EXHIBIT 10.1
INVESTMENT AGREEMENT
This Investment Agreement dated as of July 31, 1995, between NORWEST
CORPORATION, a Delaware corporation ("Norwest"), and the undersigned
shareholders of VALLEY-HI INVESTMENT COMPANY ("the Company"), a Texas
corporation (collectively, the "Shareholders").
WHEREAS Norwest and the Company are parties to an Agreement and Plan of
Reorganization dated as of March 21, 1995, (the "Reorganization Agreement")
providing for the merger of a wholly-owned subsidiary of Norwest with and into
the Company (the "Merger") in exchange for a number of shares of common stock of
Norwest, par value $1-2/3 per share ("Norwest Common Stock"), under the terms
and conditions set forth therein,
WHEREAS the Reorganization Agreement provides that the shares of Norwest
Common Stock to be issued in the Merger (the "Shares") will be issued in a
private transaction pursuant to one or more exemptions from registration under
the Securities Act of 1993, as amended (the "Securities Act") at the time of the
consummation of the Merger but that the Shares will be subject to registration
rights as set forth in this Investment Agreement,
WHEREAS the parties wish to set forth certain representations, agreements
and undertakings for the purpose of qualifying the Shares for such exemptions
from registration and to fix the terms and conditions of such registration
rights,
WHEREAS it is the parties' intention that the Merger qualify as a tax-free
reorganization under Section 368(a)(2)(E) of the Internal Revenue Code of 1986,
as amended (the "Code"), and the rules, regulations and interpretations
promulgated or issued thereunder, and
WHEREAS as a condition to Norwest's agreement to grant the registration
rights set forth herein, Norwest is requiring that each of the Shareholders
provide and enter into certain representations, warranties, agreements, and
indemnifications in connection with the transfer of the Shares and the
qualification of the Merger as a tax-free reorganization under the Code.
NOW, THEREFORE, the parties hereto, in consideration of the premises and of
the mutual covenants and agreements contained herein, agree as follows:
1. REPRESENTATIONS AND COVENANTS OF SHAREHOLDERS. In order to induce
Norwest to consummate the Merger contemplated by the Reorganization Agreement
and to issue and exchange the Shares for the shares of the Common Stock of the
Company held by each of the Shareholders, each of the Shareholders, with respect
to himself or itself, represents and warrants to, or agrees with, Norwest as
follows:
(a) Ownership of Shares. As of the date hereof, each Shareholder: (i)
holds of record or beneficially that number of shares of the Common Stock of the
Company set forth opposite his or its name on Schedule 1(a) to this Investment
Agreement ( the "Company Shares"); (ii) has good title to all Company Shares
held by such Shareholder, free and clear of all liens, claims, and encumbrances,
except as set forth on Schedule 1(a); and (iii) is domiciled, for purposes of
compliance with blue sky filing requirements in paragraph 2(e), in the state
shown opposite each Shareholder's name on Schedule 1(a).
(b) Information with respect to Norwest. Norwest has furnished to each of
the Shareholders, and each of the Shareholders has received and reviewed, either
alone or with the assistance of counsel or his or her regular financial advisor,
prior to the date on which shareholder approval of the Merger was obtained by
the Company (the "Shareholder Approval Date"), each of the following documents:
(i) Norwest's annual report on Form 10-K for the year ended December 31, 1994,
(ii) each of Norwest's quarterly reports on Form 10-Q filed with the Securities
and Exchange Commission (the "SEC") for each of the quarters between January 1,
1995 and the Shareholder Approval Date, (iii) Norwest's annual report to
shareholders for its most recently completed fiscal year and its notice and
proxy statement for its most recent annual meeting of stockholders, and (iv) all
other documents, if any, filed with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") from January 1, 1995 to the Shareholder Approval Date.
(c) Shareholder Intent/Legending of Certificates.
(i) Investment Intent. Each Shareholder (1) has such knowledge and
experience in financial matters that the Shareholder is capable of
evaluating the merits and risks of the acquisition of the Shares and has
requested, received, reviewed and considered all information the
Shareholder deems relevant in making an informed decision to acquire the
Shares, (2) intends to acquire the Shares12o be received in the Merger for
investment only and with no present intention of distributing or reselling
any of such Shares (other than for sales pursuant to this Investment
Agreement and the Registration Statement (as defined below), or sales
pursuant to this Investment Agreement which are otherwise in compliance
with the Securities Act and the rules and regulations promulgated
thereunder), and (3) agrees that, for a period of two (2) years from the
date the Shares are issued, the Shareholder will not, directly or
indirectly, offer, sell, pledge, transfer, or otherwise dispose of (or
solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the Shares, other than in compliance with the Reorganization
Agreement, this Investment Agreement, the Registration Statement (as
hereinafter defined) and the Securities Act and the rules and regulations
promulgated thereunder.
