CAPITAL SECURITIES
CFB CAPITAL I
______ CUMULATIVE CAPITAL SECURITIES
(LIQUIDATION PREFERENCE OF $25 PER CAPITAL SECURITY)
PURCHASE AGREEMENT
February ___, 1997
▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Community First Bankshares, Inc., a Delaware corporation (the "Company"),
and its fiduciary subsidiary, CFB Capital I, a statutory business trust
organized under the Delaware Business Trust Act (the "Delaware Act") (the
"Trust" and together with the Company, the "Offerors"), propose that the Trust
issue and sell to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. and ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated (the
"Underwriters") an aggregate of 2,400,000 of the Trust's _______ Cumulative
Capital Securities, with a liquidation preference of the $25.00 per capital
security (the "Capital Securities"), the terms of which are more fully described
in the Prospectus (as hereinafter defined). The Offerors propose that the Trust
issue the Capital Securities pursuant to an Amended and Restated Trust Agreement
among Wilmington Trust Company, as Property Trustee and Indenture Trustee, the
administrative trustees named therein (the "Administrative Trustees") and the
Company (the "Trust Agreement"). The Capital Securities will be guaranteed by
the Company with respect to distributions and payments upon liquidation,
redemption and otherwise (the "Guarantee") pursuant to a Guarantee Agreement
(the "Guarantee Agreement"), dated as of February ___, 1997, between the Company
and Wilmington Trust Company, as trustee (the "Guarantee Trustee"), and entitled
to the benefits of certain backup undertakings described in the Prospectus (as
defined herein) with respect to the Company's agreement pursuant to the Expense
Agreement (as defined herein) to pay all expenses relating to administration of
the Trust.
The proceeds of the sale of the Capital Securities will be used to purchase
junior subordinated deferrable interest debentures (the "Junior Subordinated
Debentures") issued by the Company pursuant to an Indenture, dated as of
February ___, 1997, between the Company and Wilmington Trust Company as trustee
(the "Indenture").
The Offerors hereby confirm their agreement with respect to the sale of the
Capital Securities to the Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. A registration statement on
Form S-3 (File No. _______________) with respect to the Capital Securities, the
Guarantee and the Junior Subordinated Debentures including a preliminary form of
prospectus, has been prepared by the Offerors in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and the Trust Indenture Act,
of 1939, as amended (the "Trust Indenture Act") and the rules and regulations
thereunder and has been filed with the Commission; and, if the Offerors have
elected to rely upon Rule 462(b) of the Rules and Regulations to increase the
size of the offering registered under the Act, the Offerors will prepare and
file with the Commission a registration statement with respect to such increase
pursuant to Rule 462(b). Copies of such registration statement(s) and
amendments and each related preliminary prospectus have been delivered to the
Underwriters.
If the Offerors have elected not to rely upon Rule 430A of the Rules and
Regulations, the Offerors have prepared and will promptly file an amendment to
the registration statement and an amended prospectus (including a term sheet
meeting the requirements of Rule 434 of the Rules and Regulations) if necessary
to complete the Prospectus. If the Offerors have elected to rely upon Rule 430A
of the Rules and Regulations, they will prepare and file a prospectus (or a term
sheet meeting the requirements of Rule 434) pursuant to Rule 424(b) that
discloses the information previously omitted from the prospectus in reliance
upon Rule 430A. Such registration statement, as amended at the time it is or
was declared effective by the Commission, and, in the event of any amendment
thereto after the effective date and prior to the Closing Date (as hereinafter
defined), such registration statement as so amended (but only from and after the
effectiveness of such amendment), including a registration statement (if any)
filed pursuant to Rule 462(b) of the Rules and Regulations increasing the size
of the offering registered under the Act and information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rules 430A(b) and 434(d) of the Rules and Regulations, is hereinafter called the
"Registration Statement". The prospectus included in the Registration Statement
at the time it is or was declared effective by the Commission is hereinafter
called the "Prospectus", except that if any prospectus (including any term sheet
meeting the requirements of Rule 434 of the Rules and Regulations provided by
the Offerors for use with a prospectus subject to completion within the meaning
of Rule 434 in order to meet the requirements of Section 10(a) of the Rules and
Regulations) filed by the Offerors with the Commission pursuant to Rule 424(b)
(and Rule 434, if applicable) of the Rules and Regulations or any other such
prospectus provided to you by the Offeror for use in connection with the
offering of the Capital Securities (whether or not required to be filed by the
Offeror with the Commission pursuant to Rule 424(b) of the Rules and
Regulations) differs from the prospectus on file at the time the Registration
Statement is or was declared effective by the Commission, the term "Prospectus"
shall refer to such differing prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) from and after the time such
prospectus is filed with the Commission or transmitted to the Commission for
filing pursuant to such Rule 424(b) (and Rule 434, if applicable) or from and
after the time it is first provided to you by the Offeror for such use. The
term "Preliminary Prospectus" as used herein means the preliminary prospectus
included in any Registration Statement prior to the time it becomes or became
effective under the Act and any prospectus subject to completion as described in
Rule 430A or 434 of the Rules and Regulations.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Offerors represent and warrant to, and agree with, the
Underwriters as follows:
(i) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission and the Preliminary
Prospectus, at the time of filing thereof, did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; except
that the foregoing shall not apply to statements in or
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omissions from the Preliminary Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by either
Underwriter for use in the preparation thereof.
