement concerning the purchase of the
Shares from the Company by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The Company represents,
warrants and agrees that:
(a) A registration statement on Form S-1 relating to the Shares has (i) been prepared
by the Company in conformity with the requirements of the Securities Act of 1933, as amended
(the “Securities Act”), and the rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder; (ii) been filed with the
Commission under the Securities Act; and (iii) become effective under the Securities Act.
Copies of such registration statement and any amendment thereto have been delivered by the
Company to you as the representative (the “Representative”) of the Underwriters. As used in
this Agreement:
(i) “Applicable
Time” means (New York City time) on
March , 2010;
(ii) “Effective Date” means the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, was declared
effective by the Commission;
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(iii) “Issuer Free Writing Prospectus” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Company or used or referred to by the Company in connection with the offering of the
Shares;
(iv) “Preliminary Prospectus” means any preliminary prospectus relating to the
Shares included in such registration statement or filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations;
(v) “Pricing Disclosure Package” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with the information included in Schedule 3
hereto and each Issuer Free Writing Prospectus filed or used by the Company on or
before the Applicable Time, other than a road show that is an Issuer Free Writing
Prospectus but is not required to be filed under Rule 433 of the Rules and
Regulations.
(vi) “Prospectus” means the final prospectus relating to the Shares, as filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “Registration Statement” means such registration statement, as amended as
of the Effective Date, including any Preliminary Prospectus or the Prospectus and
all exhibits to such registration statement.
Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the
latest Preliminary Prospectus included in the Registration Statement or filed pursuant to
Rule 424(b) prior to or on the date hereof. Any reference herein to the term “Registration
Statement” shall be deemed to include the abbreviated registration statement to register
additional shares of Common Stock under Rule 462(b) of the Rules and Regulations (the “Rule
462(b) Registration Statement”). The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or suspending the
effectiveness of the Registration Statement, and no proceeding or examination for such
purpose has been instituted or threatened by the Commission.
(b) The Company was not at the time of initial filing of the Registration Statement and
at the earliest time thereafter that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the
Shares, is not on the date hereof and will not be on the applicable Delivery Date an
“ineligible issuer” (as defined in Rule 405).
(c) The Registration Statement conformed and will conform in all material respects on
the Effective Date and on the applicable Delivery Date, and any amendment to the
Registration Statement filed after the date hereof will conform in all material respects
when filed, to the requirements of the Securities Act and the Rules and Regulations. The
most recent Preliminary Prospectus conformed, and the Prospectus will conform, in all
material respects when filed with the Commission pursuant to Rule 424(b)
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and on the applicable Delivery Date to the requirements of the Securities Act and the
Rules and Regulations.
(d) The Registration Statement did not, as of the Effective Date, 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 that no representation
or warranty is made as to information contained in or omitted from the Registration
Statement in reliance upon and in conformity with written information furnished to the
Company through the Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 8(e).
(e) The Prospectus will not, as of its date and on the applicable Delivery Date,
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; provided that no representation or
warranty is made as to information contained in or omitted from the Prospectus in reliance
upon and in conformity with written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e).
(f) The Pricing Disclosure Package did not, as of the Applicable Time, contain 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 under which they were made, not
misleading; provided that no representation or warranty is made as to information contained
in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company through the Representative by or on behalf of
any Underwriter specifically for inclusion therein, which information is specified in
Section 8(e).
(g) Each Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433), when considered together with the Pricing
Disclosure Package as of the Applicable Time, 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.
(h) Each Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations on the date
of first use, and the Company has complied with all prospectus delivery and any filing
requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and
Regulations. The Company has not made any offer relating to the Shares that would
constitute an Issuer Free Writing Prospectus without the prior written consent of the
Representative, except as set forth on Schedule 4 hereto. The Company has retained
in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were
not required to be filed pursuant to the Rules and Regulations. The Company has taken all
actions necessary so that any “road show” (as defined in Rule 433 of the Rules
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and Regulations) in connection with the offering of the Shares will not be required to
be filed pursuant to the Rules and Regulations.
(i) Each of the Company and its subsidiaries (as defined in Section 17) has been duly
organized, is validly existing and in good standing as a corporation or other business
entity under the laws of its jurisdiction of organization and is duly qualified to do
business and in good standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the conduct of its businesses
requires such qualification, except where the failure to be so qualified or in good standing
could not, in the aggregate, reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), results of operations, shareholders’ equity, properties
or business of the Company and its subsidiaries taken as a whole (a “Material Adverse
Effect”); each of the Company and its subsidiaries has all power and authority necessary to
own or hold its properties and to conduct the businesses in which it is engaged. The
Company does not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21 to the Registration Statement.
None of the subsidiaries of the Company other than First Interstate Bank is a “significant
subsidiary” (as defined in Rule 405).
(j) The Company has an authorized capitalization as set forth in each of the most
recent Preliminary Prospectus and the Prospectus, in the column entitled “Actual” under the
heading “Capitalization” (except for any subsequent issuances, pursuant to this Agreement,
pursuant to stock incentive plans described in the most recent Preliminary Prospectus or
pursuant to the exercise of options described in the most recent Preliminary Prospectus).
All of the issued shares of capital shares of the Company have been duly authorized and
validly issued, are fully paid and non-assessable, conform in all material respects to the
description thereof contained in the most recent Preliminary Prospectus and were issued in
compliance with federal and state securities laws and not in violation of any preemptive
right, resale right, right of first refusal or similar right. All of the Company’s options,
warrants and other rights to purchase or exchange any securities for shares of the Company’s
capital shares have been duly authorized and validly issued, conform in all material
respects to the description thereof contained in the most recent Preliminary Prospectus and
were issued in compliance with federal and state securities laws. All of the issued shares
of capital shares of each subsidiary of the Company have been duly authorized and validly
issued, are fully paid and non-assessable (except, with respect to First Interstate Bank
only, to the extent such shares are subject to assessment under the Montana Bank Act or the
Federal Deposit Insurance Act, or regulations issued pursuant to either as described in the
most recent Preliminary Prospectus) and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims, (i) except for such liens,
encumbrances, equities or claims as could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect or (ii) as described in the most recent Preliminary
Prospectus.