(ii) Tax Matters. Each of the Shareholders represents and warrants to
Norwest and to each other Shareholder who is a party to this Investment
Agreement that there is no present plan or intention by him or it to sell,
exchange, or otherwise
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dispose of, a number of Shares received in the transaction that would
reduce the Shareholders' ownership of the Shares, as a group, to a number
of shares having a value, as of the Effective Date of the Merger (as
defined in the Reorganization Agreement), of less than 50 percent of the
"Exchanged Value". For the purposes of this Investment Agreement, the term
"Exchanged Value" shall be the aggregate value as of the Effective Date of
the Merger of the cash, Norwest Common Stock and other property received by
the Shareholders in exchange for the formerly outstanding stock of the
Company and pursuant to the exercise of dissenters' rights.
(iii) Legending of Certificates. Each Shareholder acknowledges and
agrees that the Shares being issued in accordance with the Reorganization
Agreement (1) have not been registered under the Securities Act in reliance
upon one or more exemptions from registration under the Securities Act, (2)
are subject to certain restrictions on transfer as set forth in Exhibit B
to the Reorganization Agreement, and (3) that the certificates evidencing
the shares will bear the following restrictive legend:
"The shares represented by this certificate were issued in
connection with the merger described in that certain Agreement and
Plan of Reorganization and related Agreement and Plan of Merger dated
March 21, 1995, by and between Norwest Corporation ("Norwest") and
Valley-Hi Investment Company and are subject to certain restrictions
on transfer set forth in that certain Investment Agreement dated July
31, 1995 and the shareholders named therein (the "Investment
Agreement"), and were issued without registration under the Securities
Act of 1933, as amended (the "Securities Act") in reliance on one or
more exemptions therefrom. These shares may not be sold or otherwise
transferred except pursuant to a registration statement under the
Securities Act, or upon receipt by Norwest Corporation of an opinion
of counsel reasonably satisfactory to it that an exemption from
registration under the Securities Act is available, and except in
compliance with the Investment Agreement.
(iv) Each of the Shareholders further acknowledges and understands
that Norwest is relying on the truth and accuracy of the representations
made by each Shareholder herein for purposes of, among other matters,
establishing the existence of such exemptions.
(d) Shareholder Information. Each Shareholder covenants and agrees (i) to
furnish to Norwest, in writing, any information relating to the Shareholder
which Norwest reasonably determines to be necessary for disclosure in any
Registration Statement covering the Shares (or any amendment thereto) or for the
purpose of complying with an exemption from registration or applicable state
securities laws, promptly after request therefor by Norwest, (ii) that the
Shareholder will discuss such information with Norwest or its representatives,
upon the request of Norwest, and (iii) that the Shareholder will otherwise
cooperate with Norwest to achieve compliance with applicable exemptions and
applicable federal and state securities laws. Each Shareholder warrants that
all information to be
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furnished by the Shareholder to Norwest pursuant to this paragraph 1(d) shall be
true and correct.
(e) Compliance with Securities Law and Transfer Requirements. Each
Shareholder agrees with Norwest that the Shareholder will fully comply with all
requirements under the Securities Act and the Exchange Act, including without
limitation the prospectus delivery requirements under the Securities Act and the
provisions of Rule 10b-6 of the Exchange Act, in connection with any sale or
distribution of the Shares pursuant to the Registration Statement, and with the
Transfer procedures set forth in paragraph 3 hereof. Each Shareholder further
agrees that no Transfer of the Shares may be made to the public except in an
"ordinary trading transaction." As used in this Investment Agreement, an
"ordinary trading transaction" means a sale of the Shares on a nationally-
recognized securities exchange using the services of a broker-dealer registered
in the state where the Transfer is to occur, and without the use of special
selling efforts or methods, but does not include the writing of options or other
derivative securities on the Shares (whether or not such options or derivative
securities are listed on an options or other securities exchange.)
(f) Capacity and Enforceability. Each Shareholder represents, warrants and
covenants to Norwest that (i) the Shareholder has full right, power, authority
and capacity to enter into this Investment Agreement and to consummate the
transactions contemplated hereby, and (ii) upon its execution and delivery, this
Investment Agreement shall constitute a valid and binding obligation of the
Shareholder, enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors and contracting parties
generally and except as enforceability may be subject to general principles of
equity.
2. REGISTRATION PROCEDURES AND EXPENSES. Following the Effective Date of
the Merger, Norwest agrees to take the following actions:
(a) Filing and Effectiveness of Registration Statement. Norwest hereby
represents and warrants to Shareholders that as of the date of this Agreement,
Norwest qualifies for the use of Form S-3 under the Securities Act for the
transactions contemplated herein. Subject to paragraph 2(b) below, Norwest will
prepare and file with the SEC a registration statement on Form S-3 or on such
other short form registration statement as may be then available to Norwest
covering all of the Shares (the "Registration Statement") within 90 days
following the Effective Date of the Merger, and shall use its best efforts to
cause the Registration Statement to become effective as soon as practicable
thereafter; provided, however, that Norwest shall have the right to delay such
filing and/or effectiveness (i) until the Selling Stockholders and their counsel
(if any) have reviewed and approved the information included in the Registration
Statement about the Selling Stockholders; or (ii) in order to qualify the
initial issuance of the Shares for one or more exemptions from registration
under the Securities Act and to comply with any requirements imposed by the SEC
on the registrations of securities for re-sale.