(ii) As of the time the Registration Statement (or any
post-effective amendment thereto, including a registration statement (if
any) filed pursuant to Rule 462(b) of the Rules and Regulations increasing
the size of the offering registered under the Act) is or was declared
effective by the Commission, upon the filing or first delivery to the
Underwriters of the Prospectus (or any supplement to the Prospectus
(including any term sheet meeting the requirements of Rule 434 of the Rules
and Regulations)) and at the Closing Date (as hereinafter defined), (A) the
Registration Statement and Prospectus (in each case, as so amended and/or
supplemented) conformed or will conform in all material respects to the
requirements of the Act and the Rules and Regulations and the Registration
Statement and Prospectus (in each case as so amended and/or supplemented)
conformed or will conform in all material respects to the requirements of
the Trust Indenture Act and the rules and regulations thereunder, (B) the
Registration Statement (as so amended) did not or will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (C) the Prospectus (as so supplemented) did not or will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are or were
made, not misleading; except that the foregoing shall not apply to (i)
statements in or omissions from any such document in reliance upon, and in
conformity with, written information furnished to the Offerors by either
Underwriter specifically for use in the preparation thereof and (ii) that
part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification ("Form T-1") under the Trust Indenture Act.
If the Registration Statement has been declared effective by the
Commission, no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
initiated or, to the Offeror's knowledge, threatened by the Commission.
(iii) The documents of the Company incorporated by reference
in the Registration Statement and the Prospectus, when they were filed with
the Commission conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
materiel fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Registration Statement and the Prospectus or any further amendment or
supplement thereto, when such documents are filed with the Commission will
conform in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder, and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(iv) The consolidated financial statements of the Company,
together with the notes thereto, incorporated by reference in the
Registration Statement, Preliminary Prospectus and Prospectus comply in all
material respects with the requirements of the Act and the Exchange Act and
fairly present the consolidated financial condition of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
operations and changes in cash flows for the periods therein specified in
conformity with generally accepted accounting principles consistently
applied throughout the periods involved (except as otherwise stated in the
Registration Statement and Prospectus) and the independent public
accountants whose reports are contained therein are
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independent public accountants as required by the Act and the Rules and
Regulations. The summary financial information included in the Preliminary
Prospectus and Prospectus under the caption "Summary Consolidated Financial
Data," present fairly the information required to be stated therein.
(v) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware
and is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act"), supervised by the Board of
Governors of the Federal Reserve System (the "FRB"). The only subsidiaries
of the Company and the percentage of issued and outstanding shares of stock
of each such subsidiary owned of record and beneficially by the Company are
set forth in Exhibit A attached hereto. Each such subsidiary has been duly
organized and is validly existing and in good standing under the laws of
its jurisdiction of incorporation or organization as the case may be. Each
of the Company and its subsidiaries has full corporate power and authority
to own its properties and conduct its business as currently being carried
on and as described in the Registration Statement and Prospectus, and is
duly qualified to do business as a foreign corporation in good standing
under the corporation and financial services laws of each jurisdiction in
which the conduct of its business or ownership or lease of its properties
requires such qualification and where the failure to be so qualified would,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects, assets,
results of operations or properties of the Company and its subsidiaries
taken as a whole. Other than the foregoing subsidiaries and the Trust, the
Company owns no capital stock or other equity, ownership or proprietary
interest in any company, partnership, association, trust or other entity.
The accounts of each of the Company's subsidiaries which are banks are
insured by the Bank Insurance Fund of the Federal Deposit Insurance
Corporation (the "FDIC") up to the maximum applicable amount in accordance
with the rules and regulations of the FDIC, and no proceedings for the
termination or revocation of such membership or insurance are pending, or,
to the knowledge of the company, threatened.