(k) The Shares to be issued and sold by the Company to the Underwriters hereunder have
been duly authorized and, upon payment and delivery in accordance with this Agreement, will
be validly issued, fully paid and non-assessable, will conform in all material respects to
the description thereof contained in the most recent Preliminary
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Prospectus, will be issued in compliance with federal and state securities laws and
will be free of statutory and contractual preemptive rights, rights of first refusal and
similar rights.
(l) The Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(m) The execution, delivery and performance of this Agreement by the Company, the
consummation of the transactions contemplated hereby and the application of the proceeds
from the sale of the Shares as described under “Use of Proceeds” in the most recent
Preliminary Prospectus will not (i) conflict with or result in a breach or violation of any
of the terms or provisions of, impose any lien, charge or encumbrance upon any property or
assets of the Company and its subsidiaries, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, license or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject; (ii) result in any violation of the provisions of the charter or
by-laws (or similar organizational documents) of the Company or any of its subsidiaries; or
(iii) result in any violation of any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets except, in the case of clauses (i) and
(ii) above for such conflicts or violations that would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(n) No consent, approval, authorization or order of, or filing or registration with,
any court or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets is required for the execution, delivery
and performance of this Agreement by the Company, the consummation of the transactions
contemplated hereby, the application of the proceeds from the sale of the Shares as
described under “Use of Proceeds” in the most recent Preliminary Prospectus, except for the
registration of the Shares under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and applicable state securities laws
in connection with the purchase and sale of the Shares by the Underwriters.
(o) There are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company under the
Securities Act.
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(p) The Company has not sold or issued any securities that would be integrated with the
offering of the Shares contemplated by this Agreement pursuant to the Securities Act, the
Rules and Regulations or the interpretations thereof by the Commission.
(q) Neither the Company nor any of its subsidiaries has sustained, since the date of
the latest audited financial statements included in the most recent Preliminary Prospectus,
any loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, and since such date, there has not been any change in the capital
stock or long-term debt and subordinated debentures of the Company or any of its
subsidiaries or any adverse change, or any development involving a prospective adverse
change, in or affecting the condition (financial or otherwise), results of operations,
shareholders’ equity, properties, management or business of the Company and its subsidiaries
taken as a whole, in each case except as could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(r) Since the date as of which information is given in the most recent Preliminary
Prospectus, the Company has not (i) incurred any material liability or obligation, direct or
contingent, other than liabilities and obligations that were incurred in the ordinary course
of business, (ii) entered into any material transaction not in the ordinary course of
business or (iii) except for regular quarterly dividends on the Common Stock in amounts per
share that are consistent with past practice, declared or paid any dividend on its capital
shares.
(s) The historical financial statements (including the related notes and supporting
schedules) included in the most recent Preliminary Prospectus comply as to form in all
material respects with the requirements of Regulation S-X under the Securities Act and
present fairly the financial condition, results of operations and cash flows of the entities
purported to be shown thereby at the dates and for the periods indicated and have been
prepared in conformity with accounting principles generally accepted in the United States
applied on a consistent basis throughout the periods involved.
(t) McGladrey & ▇▇▇▇▇▇ LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries, whose report appears in the most recent
Preliminary Prospectus and who have delivered the initial letter referred to in Section 7(h)
hereof, are independent public accountants as required by the Securities Act and the Rules
and Regulations.
(u) The Company and each of its subsidiaries have good and marketable title to all real
property owned by them and good title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects, except such as are described in the
most recent Preliminary Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries. All assets held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and enforceable leases, with such
exceptions as do not materially interfere with the use made and proposed to be made of such
assets by the Company and its subsidiaries.
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(v) The Company and each of its subsidiaries carry, or are covered by, insurance from
insurers of recognized financial responsibility in such amounts and covering such risks as
the Company reasonably believes is adequate for the conduct of their respective businesses
and the value of their respective properties. All policies of insurance of the Company and
its subsidiaries are in full force and effect; the Company and its subsidiaries are in
compliance with the terms of such policies in all material respects; and neither the Company
nor any of its subsidiaries has received notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or necessary to be made in
order to continue such insurance; there are no claims by the Company or any of its
subsidiaries under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause; 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 cost that could not
reasonably be expected to have a Material Adverse Effect.
(w) The statistical and market-related data included under the captions “Summary,”
“Summary Historical Consolidated Financial Data,” “Selected Historical Consolidated
Financial Data.” “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and “Business” in the most recent Preliminary Prospectus and the consolidated
financial statements of the Company and its subsidiaries included in the most recent
Preliminary Prospectus comply in all material respects with the requirements of Commission
Industry Guide 3 and are based on or derived from sources that the Company believes to be
reliable and accurate in all material respects.
(x) Neither the Company nor any subsidiary is, and as of the applicable Delivery Date
and, after giving effect to the offer and sale of the Shares and the application of the
proceeds therefrom as described under “Use of Proceeds” in the most recent Preliminary
Prospectus and the Prospectus, none of them will be, (i) an “investment company” within the
meaning of such term under the Investment Company Act of 1940, as amended (the “Investment
Company Act”), and the rules and regulations of the Commission thereunder or (ii) a
“business development company” (as defined in Section 2(a)(48) of the Investment Company
Act).
(y) There are no legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or assets of the Company or any of
its subsidiaries is the subject that could, in the aggregate, reasonably be expected to have
a Material Adverse Effect or could, in the aggregate, reasonably be expected to have a
material adverse effect on the performance of this Agreement or the consummation of the
transactions contemplated hereby; and to the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or others.
(z) There are no legal or governmental proceedings or contracts or other documents of a
character required to be described in the Registration Statement or the most recent
Preliminary Prospectus or, in the case of documents, to be filed as exhibits to the
Registration Statement, that are not described and filed as required. Neither the
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Company nor any of its subsidiaries has knowledge that any other party to any such
contract, agreement or arrangement has any intention not to render full performance as
contemplated by the terms thereof; and that statements made in the most recent Preliminary
Prospectus under the caption “Regulation and Supervision”
to the extent they purport to
constitute summaries of certain terms of statutes, rules or regulations, legal or governmental
proceedings or contracts and other documents, constitute accurate
summaries of such terms of
such statutes, rules and regulations, legal and governmental proceedings and contracts and
other documents in all material respects.