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(b) Additional Right to Delay Effectiveness of Registration. In addition
to the rights granted in Section 2(a), Norwest shall have the right to delay
effectiveness of the Registration Statement for up to three successive 30-day
periods, provided, however, that prior to each such 30-day deferral, Norwest
shall have delivered, to the Shareholder a certificate signed by the Chairman,
the President, or any Executive Vice President of Norwest stating that in the
good faith judgment of Norwest, it would be detrimental to Norwest and its
stockholders for Norwest to immediately proceed with the effectiveness of such
Registration Statement.
(c) Amendments or Subsequent Registration Statement. Norwest shall,
subject to paragraph 3 below, prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective until
the earlier of (i) the date that all of the Shares have been sold pursuant
thereto, or (ii) until all of the Shares owned by the Shareholders may be sold
in a public distribution, pursuant to Rule 144(c) through (i) of the SEC or any
other rule of similar effect, without the registration of such Shares under the
Securities Act; or, in lieu of filing an amendment or supplement to the
Registration Statement, Norwest may, at its option, file and cause to become
effective a subsequent registration statement on Form S-3 or on such other form
as may be then available to Norwest covering the Shares to permit the Transfer
(as defined in paragraph 3(a)(i) hereof) of the Shares from time to time. If
Norwest elects to file such subsequent registration statement which thereafter
becomes effective, such subsequent registration statement, upon its
effectiveness, shall be deemed the "Registration Statement" for all purposes of
this Investment Agreement. The period from the effective date of the
Registration Statement through the earlier of the dates described in clauses (i)
and (ii) of this paragraph 2(c) is herein referred to as the "Effective Period".
(d) Copies of Prospectus. Norwest shall furnish to the Shareholders with
respect to the Shares registered on such Registration Statement copies of the
preliminary prospectuses and prospectuses as required by the Securities Act and
such other documents as the Shareholders may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the Shares by
the Shareholders.
(e) Blue Sky Filings. Norwest shall file documents required of Norwest for
routine blue sky clearance in the state of Texas, or such other state in which a
Shareholder may be domiciled, except that Norwest shall not be required to
obtain blue sky clearance for the Shares in any other state where Norwest may be
required to qualify to do business as a foreign corporation or as a dealer in
any state where it is not so qualified, to conform its capitalization or the
composition of its assets at the time to the securities or blue sky laws of such
state, to take any action which would subject it to service of process in suits
other than those arising out of the offer and sale of the Shares covered by such
Registration Statement, or to subject itself to taxation in any state where it
is not so subject at the time Norwest is asked to obtain blue sky clearance.
(f) Expenses. Norwest agrees to bear all expenses in connection with the
registration of the Shares on such Registration Statement and the satisfaction
of the blue
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sky requirements set forth in this Investment Agreement, except underwriting
discounts and selling commissions, and fees and expenses, if any, of counsel and
other advisors to the Shareholders.
(g) Underwriters. Norwest understands that the Shareholders disclaim
being underwriters for purposes of the Securities Act, but if any of the
Shareholders are deemed to be underwriters that fact shall not relieve Norwest
or any of the Shareholders of any of their respective obligations under this
Investment Agreement.
3. TRANSFERS OF SHARES AFTER REGISTRATION; LIMITATIONS ON TRANSFERS;
AMENDED REGISTRATION STATEMENT.
(a)(i) Transfers. The Shareholders agree that none of them will effect any
disposition of any of the Shares or any interest therein for value, whether by
sale, assignment, pledge, or otherwise (a "Transfer") unless such Shareholder
has complied with the provisions of this paragraph 3. Each Shareholder agrees
that no Transfer of the Shares may be made during the Effective Period, unless
the Shareholder desiring to make a Transfer shall have first given Norwest five
(5) business days (the "Notice Period") written notice of the proposed Transfer
prior to the date the proposed Transfer will occur, which notice shall be in the
form attached hereto as Exhibit A (the "Transfer Notice"), and Norwest does not
elect in writing as provided in paragraph 3(b) below to defer any such proposed
Transfer. The Transfer Notice to Norwest shall be deemed to have been given to
Norwest, for purposes of computing the Notice Period, on the date Norwest
actually receives the Transfer Notice. The Transfer Notice shall specify the
number of Shares proposed to be transferred, and identify the registered broker-
dealer(s) (if applicable) who will effect the Transfers. If any Transfer is to
be made otherwise than pursuant to the Registration Statement and the prospectus
included therein, the Transfer Notice shall also describe the manner in which
such Transfer is to be made, and be accompanied by an opinion of counsel
experienced in securities law matters reasonably satisfactory to Norwest,
stating, in substance, that registration under the Securities Act is not
required with respect to the Transfer and that the Transfer will not result,
directly or indirectly, in a violation by Norwest of any applicable federal and
state securities laws. For purposes of this Investment Agreement, a Transfer
shall be deemed to have occurred on the date (A) the order to sell any Shares is
placed with a registered broker-dealer, or (B) Shareholder enters into any
agreement or undertaking (other than in the circumstances described in clause
(A) above) pursuant to which the Shareholder becomes irrevocably and
unconditionally committed to dispose of any Shares. A pledge of any Shares to a
third party for purposes of security (a "Pledge") shall not be deemed a Transfer
for purposes of this paragraph 3 if the Shareholder making the Pledge has
delivered to Norwest a notice in the form attached hereto as Exhibit C and the
opinion of counsel referred to above in this paragraph 3(a) prior to the Pledge.