(vi) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act with full trust
power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and to enter into
and perform its obligations under this Agreement, the Capital Securities,
the Common Securities and the Trust Agreement and is authorized to do
business in each jurisdiction in which such qualification is required,
except where the failure to so qualify would not have a material adverse
effect on the Company's condition (financial or otherwise), earnings,
business, prospects, assets, results of operations or properties taken as a
whole; the Trust has conducted and will conduct no business other than the
transactions contemplated by the Trust Agreement and described in the
Prospectus; the Trust is not a party to or otherwise bound by any agreement
other than those described in the Prospectus; the Trust is and will be
classified for United States federal income tax purposes as a grantor trust
and not as an association taxable as a corporation; and the Trust is and
will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(vii) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Trust nor the Company, nor any of
its Subsidiaries has incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions, or
declared or paid any
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dividends or made any distribution of any kind with respect to its capital
stock; and there has not been any change in the capital stock (other than a
change in the number of outstanding shares of Common Stock due to the
issuance of shares upon the exercise of outstanding options or warrants),
or any material change in the short-term or long-term debt, or any issuance
of options, warrants, convertible Capital Securities or other rights to
purchase the capital stock, of the Trust, the Company or any of its
Subsidiaries, or any material adverse change, or any development involving
a prospective material adverse change, in the general affairs, condition
(financial or otherwise), business, key personnel, property, prospects, net
worth or results of operations of the Trust or the Company and its
Subsidiaries, taken as a whole.
(viii) Except as set forth in the Registration Statement and
the Prospectus or in the documents incorporated therein by reference, there
is not pending or, to the knowledge of the Trust or the Company, threatened
or contemplated, any action, suit or proceeding to which the Trust or the
Company or any of its subsidiaries is a party or to which either of their
assets may be subject, before or by any court or governmental agency,
authority or body, or any arbitrator, which might result in any material
adverse change in the condition (financial or otherwise), business,
prospects, net worth or results of operations of the Trust or the Company
and its subsidiaries, taken as a whole.
(ix) There are no contracts or documents of the Trust or the
Company or any of its Subsidiaries that are required to be filed as
exhibits to the Registration Statement by the Act or by the Rules and
Regulations which contracts or documents have not been so filed.
(x) Each of this Agreement, the Indenture, the Trust Agreement,
the Guarantee and the Agreement as to Expenses and Liabilities (the
"Expense Agreement") has been duly authorized, executed and delivered by
the Company and the Trust and constitutes a valid, legal and binding
obligation of the Offerors, enforceable in accordance with its terms,
except as rights to indemnity hereunder may be limited by federal or state
securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the rights
of creditors generally and subject to general principles of equity. The
execution, delivery and performance of this Agreement, the Indenture, the
Trust Agreement, the Guarantee Agreement and the Expense Agreement and the
consummation of the transactions herein or therein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any agreement or instrument to
which the Company or the Trust is a party or by which it is bound or to
which any of its property is subject, the Company's charter or bylaws, the
Trust's Trust Agreement or its certificate of trust filed with the State of
Delaware on January ___, 1997 (the "Certificate of Trust") or any order,
rule, regulation or decree of any court or governmental agency or body
having jurisdiction over the Company or the Trust or any of the properties
of either the Company or the Trust; no consent, approval, authorization or
order of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee and the Expense Agreement or
for the consummation of the transactions contemplated hereby or thereby,
including the issuance or sale of the Junior Subordinated Debentures by the
Company and the Capital Securities by the Trust, except such as may be
required under the Act or state securities or blue sky laws; each of the
Company and the Trust has full power and authority to enter into this
Agreement, the Indenture, the Trust Agreement, the Guarantee and the
Expense Agreement, and to authorize, issue and sell the Capital Securities
as contemplated by this Agreement; and each of the Indenture, the Trust
Agreement and the Guarantee Agreement has been duly qualified under the
Trust
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Indenture Act and will conform in all material respects to the statements
relating thereto in the Registration Statement and the Prospectus.
(xi) All of the issued and outstanding shares of capital stock of
the Company, including the shares of Common Stock issued, are duly
authorized and are, or will be at the Closing Date, validly issued, fully
paid and nonassessable, have been issued, in compliance with all federal
and state securities laws, were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase
securities, and the holders thereof are not subject to personal liability
by reason of being such holders; and the capital stock of the Company,
including the Common Stock conforms to the description thereof in the
Registration Statement and Prospectus. Except as otherwise stated in the
Registration Statement and Prospectus, there are no preemptive rights or
other rights to subscribe for or to purchase, or any restriction upon the
voting or transfer of, any shares of Common Stock pursuant to the Company's
charter, bylaws or any agreement or other instrument to which the Company
is a party or by which the Company is bound. Neither the filing of the
Registration Statement gives rise to any rights for or relating to the
registration of any shares of Common Stock or other capital stock of the
Company. All of the issued and outstanding shares of capital stock of each
of the Company's subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise
described in the Registration Statement and Prospectus and except for any
directors' qualifying shares, the Company owns, or on the Closing Date
shall own, of record and beneficially, free and clear of any security
interests, claims, liens, proxies, equities or other encumbrances, all of
the issued and outstanding shares of such stock. Except as described in
the Registration Statement and the Prospectus, there are no options,
warrants, agreements, contracts or other rights in existence to purchase or
acquire from the Company or any Subsidiary of the Company any shares of the
capital stock of the Company or any Subsidiary of the Company. The Company
has an authorized and outstanding capitalization as set forth in the
Registration Statement and the Prospectus.