(aa) No relationship, direct or indirect, exists between or among the Company, on the
one hand, and the directors, officers, shareholders, customers or suppliers of the Company,
on the other hand, that is required to be described in the most recent Preliminary
Prospectus which is not so described.
(bb) No labor disturbance by the employees of the Company or its subsidiaries exists
or, to the knowledge of the Company, is imminent that could reasonably be expected to have a
Material Adverse Effect.
(cc) (i) Each “employee benefit plan” (within the meaning of Section 3(3) of the
Employee Retirement Security Act of 1974, as amended (“ERISA”)) for which the Company or any
member of its “Controlled Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of Section 414 of the Internal Revenue
Code of 1986, as amended (the “Code”)) would have any liability (each a “Plan”) has been
maintained in all material respects in compliance with its terms and with the requirements
of all applicable statutes, rules and regulations including ERISA and the Code; (ii) with
respect to each Plan subject to Title IV of ERISA (a) no “reportable event” (within the
meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (b) no
“accumulated funding deficiency” (within the meaning of Section 302 of ERISA or Section 412
of the Code), whether or not waived, has occurred or is reasonably expected to occur, (c)
the fair market value of the assets under each Plan exceeds the present value of all
benefits accrued under such Plan (determined based on those assumptions used to fund such
Plan) and (d) neither the Company or any member of its Controlled Group has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA (other than contributions
to the Plan or premiums to the PBGC in the ordinary course and without default) in respect
of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(c)(3) of
ERISA); and (iii) each Plan that is intended to be qualified under Section 401(a) of the
Code is so qualified and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
(dd) The Company and each of its subsidiaries have filed all federal, state, local and
foreign income and franchise tax returns required to be filed through the date hereof,
subject to permitted extensions, and have paid all taxes shown due thereon, and no tax
deficiency has been determined adversely to the Company or any of its subsidiaries, nor does
the Company have any knowledge of any tax deficiencies that could, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
9
(ee) There are no transfer taxes or other similar fees or charges under Federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Shares.
(ff) Neither the Company nor any of its subsidiaries (i) is in violation of its charter
or by-laws (or similar organizational documents), (ii) is in default, and no event has
occurred that, with notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, license or other agreement or instrument to which
it is a party or by which it is bound or to which any of its properties or assets is subject
or (iii) is in violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over it or its property or assets or has
failed to obtain any license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the conduct of its
business, except in the case of clauses (ii) and (iii), to the extent any such conflict,
breach, violation or default could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(gg) The Company and each of its subsidiaries (i) make and keep accurate books and
records and (ii) maintain and has maintained effective internal control over financial
reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal
accounting controls sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management’s general or specific authorization, (B) transactions
are recorded as necessary to permit preparation of the Company’s financial statements in
conformity with accounting principles generally accepted in the United States and to
maintain accountability for its assets, (C) access to the Company’s assets is permitted only
in accordance with management’s general or specific authorization and (D) the recorded
accountability for the Company’s assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(hh) (i) The Company and each of its subsidiaries have established and maintain
disclosure controls and procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the
information required to be disclosed by the Company and its subsidiaries in the reports they
will file or submit under the Exchange Act is accumulated and communicated to management of
the Company and its subsidiaries, including their respective principal executive officers
and principal financial officers, as appropriate, to allow timely decisions regarding
required disclosure to be made and (iii) such disclosure controls and procedures are
effective in all material respects to perform the functions for which they were established.
(ii) Since the date of the most recent balance sheet of the Company and its
consolidated subsidiaries reviewed or audited by McGladrey & ▇▇▇▇▇▇ LLP and the audit
committee of the board of directors of the Company, (i) the Company has not been advised of
(A) any significant deficiencies in the design or operation of internal controls that could
adversely affect the ability of the Company and each of its subsidiaries to
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record, process, summarize and report financial data, or any material weaknesses in
internal controls and (B) any fraud, whether or not material, that involves management or
other employees who have a significant role in the internal controls of the Company and each
of its subsidiaries, and (ii) since that date, there have been no significant changes in
internal controls or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies and material
weaknesses.
(jj) There is and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such, to comply in all material
respects with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated in connection therewith.
(kk) The section entitled “Management’s Discussion and Analysis of Financial Condition
and Results of Operations — Critical Estimates and Significant Accounting Policies” in the
most recent Preliminary Prospectus accurately and fully describes (A) the accounting
policies that the Company believes are the most important in the portrayal of the Company’s
financial condition and results of operations and that require management’s most difficult,
subjective or complex judgments (“Critical Accounting Policies”); (B) the judgments and
uncertainties affecting the application of critical accounting policies; and (C) the
likelihood that materially different amounts would be reported under different conditions or
using different assumptions and an explanation thereof.
(ll) The Company and each of its subsidiaries have such permits, licenses, patents,
franchises, certificates of need and other approvals or authorizations of governmental or
regulatory authorities (“Permits”) as are necessary under applicable law to own their
properties and conduct their businesses in the manner described in the most recent
Preliminary Prospectus, except for any of the foregoing that could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect; each of the Company and its
subsidiaries has fulfilled and performed all of its obligations with respect to the Permits,
and no event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other impairment of the rights of the
holder or any such Permits, except for any of the foregoing that could not reasonably be
expected to have a Material Adverse Effect.
(mm) The Company and each of its subsidiaries own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses, know-how, software, systems
and technology (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) necessary for the conduct of their
respective businesses and have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any claim of conflict
with, any such rights of others.
(nn) Except as described in the most recent Preliminary Prospectus, (A) there are no
proceedings that are pending, or known to be contemplated, against the Company or
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any of its subsidiaries under any laws, regulations, ordinances, rules, orders,
judgments, decrees, permits or other legal requirements of any governmental authority,
including without limitation any international, national, state, provincial, regional, or
local authority, relating to the protection of human health or safety, the environment, or
natural resources, or to hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”) in which a governmental authority is also a party, other than such
proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or
more will be imposed, (B) the Company and its subsidiaries are not aware of any issues
regarding compliance with Environmental Laws, or liabilities or other obligations under
Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or
contaminants, that could reasonably be expected to have a material effect on the capital
expenditures, earnings or competitive position of the Company and its subsidiaries, and (C)
none of the Company and its subsidiaries anticipates material capital expenditures relating
to Environmental Laws.