(a)(ii) Limitations of Number of Transfers. Each Shareholder, other than
the ▇▇▇ ▇▇▇▇▇▇▇ Trust Number One (the "Trust") as provided below, agrees that
(i) a Transfer Notice may not be given to Norwest and a Transfer may not be made
more frequently than once every three months in any twelve month period elapsing
during the Effective Period and (ii) any proposed transfer shall be for not less
than 2,000 Shares per Transfer. The
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Trust, The ▇▇▇ ▇▇▇▇▇▇▇ Trust Number Two ("Trust Two"), any successor trust to
either of the foregoing, and except as provided below with respect to certain
beneficiaries, any one or more permitted assignees of the Trust pursuant to
Section 8 hereof, when considered as a whole, may give a Transfer Notice to
Norwest and make a Transfer of the Shares not more frequently than once every 45
days in any twelve-month period elapsing during the Effective Period, with any
such Transfer to cover not less than 10,000 shares. Notwithstanding the
foregoing, the two children of ▇▇▇ ▇▇▇▇▇▇▇, the grantor of the Trust and of
Trust Two, who are beneficiaries of Trust Two, following the distribution to
them of any Shares then held by Trust Two, shall each be entitled to make the
maximum number of Transfers permitted under this sub-paragraph(ii) of Section
3(a) in a twelve-month period, without regard to the number of Transfers made by
Trust Two or the other beneficiary thereof in the same twelve-month period,
subject, however, to any other limitations on, or requirements for such
Transfers set forth in sub-paragraph (ii) or in this Investment Agreement.
(b) Notice of Deferral of Proposed Transfer. If Norwest elects to defer
the proposed Transfer as provided in paragraph 3 (c) or 3(d) below, then on or
before 5:00 p.m. (Minneapolis, Minnesota time) on the date the Notice Period
expires, Norwest shall notify the Shareholder from whom the Transfer Notice was
received (the "Transferring Shareholder") that the proposed Transfer must be
deferred either (A) because, in the opinion of Norwest's counsel, the
Registration Statement may be required to be amended or supplemented so that a
Transfer of the Shares pursuant to the Registration Statement can be effected in
compliance with the Securities Act and the Exchange Act, or (B) because Norwest
has given the Shareholders the certificate described in paragraph 3(d) below.
If Norwest does not elect to defer the proposed Transfer, then Norwest will so
advise the Transferring Shareholder in writing on or before the date and time
the Notice Period expires, and such Transfer must thereafter be completed as set
forth in the Transfer Notice on or before the earlier of (A) the fifth business
day following the expiration of the Notice Period, or (B) the date the
Transferring Shareholder receives a certificate described in paragraph 3(d)
below. A Transfer to the public in an ordinary trading transaction will be
deemed to be "completed" for purposes of this paragraph on the date the order to
sell (the "trade") is executed by the broker-dealer.
(c) Right to Amend Registration Statement. If Norwest notifies the
Shareholders (whether or not Norwest has received a Transfer Notice) that the
Registration Statement may be required to be amended or supplemented so that a
Transfer of the Shares pursuant to the Registration Statement can be effected in
compliance with the Securities Act and the Exchange Act, then (i) Norwest shall,
within twenty (20) business days after the date of such notice, prepare and file
with the SEC such amendments and supplements to the Registration Statement as
may be necessary to permit the Shareholders to Transfer their Shares pursuant to
the Registration Statement in compliance with the Securities Act and the
Exchange Act, and (ii) until such amendment or supplement becomes effective
pursuant to the rules and regulations promulgated under the Securities Act, none
of the Shareholders shall effect any Transfer of the Shares pursuant to the
Registration Statement. Notwithstanding the foregoing, the obligation of
Norwest to file any amendment or supplement to the Registration Statement shall
not apply with respect to any amendment or
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supplement relating to information supplied by any of the Shareholders or any
other person selling shares pursuant to the Registration Statement unless the
Shareholders or such other person shall have given prior written notice to
Norwest that an amendment or supplement is required, in which case (i) Norwest
shall file such amendment or supplement within twenty(20) business days
following the date such notice is received by Norwest, and (ii) until such
amendment or supplement becomes effective pursuant to the rules and regulations
promulgated under the Securities Act, none of the Shareholders shall effect any
Transfer of the Shares pursuant to the Registration Statement.