(xii) The Junior Subordinated Debentures have been duly
authorized by the Company and at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as described in the
Prospectus, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms except to
the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity, will be in
the form contemplated by, and entitled to the benefits of, the Indenture
and will conform in all material respects to the statements relating
thereto in the Prospectus
(xiii) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement and
Prospectus, will be validly issued and (subject to the terms of the Trust
Agreement) fully paid and nonassessable undivided beneficial interests in
the assets of the Trust and will conform to all statements relating thereto
contained in the Prospectus; the issuance of the Common Securities is not
subject to preemptive or other similar rights; and at the Closing Date all
of the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(xiv) The Capital Securities have been duly authorized by the
Trust Agreement and, when issued and delivered pursuant to this Agreement
against payment of the
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consideration set forth herein, will be validly issued and fully paid and
non-assessable undivided beneficial interests in the Trust, will be
entitled to the benefits of the Trust Agreement and will in all material
respects conform to the statements relating thereto contained in the
Prospectus; the issuance of the Capital Securities is not subject to
preemptive or other similar rights; and holders of Capital Securities will
be entitled to the same limitation of personal liability under Delaware law
as extended to stockholders of private corporations for profit.
(xv) The Indenture, the Trust Agreement, the Guarantee Agreement
and the Expense Agreement are in substantially the respective forms filed
as exhibits to the Registration Statement.
(xvi) The Company's obligations under the Guarantee are
subordinated and junior in right of payment to all Senior Indebtedness of
the Company and are, or will be, pari passu with the most senior preferred
stock hereafter issued by the Company.
(vvii) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all "Senior Indebtedness" (as defined in the
Indenture) of the Company.
(xviii) Each of the Administrative Trustees of the Trust is an
employee of the Company and has been duly authorized by the Company to
execute and deliver the Trust Agreement.
(vix) The Trust and the Company and each of its Subsidiaries
holds, and is operating in compliance in all material respects with, all
franchises, grants, authorizations, licenses, permits, easements, consents,
certificates and orders of any governmental or self-regulatory body
required for the conduct of its business and all such franchises, grants,
authorizations, licenses, permits, easements, consents, certifications and
orders are valid and in full force and effect, the failure to hold or
operate in compliance with the foregoing or the lack of a validity, force
or effect of the foregoing would not have a material adverse effect on the
condition (financial or otherwise), earnings, business, prospects, assets,
results of operations or properties of the Company and its subsidiaries
taken as a whole; and the Trust and the Company and each of its
subsidiaries is and has been in compliance in all material respects with
all applicable federal, state, local and foreign laws, regulations, orders
and decrees, except to the extent that the failure to comply would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, assets, results of operations or properties
of the Company and its subsidiaries taken as a whole.
(xx) The Company and its Subsidiaries have good and marketable
title to all property described in the Registration Statement and
Prospectus as being owned by them, in each case free and clear of all
liens, claims, security interests or other encumbrances except such as are
described in the Registration Statement and the Prospectus; the property
held under lease by the Company and its Subsidiaries is held by them under
valid, subsisting and enforceable leases with only such exceptions with
respect to any particular lease as do not interfere in any material respect
with the conduct of the business of the Company or its subsidiaries; the
Company and each of its subsidiaries owns or possesses all patents, patent
applications, trademarks, service marks, tradenames, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses,
inventions, trade secrets and rights necessary for the conduct of the
business of the Company and its subsidiaries as currently carried on and as
described in the Registration Statement and Prospectus; except as stated in
the Registration Statement and Prospectus, no name which the Company or any
of its
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Subsidiaries uses and no other aspect of the business of the Company or any
of its Subsidiaries will involve or give rise to any infringement of, or
license or similar fees for, any patents, patent applications, trademarks,
service marks, tradenames, trademark registrations, service ▇▇▇▇
registrations, copyrights, licenses, inventions, trade secrets or other
similar rights of others material to the business or prospects of the
Company and neither the Company nor any of its Subsidiaries has received
any notice alleging any such infringement or fee.