(oo) Neither the Company nor any subsidiary is in violation of or has received notice
of any violation with respect to any federal or state law relating to discrimination in the
hiring, promotion or pay of employees, nor any applicable federal or state wage and hour
laws, nor any state law precluding the denial of credit due to the neighborhood in which a
property is situated, the violation of any of which could reasonably be expected to have a
Material Adverse Affect.
(pp) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company except for such limitations and prohibitions generally
applicable to Montana chartered commercial banks and banks that are members of the Federal
Reserve System as described in the most recent Preliminary Prospectus, from making any other
distribution on such subsidiary’s capital shares, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of such subsidiary’s
property or assets to the Company or any other subsidiary of the Company, except as
described in the most recent Preliminary Prospectus.
(qq) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(rr) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”)
12
and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened, except, in each case, as would not reasonably be expected to have a Material
Adverse Effect.
(ss) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(tt) The Company has not distributed and, prior to the later to occur of any Delivery
Date and completion of the distribution of the Shares, will not distribute any offering
material in connection with the offering and sale of the Shares other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the Representative
has consented in accordance with Section 1(i) or 5(a)(vi) and any Issuer Free Writing
Prospectus set forth on Schedule 4 hereto.
(uu) The Company has not taken and will not take, directly or indirectly, any action
designed to or that has constituted or that could reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the Shares.
(vv) The Shares has been approved for listing, subject to official notice of issuance
and evidence of satisfactory distribution, on The NASDAQ Global Market.
(ww) The Company is a bank holding company and financial holding company duly
registered under the Bank Holding Company Act of 1956, as amended (the “BHC”); and
each of the Company and its subsidiaries are in substantial compliance with, and conduct
their respective businesses in substantial conformity with, all applicable laws and
governmental regulations governing bank holding companies, banks and subsidiaries of bank
holding companies, respectively, including all laws administered by and regulations
applicable to it of the Board of Governors of the Federal Reserve System, the Federal
Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the State of
Montana, Department of Administration, Division of Banking and Financial Institutions, the
State of Wyoming, Department of Audit, the State of South Dakota, Department of Revenue &
Regulation, Division of Banking and of any other federal or state agency or authority with
jurisdiction over it (each, a “Banking Regulator”) except where failure to so comply
would not result in a Material Adverse Effect, except failures to comply or be in conformity
with such laws and regulations that could not reasonably be expected to have a Material
Adverse Effect.
13
(xx) The Bank is a duly organized and validly existing Montana state chartered bank;
the Bank is an insured bank under the applicable provisions of the Federal Deposit Insurance
Act, as amended, and no proceeding for the termination or revocation of such insurance is
pending or, to the knowledge of the Company, threatened against the Bank; the Bank is the
only depository institution subsidiary of the Company; the Bank is a member in good standing
of the Federal Home Loan Bank System.
(yy) Neither the Company nor any of its subsidiaries has debt securities or preferred
shares that are rated by any “nationally recognized statistical rating organization” (as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations).
(zz) Neither the Company nor any of its subsidiaries is a party to or otherwise subject
to any consent decree, memorandum of understanding, written commitment or other supervisory
agreement with, or has adopted any board resolutions at the request of, any Banking
Regulator, nor has the Company or any agency or authority that it is contemplating issuing
or requesting any of the foregoing except where being a party to or subject to such consent
decree, memorandum of understanding, written commitment, other supervisory agreement or
board resolution would not result in a Material Adverse Effect.
Any certificate signed by any officer of the Company and delivered to the Representative or
counsel for the Underwriters in connection with the offering of the Shares shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase of the Shares by the Underwriters. On the basis of the representations
and warranties contained in, and subject to the terms and conditions of, this Agreement, the
Company agrees to sell shares of the Firm Shares to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase the number of shares of the Firm Shares
set forth opposite that Underwriter’s name in Schedule 1 hereto. The respective purchase
obligations of the Underwriters with respect to the Firm Shares shall be rounded among the
Underwriters to avoid fractional shares, as the Representative may determine.
In addition, the Company grants to the Underwriters an option to purchase up to additional
shares of Option Shares. Such option is exercisable in the event that the Underwriters sell more
shares of Common Shares than the number of Firm Shares in the offering and as set forth in Section
4 hereof. Each Underwriter agrees, severally and not jointly, to purchase the number of shares of
Option Shares (subject to such adjustments to eliminate fractional shares as the Representative may
determine) that bears the same proportion to the total number of shares of Option Shares to be sold
on such Delivery Date as the number of shares of Firm Shares set forth in Schedule 1 hereto
opposite the name of such Underwriter bears to the total number of shares of Firm Shares.
The price of both the Firm Shares and any Option Shares purchased by the Underwriters shall be
$ per share.
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The Company shall not be obligated to deliver any of the Firm Shares or Option Shares to be
delivered on the applicable Delivery Date, except upon payment for all such Shares to be purchased
on such Delivery Date as provided herein.
3. Offering of Shares by the Underwriters. Upon authorization by the Representative
of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for
sale upon the terms and conditions to be set forth in the Prospectus.
4. Delivery of and Payment for the Shares. Delivery of and payment for the Firm
Shares shall be made at 10:00 A.M., New York City time, on the fourth full business day following
the date of this Agreement or at such other date or place as shall be determined by agreement
between the Representative and the Company. This date and time are sometimes referred to as the
"Initial Delivery Date.” Delivery of the Firm Shares shall be made to the Representative for the
account of each Underwriter against payment by the several Underwriters through the Representative
and of the respective aggregate purchase prices of the Firm Shares being sold by the Company to or
upon the order of the Company of the purchase price by wire transfer in immediately available funds
to the account specified by the Company. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. The Company shall deliver the Firm Shares through the facilities of DTC
unless the Representative shall otherwise instruct.