(d) Right to Defer Transfer. If Norwest shall furnish to the Transferring
Shareholder a certificate signed by the Chairman, the President, or any
Executive Vice President of Norwest stating that in the good faith judgment of
Norwest, it would be materially detrimental to Norwest and its stockholders for
the Shareholder to immediately proceed with the proposed Transfer, (i) Norwest
shall have the right to defer such Transfer for a reasonable period not to
exceed 30 days, and (ii) until the expiration of such 30-day period (or any
successive 30-day period to which Norwest shall become entitled through the
execution and delivery to the Transferring Shareholder of one or more additional
certificates prior to the expiration of such 30-day period), none of the
Shareholders shall effect any Transfer of the Shares. Notwithstanding any
exercise by Norwest of this deferral right, the Transferring Shareholders shall
have the right to effect a Transfer of the Shares during the period commencing
on the fifth business day after each date (a "Filing Date") on which Norwest
files with the SEC a quarterly report on Form 10-Q or an annual report on Form
10-K or, solely at Norwest's option a current report on Form 8-K, setting forth
its quarterly or annual summary statement of earnings (as may then be
applicable) and ending on the tenth business day following such date provided
that (i) the Transferring Shareholder has first given Norwest a Transfer Notice
not later than five business days prior to the proposed effective date of such
Transfer within such period; and (ii) Norwest does not exercise its right to
defer such Transfer following receipt of such notice from the Transferring
Shareholder by delivering the certificate described in the first sentence of
this paragraph 3(d). Any such certificate delivered subsequent to a Filing Date
shall be effective only if based on events occurring or circumstances arising
subsequent to such Filing Date.
(e) Transfer Procedures. During the Effective Period, if a Transfer has
been made in compliance with this Investment Agreement the Shareholder shall
furnish to Norwest's Transfer Agent the certificates evidencing the Shares being
transferred, together with (i) a representation letter in the form of Exhibit B
hereto, addressed to the Transfer Agent and Norwest and signed by the
Shareholder making the Transfer, and (ii) any other opinions or certifications
required under the Investment Agreement and such other documents as Norwest's
Transfer Agent may reasonably require.
4. INFORMATION TO BE FURNISHED TO SHAREHOLDERS. So long as the
Registration Statement is effective, Norwest shall furnish to each of the
Shareholders as soon as practicable after available, one copy of (i) its annual
report to shareholders (which shall contain audited financial statements
prepared in accordance with generally accepted accounting principles), (ii) such
quarterly reports to shareholders which Norwest may prepare and distribute from
time to time, and (iii) a full copy of the Registration Statement
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covering the Shares (excluding exhibits). In addition, upon the reasonable
request of any of the Shareholders, Norwest shall furnish to such Shareholder
any other information that is generally made available to the public by Norwest.
5. TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed by this Investment Agreement upon the transferability of the Shares
shall terminate as to any particular shares when such Shares shall have been
effectively registered under the Securities Act and sold or otherwise disposed
of in accordance with the intended method of disposition set forth in the
Registration Statement, or at such time as an opinion of counsel satisfactory to
Norwest shall have been rendered to the effect that such conditions are not
necessary in order to comply with the Securities Act.
6. INDEMNIFICATION.
(a) Definitions. As used in this paragraph 6, (i) the term "Registration
Statement" shall include any preliminary prospectus, final prospectus, exhibit,
amendment or supplement included in or relating to the registration statement
referred to in this Investment Agreement, and (ii) the term "untrue statement"
shall include any statement of a material fact in the Registration Statement
which is (or is alleged to be) untrue, and any omission (or alleged omission) to
state in the Registration Statement a material fact required to be stated
therein or necessary to make any statement therein, in the light of the
circumstances under which it was made, not misleading.
(b) Indemnification of the Shareholders. Norwest agrees to indemnify and
hold harmless each Shareholder (and, if any Shareholder is not a natural person,
each officer, director, trustee or partner of such Shareholder and each person
who controls such Shareholder within the meaning of Section 15 of the Securities
Act) from and against any claims, losses, damages or liabilities to which such
Shareholder (or any such officer, director, partner or controlling person) may
become subject (under the Securities Act or otherwise) insofar as such claims,
losses, damages or liabilities arise out of, or are based upon, any untrue
statement of a material fact contained in the Registration Statement, and
Norwest will indemnify such Shareholder for reasonable attorneys' fees and
expenses incurred in investigating, preparing to defend or defending against any
such claims, losses, damages or liabilities; provided, however, that Norwest
shall not be liable to indemnify any Shareholder to the extent that such claim,
loss, damage or liability arises out of or is based upon (i) an untrue statement
made in reliance upon and in conformity with information furnished to Norwest by
or on behalf of such Shareholder specifically for use in preparation of the
Registration Statement, or (ii) Transfers not in compliance with the terms of
this Investment Agreement.