(xxi) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or bylaws; the Trust is not in
violation of the Trust Agreement or its Certificate of Trust; none of the
Company, any of its Subsidiaries or the Trust is in breach of or otherwise
in default in the performance of any material obligation, agreement or
condition contained in any bond, debenture, note, indenture, loan agreement
or any other material contract, lease or other instrument to which it is
subject or by which any of them may be bound, or to which any of the
material property or assets of the Company, any of its Subsidiaries of the
Trust is subject.
(xxii) The Trust and the Company and its subsidiaries have
filed all federal, state, local and foreign income and franchise tax
returns required to be filed and are not in default in the payment of any
taxes which were payable pursuant to said returns or any assessments with
respect thereto, other than any which the Company or any of its
subsidiaries is contesting in good faith.
(xxiii) The Offerors have not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Capital Securities and the Common Stock other than
any Preliminary Prospectus or the Prospectus or other materials permitted
by the Act to be distributed by the Company.
(xxiv) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxv) Other than as contemplated by this Agreement or
described in the Registration Statement, the Company has not incurred any
liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement, the Merger
Agreement or the consummation of the transactions contemplated hereby or
thereby.
(xxvi) Neither the Trust, the Company or any of its
subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or an "investment adviser" within the meaning of the
Investment Advisers Act of 1940, as amended.
(xxvii) No report or application filed by the Company or any of
its Subsidiaries with the FRB, OCC, Department or the FDIC, as of the date
it was filed, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading when made or
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failed to comply with the applicable requirements of the FRB, OCC,
Department or the FDIC, as the case may be.
(xxviii) The proceeds from the sale of the Capital Securities
will constitute "tier 1" capital (as defined in 12 C.F.R. Part 325).
(xxix) Neither of the Offerors nor any of their affiliates is
presently doing business with the government of Cuba or with any person or
affiliate located in Cuba.
(b) Any certificate signed by any officer of the Company or a trustee
of the Trust and delivered to either Underwriter or to counsel for either
Underwriter shall be deemed a representation and warranty by the Company to you
as to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF CAPITAL SECURITIES; ADVISORY FEE.
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Trust agrees to issue and sell 2,400,000 Capital Securities to you, and
you agree to purchase the Capital Securities from the Trust at a purchase
price per Capital Security of $25.00 per share. As compensation to the
Underwriters for their commitments hereunder and in view of the fact that the
proceeds of the sale of the Capital Securities (together with the entire
proceeds from the sale by the Trust to the Company of the Common Securities)
will be used to purchase the Junior Subordinated Debentures, the Company
hereby agrees to pay at the Closing Date to you, a commission per Capital
Security equal in amount to ths percent ( %) of the gross proceeds from
the sale of the Capital Securities to be delivered by the Trust hereunder at
the Closing Date.
The Capital Securities will be delivered by the Company to you against
payment of the purchase price therefor by certified or official bank check or
other next day funds payable to the Company at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇
Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or
such other location as may be mutually acceptable, at 9:00 a.m. Central time on
the third (or if the Capital Securities are priced, as contemplated by Rule
15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern time, on the fourth)
full business day following the date hereof, or at such other time and date as
you and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act,
such time and date of delivery being herein referred to as the "Closing Date."
Delivery of the Capital Securities may be made by credit through full fast
transfer to the accounts at The Depository Trust Company designated by you.
Certificates representing the Capital Securities, in definitive form and in such
denominations and registered in such names as you may request upon at least two
business days' prior notice to the Company shall be prepared and will be made
available for checking and packaging, not later than 10:30 a.m., Central time,
on the business day next preceding the Closing Date at the offices of ▇▇▇▇▇
▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, or such other location as may be mutually acceptable.
It is understood that each Underwriter may (but shall not be obligated
to) make payment to the Company on behalf of the other Underwriter for the
Securities to be purchased by such Underwriter. Any such payment shall not
relive such other Underwriter of any of its obligations hereunder. Nothing
herein contained shall constitute either of the Underwriters an unincorporated
association or partner with either or both Offerors.
-9-
4. COVENANTS.
(a) The Offerors jointly and severally covenant and agree with the
Underwriters as follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, the Company will use its best efforts to cause
the Registration Statement and any post-effective amendments thereto to
become effective as promptly as possible; the Company will notify you
promptly of the time when the Registration Statement or any post-effective
amendment to the Registration Statement has become effective or any
supplement to the Prospectus (including any term sheet within the meaning
of Rule 434 of the Rules and Regulations) has been filed and of any request
by the Commission for any amendment or supplement to the Registration
Statement or Prospectus or additional information; if the Company has
elected to rely on Rule 430A of the Rules and Regulations, the Company will
prepare and file a Prospectus (or term sheet within the meaning of Rule 434
of the Rules and Regulations) containing the information omitted therefrom
pursuant to Rule 430A of the Rules and Regulations with the Commission
within the time period required by, and otherwise in accordance with the
provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules and
Regulations; if the Company has elected to rely upon Rule 462(b) of the
Rules and Regulations to increase the size of the offering registered under
the Act, the Company will prepare and file a registration statement with
respect to such increase with the Commission within the time period
required by, and otherwise in accordance with the provisions of,
Rule 462(b); the Offerors will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) that, in your opinion,
may be necessary or advisable in connection with your distribution of the
Capital Securities; and the Offerors will not file any amendment or
supplement to the Registration Statement or Prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) to which
you shall reasonably object by notice to the Company after having been
furnished a copy a reasonable time prior to the filing.