The option granted in Section 2 will expire 30 days after the date of this Agreement and may
be exercised in whole or from time to time in part by written notice being given to the Company by
the Representative; provided that if such date falls on a day that is not a business day, the
option granted in Section 2 will expire on the next succeeding business day. Such notice shall set
forth the aggregate number of shares of Option Shares as to which the option is being exercised,
the names in which the shares of Option Shares are to be registered, the denominations in which the
shares of Option Shares are to be issued and the date and time, as determined by the
Representative, when the shares of Option Shares are to be delivered; provided, however, that this
date and time shall not be earlier than the Initial Delivery Date nor earlier than the second
business day after the date on which the option shall have been exercised nor later than the fifth
business day after the date on which the option shall have been exercised. Each date and time the
shares of Option Shares are delivered is sometimes referred to as an “Option Shares Delivery Date,”
and the Initial Delivery Date and any Option Shares Delivery Date are sometimes each referred to as
a “Delivery Date.”
Delivery of the Option Shares by the Company and payment for the Option Shares by the several
Underwriters through the Representative shall be made at 10:00 A.M., New York City time, on the
date specified in the corresponding notice described in the preceding paragraph or at such other
date or place as shall be determined by agreement between the Representative and the Company. On
the Option Shares Delivery Date, the Company shall deliver or cause to be delivered the Option
Shares to the Representative for the account of each Underwriter against payment by the several
Underwriters through the Representative and of the respective aggregate purchase prices of the
Option Shares being sold by the Company to or upon the order of the Company of the purchase price
by wire transfer in immediately available funds to the accounts specified by the Company. Time
shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is
a further condition of the obligation of each
15
Underwriter hereunder. The Company shall deliver the Option Shares through the facilities of
DTC unless the Representative shall otherwise instruct.
5. Further Agreements of the Company and the Underwriters. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Representative and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s
close of business on the second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the Registration Statement or
the Prospectus prior to the last Delivery Date except as provided herein; to advise the
Representative, promptly after it receives notice thereof, of the time when any amendment or
supplement to the Registration Statement or the Prospectus has been filed and to furnish the
Representative with copies thereof; to advise the Representative, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of
the suspension of the qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding or examination for any such purpose or of
any request by the Commission for the amending or supplementing of the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order preventing
or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending
any such qualification, to use promptly its best efforts to obtain its withdrawal;
(ii) To furnish promptly to the Representative and to counsel for the Underwriters a
signed copy of the Registration Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and exhibits filed
therewith;
(iii) To deliver promptly to the Representative such number of the following documents
as the Representative shall reasonably request: (A) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the computation of per share earnings), (B)
each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and
(C) each Issuer Free Writing Prospectus; and, if the delivery of a prospectus is required at
any time after the date hereof in connection with the offering or sale of the Shares or any
other securities relating thereto and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with the Securities Act,
to notify the Representative and, upon their request, to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many
copies as the Representative
16
may from time to time reasonably request of an amended or supplemented Prospectus that
will correct such statement or omission or effect such compliance;
(iv) To file promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the judgment of the Company or the
Representative, be required by the Securities Act or requested by the Commission;
(v) Prior to filing with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, to furnish a copy thereof to the Representative and counsel for
the Underwriters and obtain the consent of the Representative to the filing;
(vi) Not to make any offer relating to the Shares that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the Representative.
(vii) To comply with all applicable requirements of Rule 433 with respect to any Issuer
Free Writing Prospectus; and if at any time after the date hereof any events shall have
occurred as a result of which any Issuer Free Writing Prospectus, as then amended or
supplemented, would conflict with the information in the Registration Statement, the most
recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, or,
if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing
Prospectus, to notify the Representative and, upon their request, to file such document and
to prepare and furnish without charge to each Underwriter as many copies as the
Representative may from time to time reasonably request of an amended or supplemented Issuer
Free Writing Prospectus that will correct such conflict, statement or omission or effect
such compliance;
(viii) As soon as practicable after the Effective Date (it being understood that the
Company shall have until at least 410 or, if the fourth quarter following the fiscal quarter
that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year,
455 days after the end of the Company’s current fiscal quarter), to make generally available
to the Company’s security holders and to deliver to the Representative an earnings statement
of the Company and its subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the option of the
Company, Rule 158);
(ix) Promptly from time to time to take such action as the Representative may
reasonably request to qualify the Shares for offering and sale under the securities laws of
Canada and such other jurisdictions as the Representative may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Shares;
provided that in connection therewith the Company shall not be required to (i) qualify as a
foreign corporation in any jurisdiction in which it would not otherwise be required to so
qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
17
(x) For a period commencing on the date hereof and ending on the 180th day after the
date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for
sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the disposition by any person at any time in
the future of) any shares of Common Shares or securities convertible into or exchangeable
for Common Shares (other than the Shares and shares issued pursuant to employee benefit
plans, qualified shares option plans or other employee compensation plans existing on the
date hereof or pursuant to currently outstanding options, warrants or rights not issued
under one of those plans), or sell or grant options, rights or warrants with respect to any
shares of Common Shares or securities convertible into or exchangeable for Common Shares
(other than the grant of options pursuant to option plans existing on the date hereof), (2)
enter into any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such shares of Common Shares,
whether any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Shares or other securities, in cash or otherwise, (3) file or cause to be
filed a registration statement, including any amendments, with respect to the registration
of any shares of Common Shares or securities convertible, exercisable or exchangeable into
Common Shares or any other securities of the Company (other than any registration statement
on Form S-8) or (4) publicly disclose the intention to do any of the foregoing, in each case
without the prior written consent of Barclays Capital Inc., on behalf of the Underwriters,
and to cause each officer, director and shareholder of the Company set forth on Schedule
2 hereto to furnish to the Representative, prior to the Initial Delivery Date, a letter
or letters, substantially in the form of Exhibit A hereto (the “Lock-Up
Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up
Period, the Company issues an earnings release or material news or a material event relating
to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall
continue to apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the announcement of the material news or the occurrence of the material
event, unless Barclays Capital Inc. on behalf of the Underwriters, waives such extension in
writing; and
(xi) To apply the net proceeds from the sale of the Shares being sold by the Company as
set forth in the Prospectus.