(c) Indemnification of Norwest. Each Shareholder agrees to indemnify and
hold harmless Norwest, each officer of Norwest who signs the Registration
Statement, each director of Norwest and each other person selling Shares
pursuant to the Registration Statement (and each person, if any, who controls
such other person within the meaning of Section 15 of the Securities Act and
each officer, director or partner of such person) from and against any claims,
losses, damages or liabilities to which Norwest (or any such officer,
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director or other person) may become subject (under the Securities Act or
otherwise), insofar as such claims, losses, damages or liabilities arise out of,
or are based upon (A) any untrue statement of a material fact made in reliance
upon and in conformity with information furnished by or on behalf of such
Shareholder specifically for use in preparation of the Registration Statement,
or (B) any Transfer by such Shareholder not in compliance with applicable
federal and state securities laws; and such Shareholder will reimburse Norwest
(and any such officer, director or other person) for reasonable attorneys' fees
and expenses incurred in investigating, preparing to defend and defending
against any such claims, losses, damages or liabilities.
(d) Notice of Claim and Defense of Claim or Action. Promptly after receipt
of notice of any claim or commencement of any action for which indemnification
is sought under this paragraph 6, the person seeking indemnification (the
"Claimant") shall give the person from whom indemnification is sought (the
"Indemnifier") written notice of such claim or the commencement of such action
("Notice"). If, within five (5) business days of receipt of such Notice,
Indemnifier notifies the Claimant that it has elected to assume the defense of
such claim or action, with counsel reasonably satisfactory to the Claimant, then
the Indemnifier shall not be liable to such Claimant for any legal expenses
subsequently incurred by the Claimant in such defense; provided, however, that
if, in the reasonable judgment of the Claimant, there is or would be a conflict
of interest that would make it inappropriate for the same counsel to represent
both the Claimant and the Indemnifier, then the Claimant shall be entitled to
retain its own counsel at the expense of the Indemnifier.
7. NOTICES. Except for a notice of deferral of a proposed Transfer by
Norwest under paragraph 3(b), any notice or other communication provided for
herein or given hereunder to a party hereto shall be in writing and shall be
delivered in person or sent by telecopy to the address or telecopy number set
forth below and a copy of such notice shall be mailed by first class registered
or certified mail, postage prepaid, addressed as follows:
If to Norwest:
Norwest Corporation
Sixth and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Secretary
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to any one or all of the Shareholders:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
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and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
One Alamo Center
▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇'▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
T. ▇▇▇▇ ▇▇▇▇▇▇▇▇,
Cauthorn, Hale, Hornberger, Fuller, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
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Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address with respect to a party as such party shall notify the
other in writing as above provided.
8. SUCCESSORS AND ASSIGNS. This Investment Agreement and the rights and
obligations of the Shareholder hereunder shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, but
the rights granted hereunder shall not be assignable by any Shareholder by
operation of law or otherwise without the prior written consent of Norwest,
except that such consent shall not be required in the event of transfer by
bequest, devise, inheritance or law of intestacy or gift or in the event of a
transfer by the ▇▇▇ ▇▇▇▇▇▇▇ Trust Number One to any beneficiary of such trust or
to the ▇▇▇ ▇▇▇▇▇▇▇ Trust Number Two or a transfer from the ▇▇▇ ▇▇▇▇▇▇▇ Trust
Number Two to any beneficiary of such Trust. In the event of a transfer from
the ▇▇▇ ▇▇▇▇▇▇▇ Trust Number Two to the beneficiaries of such Trust, the right
to make the number of transfers permitted under Section 3(a) above shall be
allocated equally between the beneficiaries of such Trust, or in such other
manner as the Trustees of the ▇▇▇ ▇▇▇▇▇▇▇ Trust Number Two may designate in
writing.
11
9. GOVERNING LAW. This Investment Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State of Minnesota.
10. COUNTERPARTS. This Investment Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
shall constitute but one instrument.
11. CAPTIONS. The captions contained in this Investment Agreement are for
convenience of reference only and do not form a part of the Investment
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Investment
Agreement as of the date first above written.
NORWEST CORPORATION SHAREHOLDERS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Trust No. One
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Its: Executive Vice President By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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As Trustee
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
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As Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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As Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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[Signature Page to Investment Agreement]
12
Schedule 1 (a)
NUMBER OF
COMPANY SHARES
NAME OF SHAREHOLDER HELD LIENS* STATE OF DOMICILE
------------------- -------------- ------ -----------------
The ▇▇▇ ▇▇▇▇▇▇▇ Trust
No. One 150,000 None Texas
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 11,288 None Texas
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 7,481 None Texas
▇▇▇▇ ▇▇▇▇▇▇▇▇ 7,481 None Texas
*
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If none, so indicate. If the Company Shares are subject to one or more liens,
describe below.