(ii) The Offerors will advise the Underwriters, promptly after
they shall receive notice or obtain knowledge thereof, of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Capital Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose; and the
Offerors will promptly use their best efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such a stop order should be
issued.
(iii) Within the time during which a prospectus (including
any term sheet within the meaning of Rule 434 of the Rules and Regulations)
relating to the Capital Securities is required to be delivered under the
Act, the Offerors will comply as far as it is able with all requirements
imposed upon it by the Act, as now and hereafter amended, and by the Rules
and Regulations, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Capital Securities as
contemplated by the provisions hereof and the Prospectus. If during such
period any event occurs as a result of which the Prospectus would include
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to
amend the Registration Statement or supplement the Prospectus to comply
with the Act, the Offerors will promptly notify the Underwriters and will
amend the Registration Statement or supplement the Prospectus (at the
expense of the Company) so as to correct such statement or omission or
effect such compliance.
-10-
(iv) The Offerors will use their best efforts to qualify the
Capital Securities and the Junior Subordinated Debentures for sale under
the securities laws of such jurisdictions as the Underwriters may
reasonably designate and to continue such qualifications in effect so long
as required for the distribution of the Capital Securities, except that the
Offerors shall not be required in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process
in any state.
(v) The Offerors will furnish to the Underwriters copies of the
Registration Statement (three of which will be signed and will include all
exhibits), each of the Preliminary Prospectuses, the Prospectus, and all
amendments and supplements (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations) to such documents, in each case as
soon as available and in such quantities as each Underwriter may from time
to time reasonably request.
(vi) During a period of five years commencing with the date
hereof, the Company will furnish to the Underwriters copies of all periodic
and special reports furnished to the stockholders of the Company and all
information, documents and reports filed with the Commission.
(vii) The Company will make generally available to its
security holders and holders of the Capital Securities as soon as
practicable, but in any event not later than 15 months after the end of the
Company's current fiscal quarter, an earnings statement (which need not be
audited) covering a 12-month period beginning after the effective date of
the Registration Statement that shall satisfy the provisions of
Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(viii) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming
effective under the provisions of Section 8(a) hereof or is terminated,
will pay or cause to be paid (A) all expenses (including transfer taxes
allocated to the respective transferees) incident to the performance of the
obligations of each Offeror under this agreement, (B) all expenses and fees
(including, without limitation, fees and expenses of each Offeror's
accountants and counsel but, except as otherwise provided below, not
including fees of the Underwriter's counsel) in connection with the
preparation, printing, filing, delivery, and shipping of the Registration
Statement (including the financial statements therein and all amendments,
schedules, and exhibits thereto), the Capital Securities, each Preliminary
Prospectus, the Prospectus, and any amendment thereof or supplement
thereto, and the printing, delivery, and shipping of this Agreement and
other underwriting documents, including Blue Sky Memoranda, (C) all filing
fees and fees and disbursements of the Underwriters' counsel incurred in
connection with the qualification of the Capital Securities for offering
and sale by you or by dealers under the securities or blue sky laws of the
states and other jurisdictions which you shall designate, (D) the fees and
expenses of any transfer agent or registrar, (E) the filing fees incident
to any required review by the National Association of Capital Securities
Dealers, Inc. ("NASD") of the terms of the sale of the Capital Securities,
(F) listing fees, if any, (G) the fees and expenses of the Indenture
Trustee, including the fees and disbursements of counsel for the Indenture
Trustee in connection with the Indenture and Junior Subordinated
Debentures, (H) the fees and expenses of the Property Trustee, including
the fees and disbursements of counsel for the Property Trustee in
connection with the Trust Agreement and the Certificate of Trust, and (I)
all other costs and expenses incident to the performance of the Offerors'
obligations hereunder that are not otherwise specifically provided for
herein. If the sale of the Capital Securities provided for herein is not
consummated by reason of action by either Offeror pursuant to Section 8(a)
hereof which
-11-
prevents this Agreement from becoming effective, or by reason of any
failure, refusal or inability on the part of either Offeror to perform any
agreement on its part to be performed, or because any other condition of
your obligations hereunder required to be fulfilled by either Offeror is
not fulfilled, the Company will reimburse you for all out-of-pocket
disbursements (including fees and disbursements of counsel) incurred by the
Underwriters in connection with their investigation, preparing to market
and marketing the Capital Securities or in contemplation of performing
their obligations hereunder. Neither Offeror shall in any event be liable
to you for loss of anticipated profits from the transactions covered by
this Agreement.