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer
information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405)
used or referred to by such Underwriter without the prior consent of the Company (any such issuer
information with respect to whose use the Company has given its consent, “Permitted Issuer
Information”); provided that (i) no such consent shall be required with respect to any such issuer
information contained in any document filed by the Company with the Commission prior to the use of
such free writing prospectus and (ii) “issuer information,” as used in this Section 5(b), shall not
be deemed to include information prepared by or on behalf of such Underwriter on the basis of or
derived from issuer information.
18
6. Expenses. The Company agrees, whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and
taxes incident to and in connection with (a) the authorization, issuance, sale and delivery of the
Shares and any stamp duties or other taxes payable in that connection, and the preparation and
printing of certificates for the Shares; (b) the preparation, printing and filing under the
Securities Act of the Registration Statement (including any exhibits thereto), any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement
thereto; (c) the distribution of the Registration Statement (including any exhibits thereto), any
Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or
supplement thereto, all as provided in this Agreement; (d) the production and distribution of this
Agreement, any supplemental agreement among Underwriters, and any other related documents in
connection with the offering, purchase, sale and delivery of the Shares; (e) any required review
by the FINRA of the terms of sale of the Shares (including related fees and expenses of counsel to
the Underwriters in an amount that is not greater than $25,000); (f) the listing of the Shares on
The NASDAQ Global Market and/or any exchange; (g) the qualification of the Shares under the
securities laws of the several jurisdictions as provided in Section 5(a)(ix) and the preparation,
printing and distribution of a Blue Sky Memorandum (including related fees and expenses of counsel
to the Underwriters); (h) the preparation, printing and distribution of one or more versions of the
Preliminary Prospectus and the Prospectus for distribution in Canada, often in the form of a
Canadian “wrapper” (including related fees and expenses of Canadian counsel to the Underwriters);
(i) the investor presentations on any “road show” undertaken in connection with the marketing of
the Shares, including, without limitation, expenses associated with any electronic roadshow, travel
and lodging expenses of the representatives and officers of the Company and 50% of the cost of any
aircraft not owned by the Company which is chartered in connection with the road show; and (j) all
other costs and expenses incident to the performance of the obligations of the Company under this
Agreement; provided that, except as provided in this Section 6 and in Section 11, the Underwriters
shall pay their own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Shares which they may sell, the expenses of advertising any offering of the
Shares made by the Underwriters and the remaining 50% of the cost of any aircraft not owned by the
Company which is chartered in connection with the road show and any transfer taxes payable in
connection with their respective sales of Shares to the Underwriters and reimburse the Company for
their pro rata share of the fees and expenses paid by the Company in connection with the offering
of the Shares, and provided, further, that if the Underwriters utilize the aircraft owned by the
Company for travel in connection with, as described in Section 6(i), any “road show” undertaken in
connection with the marketing of the Shares, the Underwriters shall reimburse the Company for 50%
of the expenses associated with the use of such aircraft.
7. Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters
hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations
and warranties of the Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with
Section 5(a)(i); the Company shall have complied with all filing requirements applicable to
any Issuer Free Writing Prospectus used or referred to after
19
the date hereof; no stop order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been issued and no proceeding or examination for such purpose shall
have been initiated or threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to
such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure
Package, or any amendment or supplement thereto, contains an untrue statement of a fact
which, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, is
material or omits to state a fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Shares, the Registration Statement, the Prospectus
and any Issuer Free Writing Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company shall have furnished to
such counsel all documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Holland & ▇▇▇▇ LLP shall have furnished to the Representative its written opinion,
as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representative, substantially in the form
attached hereto as Exhibit B-1.
(e) Christian, Samson, ▇▇▇▇▇ PLLC shall have furnished to the Representative its
written opinion, as counsel to the Company, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to the Representative,
substantially in the form attached hereto as Exhibit B-2.
(f) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall have furnished to the Representative her written opinion, as
general counsel to the Company, addressed to the Underwriters and dated such Delivery Date,
in form and substance reasonably satisfactory to the Representative, substantially in the
form attached hereto as Exhibit B-3.
(g) The Representative shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel
for the Underwriters, such opinion or opinions, dated such Delivery Date, with respect to
the issuance and sale of the Shares, the Registration Statement, the Prospectus and the
Pricing Disclosure Package and other related matters as the Representative may reasonably
require, and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
20
(h) At the time of execution of this Agreement, the Representative shall have received
from McGladrey & ▇▇▇▇▇▇ LLP a letter, in form and substance satisfactory to the
Representative, addressed to the Underwriters and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the respective dates as
of which specified financial information is given in the most recent Preliminary Prospectus,
as of a date not more than three days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with registered
public offerings.
(i) With respect to the letter of McGladrey & ▇▇▇▇▇▇ LLP referred to in the preceding
paragraph and delivered to the Representative concurrently with the execution of this
Agreement (the “initial letter”), the Company shall have furnished to the Representative a
letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and
dated such Delivery Date (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more than three days
prior to the date of the bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and findings set forth in the
initial letter.
(j) The Company shall have furnished to the Representative a certificate, dated such
Delivery Date, of its Chief Executive Officer and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in Section 1
are true and correct on and as of such Delivery Date, and the Company has complied
with all its agreements contained herein and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued; and no proceedings or examination for that purpose have been
instituted or, to the knowledge of such officers, threatened; and
(iii) They have carefully examined the Registration Statement, the Prospectus
and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration
Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the
applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the
Applicable Time, did not and do not contain any untrue statement of a
21
material fact and did not and do not omit to state a material fact required to
be stated therein or necessary to make the statements therein (except in the case of
the Registration Statement, in the light of the circumstances under which they were
made) not misleading, and (B) since the Effective Date, no event has occurred that
should have been set forth in a supplement or amendment to the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so
set forth;
(k) (i) Neither the Company nor any of its subsidiaries shall have sustained, since the
date of the latest audited financial statements included in the most recent Preliminary
Prospectus, any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree or (ii) since such date there shall not have been any
change in the capital stock or long-term debt and subordinated debentures of the Company or
any of its subsidiaries or any change, or any development involving a prospective change, in
or affecting the condition (financial or otherwise), results of operations, shareholders’
equity, properties, management, business or prospects of the Company and its subsidiaries
taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is,
in the judgment of the Representative, so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the Shares being
delivered on such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(l) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall
have occurred in the corporate rating accorded the Company by any “nationally recognized
statistical rating organization” (as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations) such organization, and (ii) no such
organization has publicly announced that it has under surveillance or review, with possible
negative implications, such corporate rating of the Company.