EXHIBIT A TO INVESTMENT AGREEMENT
NOTICE OF PROPOSED TRANSFER (SALE)
___________, 199_
Norwest Corporation
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▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Secretary
RE: Notice of Sale of Common Stock Pursuant to an Investment Agreement dated
July 31, 1995 relating to the Acquisition of VALLEY-HI INVESTMENT COMPANY
by Norwest Corporation
Ladies and Gentlemen::
I am a party to the above-referenced Investment Agreement and a "Selling
Stockholder" named in the form of prospectus included in the Registration
Statement on Form S-3 (the "S-3 Registration Statement") covering shares of the
common stock ($1 2/3 par value) (the "Common Stock") of Norwest Corporation
("Norwest") issued in connection with the above Acquisition. In accordance with
the provisions of Section 3 of the Investment Agreement, you are hereby notified
that I propose to sell shares (the "Shares") of Norwest Common Stock issued
to me in the Acquisition pursuant to the S-3 Registration Statement (the
"Proposed Transfer"). In connection with the Proposed Transfer, I intend to
place an order to sell the Shares with the registered broker-dealer identified
below upon expiration of the Notice Period described below.
Name of Selling Broker: _____________________________
Address: _____________________________
_____________________________
Contact Person: _____________________________
Telephone and Fax Nos.: _____________________________
I understand that (I) if, on or before 5:00 p.m. Minneapolis, Minnesota
time on the fifth business day from the date Norwest receives this Notice (the
"Notice Period"), Norwest notifies me by registered or certified first class
mail or by fax at the address and/or fax number
-1-
listed below that the Proposed Transfer must be deferred pursuant to the
Investment Agreement (the "Deferral Notice") in the form set forth below, I WILL
NOT PROCEED WITH THE PROPOSED TRANSFER AS DESCRIBED IN THIS NOTICE; or (II) if
Norwest notifies me in the form set forth below on or before the time and day
referred to in clause (i) above that it has not elected to defer the Proposed
Transfer may be effected as outlined in this Notice, I MUST PLACE THE ORDER TO
SELL (THE "TRADE") THE SHARES WITH THE BROKER-DEALER AND THE TRADE MUST BE
EXECUTED NOT LATER THAN 5 BUSINESS DAYS AFTER THE DATE THE NOTICE PERIOD
EXPIRES, AND BEFORE I RECEIVE A DEFERRAL NOTICE, IF ANY, FROM NORWEST.
Norwest should send all notices contemplated by the Investment Agreement
and relating to Proposed Transfer to me at the address shown below:
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▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇ Zip Code
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Fax No.
If no address is provided, I understand Norwest will send the notice to the
address and/or fax number for notices to Shareholders shown in the Investment
Agreement.
I have reviewed the form of the Prospectus dated __________, 199_, and
hereby represent to Norwest that the information contained therein with respect
to me as a Selling Stockholder is true and correct as of the date hereof and
will be true and correct as of the date of the delivery of the Prospectus to the
purchaser of the Shares. In anticipation that Norwest will not require that the
Proposed Transfer be deferred, I will deliver a copy of the Prospectus to the
broker-dealer named above, with instructions that such Prospectus accompany or
precede the sale of the Shares to the purchaser thereof in accordance with
Section 5(b) of the Securities Act of 1933.
I further certify that the Proposed Transfer of the Shares is being made to
the public in an "ordinary trading transaction" (as that term is defined in
Section 1(e) of the Investment Agreement) in the State of ____________ in
accordance with an exemption from registration pursuant to the blue sky laws of
such state, and without using any special selling efforts or methods.
Very truly yours,
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Name of Selling Stockholder
-2-
NORWEST CORPORATION
NOTICE
(SELECT ONE)
1. Norwest Corporation does not elect to defer the Transfer described in
the above Notice dated ______________, 19___ from _________________________.
(name of Stockholder)
2. Norwest Corporation hereby elects to defer the Transfer described in
the above Notice dated _______________, 19___ from _______________________ until
(name of Stockholder)
_____________________, 19___ pursuant to Section 3(d) of the Investment
Agreement.
The certificate required by such Section 3(d) is enclosed.
3. Norwest Corporation hereby elects to defer the Transfer described in
the above Notice dated _______________, 19___ from _______________________ until
(name of Stockholder)
_____________________, 19___ pursuant to Section 3(o) in order to permit Norwest
Corporation to amend the Registration Statement.
NORWEST CORPORATION
By:
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Its:
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-3-
EXHIBIT B TO INVESTMENT AGREEMENT
REPRESENTATION LETTER
___________________, 199_
Norwest Bank Minnesota, N.A.