(ix) The Offerors will apply the net proceeds from the sale of
the Capital Securities to be sold by the Trust hereunder for the purposes
set forth in the Prospectus and will file such reports with the Commission
with respect to the sale of the Capital Securities and the application of
the proceeds therefrom as may be required in accordance with Rule 463 of
the Rules and Regulations.
(x) The Offerors have not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted, the stabilization or
manipulation of the price of any security of either Offeror to facilitate
the sale or resale of the Capital Securities, and has not effected any
sales of Common Stock which are required to be disclosed in response to
Item 701 of Regulation S-K under the Act which have not been so disclosed
in the Registration Statement.
(xi) Neither Offeror will incur any liability for any finder's or
broker's fee or agent's commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xii) The Offerors will inform the Florida Department of
Banking and Finance at any time prior to the consummation of the
distribution of the Capital Securities by you if it commences engaging in
business with the government of Cuba or with any person or affiliate
located in Cuba. Such information will be provided within 90 days after
the commencement thereof or after a change occurs with respect to
previously reported information.
5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy, as of the date hereof and at
the Closing Date (as if made at the Closing Date), of and compliance with all
representations, warranties and agreements of the Offerors contained herein, to
the performance by each Offeror of its obligations hereunder and to the
following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Central time, on the date of this Agreement, or such later time
and date as you shall approve and all filings required by Rules 424, 430A and
434 of the Rules and Regulations shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereof shall have been issued and no proceedings for the issuance of such an
order shall have been initiated or threatened; and any request of the Commission
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) The Underwriters shall not have advised the Company or the Trust
that the Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations), contains an untrue statement of
-12-
fact which, in your opinion, is material, or omits to state a fact which, in
your opinion, is material and is required to be stated therein or necessary to
make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, neither the Trust, the Company nor any of its subsidiaries
shall have incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions, or declared or paid any
dividends or made any distribution of any kind with respect to its capital
stock; and there shall not have been any change in the capital stock (other than
a change in the number of outstanding shares of Common Stock due to the issuance
of shares upon the exercise of outstanding options or warrants), or any material
change in the short-term or long-term debt of the Company, or any issuance of
options, warrants, convertible securities or other rights to purchase the
capital stock of the Company or any of its subsidiaries, or any material adverse
change or any development involving a prospective material adverse change
(whether or not arising in the ordinary course of business), in the general
affairs, condition (financial or otherwise), business, key personnel, property,
prospects, net worth or results of operations of the Trust or the Company and
its subsidiaries, taken as a whole, that, in your judgment, makes it impractical
or inadvisable to offer or deliver the Capital Securities on the terms and in
the manner contemplated in the Prospectus.
(d) On the Closing Date, there shall have been furnished to the
Underwriters the opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Company, dated
the Closing Date and addressed to the Underwriters, to the effect that:
(i) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Minnesota and is duly registered as a bank holding
company under the BHC Act. The deposit accounts of each of the Company's
subsidiaries that is a bank are insured by the FDIC to the fullest extent
permitted by law, and, to the knowledge of such counsel, no proceedings for
the termination or revocation of such membership or insurance are pending
or threatened. Each of the Company and its subsidiaries has full corporate
power and authority to own its properties and conduct its business as
currently being carried on and as described in the Registration Statement
and Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which it owns
or leases real property or in which the conduct of its business makes such
qualification necessary and in which the failure to so qualify would have a
material adverse effect upon the business, condition (financial or
otherwise) or properties of the Company and its subsidiaries, taken as a
whole.
(ii) The capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus under the
caption "Capitalization," "Description of the Junior Subordinated
Debentures." All of the issued and outstanding shares of the capital stock
of the Company have been duly authorized and validly issued and are fully
paid and nonassessable, and the holders thereof are not subject to personal
liability by reason of being such holders. Except as otherwise stated in
the Registration Statement and Prospectus, there are no preemptive rights
or options, warrants, agreements, contracts or other rights in existence to
purchase or acquire from the Company any shares of the capital stock of the
Company pursuant to the Company's charter, bylaws or any agreement or other
instrument known to such counsel to which the Company is a party or by
which the Company is bound. To the best of such counsel's knowledge,
neither the filing of the Registration Statement nor the offering or sale
of the Junior Subordinated Debentures or
-13-
Capital Securities as contemplated by this Agreement gives rise to any rights
for or relating to the registration of any shares of Common Stock or other
securities of the Company.