(m) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market, shall have been
suspended or materially limited or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities, (iii) the United States shall have become engaged
in hostilities, there shall have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in general economic,
political or financial conditions, including, without limitation, as a result of terrorist
activities after the date hereof (or the effect of international conditions on the financial
markets in the United States shall be such), as to make it, in the judgment of the
Representative, impracticable or inadvisable
22
to proceed with the public offering or delivery of the Shares being delivered on such
Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) The NASDAQ Global Market shall have approved the Shares for listing, subject only
to official notice of issuance and evidence of satisfactory distribution.
(o) The Lock-Up Agreements between the Representative and the officers, directors and
shareholders of the Company set forth on Schedule 2, delivered to the Representative
on or before the date of this Agreement, shall be in full force and effect on such Delivery
Date.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter, its partners,
directors, officers and employees and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to purchases and sales of
Shares), to which that Underwriter, partner, director, officer, employee or controlling
person may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in (A) any Preliminary Prospectus,
the Registration Statement, the Prospectus or in any amendment or supplement thereto, (B)
any Issuer Free Writing Prospectus or in any amendment or supplement thereto or (C) any
Permitted Issuer Information used or referred to in any “free writing prospectus” (as
defined in Rule 405) used or referred to by any Underwriter, (D) any “road show” (as defined
in Rule 433) not constituting an Issuer Free Writing Prospectus (a “Non-Prospectus Road
Show”) or (E) any Blue Sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company for use therein)
specifically for the purpose of qualifying any or all of the Shares under the securities
laws of any state or other jurisdiction (any such application, document or information being
hereinafter called a “Blue Sky Application”) or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer
Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer
Information, any Non-Prospectus Road Show or any Blue Sky Application, any material fact
required to be stated therein or necessary to make the statements therein not misleading,
and shall reimburse each Underwriter and each such partner, director, officer, employee or
controlling person promptly upon demand for any legal or other expenses reasonably incurred
by that Underwriter, partner, director, officer, employee or controlling person in
connection with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent
23
that any such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any such amendment or supplement thereto or in any Permitted Issuer
Information, any Non-Prospectus Road Show or any Blue Sky Application, in reliance upon and
in conformity with written information concerning such Underwriter furnished to the Company
through the Representative by or on behalf of any Underwriter specifically for inclusion
therein, which information consists solely of the information specified in Section 8(e).
The foregoing indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or to any partner, director, officer, employee or
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, its partners, directors, officers and employees, and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such partner, director, officer, employee or
controlling person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in any amendment or supplement thereto or in any Non-Prospectus Road Show or Blue Sky
Application, or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in any amendment or supplement thereto or in any Non-Prospectus Road Show or Blue Sky
Application, any material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Underwriter furnished to the
Company through the Representative by or on behalf of that Underwriter specifically for
inclusion therein, which information is limited to the information set forth in Section
8(e). The foregoing indemnity agreement is in addition to any liability that any
Underwriter may otherwise have to the Company or any such partner, director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the
24
defense thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than reasonable costs
of investigation; provided, however, that the indemnified party shall have the right to
employ counsel to represent jointly the indemnified party and those other indemnified
parties and their respective partners, directors, officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of which
indemnity may be sought under this Section 8 if (i) the indemnified party and the
indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to the indemnified party;
(iii) the indemnified party and its partners, directors, officers, employees and controlling
persons shall have reasonably concluded that there may be legal defenses available to them
that are different from or in addition to those available to the indemnifying party; or (iv)
the named parties in any such proceeding (including any impleaded parties) include both the
indemnified parties or their respective partners, directors, officers, employees or
controlling persons, on the one hand, and the indemnifying party, on the other hand, and
representation of both sets of parties by the same counsel would be inappropriate due to
actual or potential differing interests between them, and in any such event the fees and
expenses of such separate counsel shall be paid by the indemnifying party. No indemnifying
party shall (i) without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding and does not
include any findings of fact or admissions of fault or culpability as to the indemnified
party, or (ii) be liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or
8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Underwriters, on the other, from the offering of the Shares 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
25
Underwriters, on the other, with respect to the statements or omissions that resulted
in such loss, claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the
one hand, and the Underwriters, on the other, with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the Shares
purchased under this Agreement (before deducting expenses) received by the Company, as set
forth in the table on the cover page of the Prospectus, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with respect to the
shares of the Shares purchased under this Agreement, as set forth in the table on the cover
page of the Prospectus, on the other hand. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company
or the Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if contributions pursuant
to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be deemed to
include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the net proceeds from the
sale of the Shares underwritten by it exceeds the amount of any damages that such
Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute as provided in this Section
8(d) are several in proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges and agrees that the
statements regarding delivery of shares by the Underwriters set forth on the cover page of,
and the concession and reallowance figures and the paragraph relating to stabilization by
the Underwriters appearing under the caption “Underwriting” in, the most recent Preliminary
Prospectus and the Prospectus are correct and constitute the only information concerning
such Underwriters furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or
in any Non-Prospectus Road Show.