Stock Transfer
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▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
RE: Notice of Sale of Common Stock Pursuant to an Investment Agreement dated
July 31, 1995 relating to the Acquisition of VALLEY-HI INVESTMENT COMPANY
by Norwest Corporation
Ladies and Gentlemen:
I am a party to the above-referenced Investment Agreement and a "Selling
Stockholder" named in the form of prospectus included in that certain
Registration Statement on Form S-3 (the "S-3 Registration Statement"). In
accordance with the provisions of Section 3(e) of the Investment Agreement, you
are hereby notified that I have sold _______ shares (the "Shares") (the
"Transfer") of the common stock ($1 2/3 par value) (the "Common Stock") of
Norwest Corporation ("Norwest") pursuant to the S-3 Registration Statement.
In connection with this transfer, and as a requirement to the transfer of
the Shares sold to the purchaser by me, I hereby represent and warrant to you
and to Norwest as follows:
a. The Transfer was made to the public in an "ordinary trading
transaction" (as that term is defined in Section 1(e) of the Investment
Agreement) by the broker-dealer identified in the Notice of Transfer sent to
Norwest, without the use of special selling efforts or methods.
b. I have delivered, or caused the broker handling the sale to
deliver, prior to the sale of the Shares to the purchaser thereof, a copy of the
Prospectus included in the S-3 Registration Statement and have otherwise have
complied with all prospectus delivery requirements under the Securities Act of
1933 (the "Securities Act"). The Transfer of the Shares is not subject to the
provisions of Rule 10b-6 promulgated under the Securities Act of 1934 (the
"Exchange Act"), or if the Transfer is subject to Rule 10b-6, the Transfer has
been made in accordance with the requirements of such rule. I have further
complied with all other
requirements of the Securities Act and the Exchange Act and the regulations
thereunder applicable to the Transfer.
c. The number of Shares being transferred, when added to any shares
previously transferred pursuant to the S-3 Registration Statement or the
Investment Agreement, do not exceed the number of shares set forth opposite my
name in the "Selling Stockholder" table in the Prospectus, and will not cause a
breach of any representation or warranty made by me in the Investment Agreement;
and
d. Norwest was given notice of the proposed Sale as required under
the Investment Agreement and did not object to the Transfer, and the Transfer
has been made in compliance with all the terms and provisions of the Investment
Agreement.
I hereby undertake to provide you with such other documentation as you may
require as Transfer Agent or as may be required under the Investment Agreement
in order to complete the transfer of the Shares.
Very truly yours,
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Name of Stockholder
-2-
EXHIBIT C TO INVESTMENT AGREEMENT
NOTICE OF PROPOSED TRANSFER (PLEDGE)
____________________, 199_
Norwest Corporation
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
and Secretary
RE: Pledge and Consent Pursuant to an Investment Agreement dated July 31,
1995 relating to the Acquisition of VALLEY-HI INVESTMENT COMPANY by
Norwest Corporation
Ladies and Gentlemen:
I am entering into a loan transaction (the "Loan") with the financial
institution identified below (the "Bank") which Loan is to be secured by, among
other collateral, a pledge of _____ shares of the Common Stock of Norwest
Corporation (the "Shares") held by me to the Bank (the "Pledge"). The Shares
were issued to me without registration under federal and state securities laws
pursuant to that certain Investment Agreement dated July 31, 1995. The
certificates evidencing the Shares bear a restrictive legend to the effect that
any transfer of such Shares is restricted by, among other things, the provisions
of the Investment Agreement. Section 1(b)(i) of the Investment Agreement
provides that I ". . .will not, directly or indirectly,. . . pledge . . .any of
the Shares. . . " except in compliance with the Investment Agreement, among
other agreements. Section 3(a) of the Investment Agreement requires me to
deliver notice to Norwest of any proposed Pledge describing the proposed Pledge,
together with an opinion of counsel that such pledge does not require
registration under the Securities Act of 1933 (the "Securities Act"), and that
Norwest consent to such pledge.
I hereby enclose the opinion of counsel required by the Investment Agreement in
connection with the proposed Pledge, and request that Norwest consent to the
proposed Pledge of the Shares to the Bank.
Name and Address of Bank:
----------------------------------------
----------------------------------------
Name of Contact Person: ----------------
Tel.: ; Fax.:
----------- ----------------
Very truly yours,
------------------------
Name of Stockholder
ACKNOWLEDGMENT BY BANK
The Bank understands and agrees that the Shares are subject to the restrictions
on transfer described in the Investment Agreement, a copy of which has been
furnished to the Bank, and that any disposition of the Shares by the Bank
following foreclosure of the Pledge will be subject to the provisions of federal
and state securities laws and the Investment Agreement.
--------------------------
Name of Bank
By
------------------------
Its
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Consent is hereby given for the pledge by the Borrower named above to the above
Bank of shares of Norwest Corporation common stock received pursuant to that
certain Investment Agreement dated July 31, 1995.
NORWEST CORPORATION
By
Its
2