9. Defaulting Underwriters. If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Shares that the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number of
26
shares of the Firm Shares set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of shares of the Firm Shares set
forth opposite the names of all the remaining non-defaulting Underwriters in Schedule 1
hereto; provided, however, that the remaining non-defaulting Underwriters shall not be obligated to
purchase any of the Shares on such Delivery Date if the total number of shares of the Shares that
the defaulting Underwriter or Underwriters agreed but failed to purchase on such date exceeds 9.09%
of the total number of shares of the Shares to be purchased on such Delivery Date, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more than 110% of the
number of shares of the Shares that it agreed to purchase on such Delivery Date pursuant to the
terms of Section 2. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representative who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Shares to be purchased on such Delivery Date. If the remaining Underwriters or
other underwriters satisfactory to the Representative do not elect to purchase the shares that the
defaulting Underwriter or Underwriters agreed but failed to purchase on such Delivery Date, this
Agreement (or, with respect to any Option Shares Delivery Date, the obligation of the Underwriters
to purchase, and of the Company to sell, the Option Shares) shall terminate without liability on
the part of any non-defaulting Underwriter or the Company, except that the Company will continue to
be liable for the payment of expenses to the extent set forth in Sections 6 and 11. As used in
this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Schedule 1 hereto that, pursuant to
this Section 9, purchases Shares that a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company for damages caused by its default. If other Underwriters are obligated or agree to
purchase the Shares of a defaulting or withdrawing Underwriter, either the Representative or the
Company may postpone the Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be terminated by the
Representative by notice given to and received by the Company prior to delivery of and payment for
the Firm Shares if, prior to that time, any of the events described in Sections 7(k), 7(l) and 7(m)
shall have occurred or if the Underwriters shall decline to purchase the Shares for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters’ Expenses. If the Company shall fail to tender the Shares
for delivery to the Underwriters for any reason or the Underwriters shall decline to purchase the
Shares for any reason permitted under this Agreement, the Company will reimburse the Underwriters
for all reasonable out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of the Shares, and
upon demand the Company shall pay the full amount thereof to the Representative. If this Agreement
is terminated pursuant to Section 9 by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on account of those
expenses.
27
12. Research Analyst Independence. The Company acknowledges that the Underwriters’ research
analysts and research departments are required to be independent from their respective investment
banking divisions and are subject to certain regulations and internal policies, and that such
Underwriters’ research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the offering that differ from
the views of their respective investment banking divisions. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company may have against the
Underwriters with respect to any conflict of interest that may arise from the fact that the views
expressed by their independent research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Company by such Underwriters’ investment
banking divisions. The Company acknowledges that each of the Underwriters is a full service
securities firm and as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long or short positions
in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
13. No Fiduciary Duty. The Company acknowledges and agrees that in connection with this
offering, sale of the Shares or any other services the Underwriters may be deemed to be providing
hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties
or any oral representations or assurances previously or subsequently made by the Underwriters: (i)
no fiduciary or agency relationship between the Company and any other person, on the one hand, and
the Underwriters, on the other, exists; (ii) the Underwriters are not acting as advisors, expert or
otherwise, to the Company, including, without limitation, with respect to the determination of the
public offering price of the Shares, and such relationship between the Company, on the one hand,
and the Underwriters, on the other, is entirely and solely commercial, based on arms-length
negotiations; (iii) any duties and obligations that the Underwriters may have to the Company shall
be limited to those duties and obligations specifically stated herein; and (iv) the Underwriters
and their respective affiliates may have interests that differ from those of the Company. The
Company hereby waives any claims that the Company may have against the Underwriters with respect to
any breach of fiduciary duty in connection with this offering.
14. Notices, Etc. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile
transmission to Barclays Capital Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Syndicate Registration (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of
any notice pursuant to Section 8(c), to the Director of Litigation, Office of the
General Counsel, Barclays Capital Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; and
(b) if to the Company, shall be delivered or sent by mail or facsimile
transmission to the address of the Company set forth in the Registration Statement,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇).
28
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof. The Company shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by Barclays Capital Inc.
15. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those persons, except that (A)
the indemnities of the Company contained in Section 8 of this Agreement shall also be deemed to be
for the benefit of the partners, directors, officers and employees of the Underwriters and each
person or persons, if any, who control any Underwriter within the meaning of Section 15 of the
Securities Act and (B) the indemnity agreement of the Underwriters contained in Section 8(b) of
this Agreement shall be deemed to be for the benefit of the directors of the Company, the officers
of the Company who have signed the Registration Statement and any person controlling the Company
within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in this Section 15, any
legal or equitable right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
16. Survival. The respective indemnities, representations, warranties and agreements of the
Company and the Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Shares
and shall remain in full force and effect, regardless of any investigation made by or on behalf of
any of them or any person controlling any of them.
17. Definition of the Terms “Business Day” and “Subsidiary". For purposes of this Agreement,
(a) “business day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on
which banking institutions in New York are generally authorized or obligated by law or executive
order to close and (b) “subsidiary” has the meaning set forth in Rule 405.
18. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
19. Counterparts. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
29
If the foregoing correctly sets forth the agreement between the Company and the Underwriters,
please indicate your acceptance in the space provided for that purpose below.
| Very truly yours, FIRST INTERSTATE BANCSYSTEM, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to the Underwriting Agreement]
Accepted:
Barclays Capital Inc.
For itself and as Representative
of the several Underwriters named
in Schedule 1 hereto
For itself and as Representative
of the several Underwriters named
in Schedule 1 hereto
By Barclays Capital Inc.
By:
|
||||
| Authorized Representative |
[Signature Page to the Underwriting Agreement]
SCHEDULE 1
| Number of Shares of | ||||
| Underwriters | Firm Shares | |||
Barclays Capital Inc. |
||||
▇.▇. ▇▇▇▇▇▇▇▇ & Co. |
||||
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. |
||||
Sandler ▇’▇▇▇▇▇ & Partners, L.P. |
||||
Total |
||||
SCHEDULE 2
PERSONS DELIVERING LOCK-UP AGREEMENTS
[OMITTED]
SCHEDULE 3
ORALLY CONVEYED PRICING INFORMATION
[OMITTED]
SCHEDULE 4
ISSUER FREE WRITING PROSPECTUS
[OMITTED]
EXHIBIT A
LOCK-UP LETTER AGREEMENT
[OMITTED]
EXHIBIT B-1
FORM OF OPINION OF ISSUER’S COUNSEL
[OMITTED]
EXHIBIT B-2
FORM OF OPINION OF ISSUER’S REGULATORY COUNSEL
[OMITTED]
EXHIBIT B-3
FORM OF OPINION OF THE COMPANY’S GENERAL COUNSEL
[OMITTED]