(iii) All of the issued and outstanding shares of capital
stock of each of the Company's Subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable, and, to the
best of such counsel's knowledge, except as otherwise described in the
Registration Statement and Prospectus and except for directors' qualifying
shares, the Company owns of record and beneficially, free and clear of any
security interests, claims, liens, proxies, equities or other encumbrances
in the case of the subsidiaries set forth on Exhibit A attached hereto,
that percentage of shares of the issued and outstanding shares of such
subsidiaries' stock as is set forth on such Exhibit A. To the best of such
counsel's knowledge, except as described in the Registration Statement and
Prospectus, there are no options, warrants, agreements, contracts or other
rights in existence to purchase or acquire from the Company or any of its
subsidiaries any shares of the capital stock of any subsidiary of the
Company.
(iv) All of the issued and outstanding Common Securities of the
Trust are owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
(v) The Trust Agreement has been duly qualified under the Trust
Indenture Act.
(vi) The Junior Subordinated Debentures are in the form
contemplated by the Indenture, have been duly authorized, executed and
delivered by the Company and, when authenticated by the Indenture Trustee
in the manner provided for in the Indenture and delivered against payment
therefor, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except to
the extent that enforcement thereof may be limited by bankruptcy.
(vii) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all "Senior Indebtedness" (as defined in the
Indenture) of the Company.
(viii) Neither the Company nor the Trust is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the 1940 Act.
(ix) The Statements set forth in the Prospectus under the caption
"Certain Federal Income Tax Consequences" constitute a fair and accurate
summary of the matters addressed therein, based upon current law and the
assumptions stated or referred to therein.
(x) Under current law, the Trust will be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; accordingly, for United States
federal income tax purposes, each holder of Capital Securities generally
will be considered the owner of an undivided interest in the Junior
Subordinated Debentures, and each holder will be required to include in its
gross income any original issue discount accrued with respect to its
allocable share of the Junior Subordinated Debentures.
(xi) For federal income tax purposes, (a) the Junior Subordinated
Dentures will constitute indebtedness of the Company and (b) the interest
on the Junior Subordinated Debentures will be deductible by the Company on
an economic accrual basis in accordance
-14-
with Section 163(e) of the Internal Revenue Code of 1986, as amended, and
Treasury Regulation Section 1.163-7.
(xii) To the best of such counsel's knowledge and information
after due inquiry, the Trust is not required to be authorized to do
business in any other jurisdiction and the Trust is not a party to or
otherwise bound by any agreement other than those described in the
Prospectus.
(xiii) The Trust Agreement has been duly authorized, executed
and delivered by the Company, the Property Trustee and the Administrative
Trustees.
(xiv) The Trust is not in violation of its Certificate of
Trust or the Trust Agreement or, to the best of such counsel's knowledge
and information after due inquiry, in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or any other instrument of which the Trust is a party or by which it may be
bound, or to which any of the property or assets of the Trust is subject.
(xv) The Registration Statement has become effective under the
Act and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
such counsel, threatened by the Commission.
(xvi) The descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings or rulings,
contracts and other documents are accurate in all material respects and
fairly present the information required to be shown; and such counsel does
not know of any statutes or legal or governmental proceedings required to
be described in the Prospectuses that are not described as required, or of
any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or included as exhibits to the
Registration Statement that are not described or included as required.
(xvii) The reports of the Company incorporated by reference in
the Registration Statement and the Prospectus or any further amendment or
supplement thereto made by the Company (other than the financial
statements, other financial data and related schedules therein, as to which
such counsel need express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(xviii) The Company has full corporate power and authority and
the Trust has full trust power and authority to enter into this Agreement,
the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement to which it is a party and to issue the Junior Subordinated
Debentures and Capital Securities, as the case may be, and to effect the
transactions contemplated by this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Expense Agreement to which it is
a party, and each of this Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement and the Expense Agreement is duly authorized,
executed and delivered by the Company and the Trust, as applicable, and
constitutes a valid, legal and binding obligation of the Company
enforceable in accordance with its terms (except as rights to indemnity
hereunder may be limited by federal or state securities laws and except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
-15-
generally and subject to general principles of equity. The execution,
delivery and performance of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement, the Capital Securities, the Common
Securities, the Junior Subordinated Debentures and the Guarantee and the
consummation of the transactions herein or therein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule or regulation, any agreement
or instrument known to such counsel to which the Company or the Trust is a
party or by which either is bound or to which any of their property is
subject, the Company's charter or bylaws, or the Trust's Certificate or any
order or decree known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or the Trust or any of its
respective properties, except for any breach, violation or default which
would not have a material adverse effect on the Company; and no consent,
approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement, the Expense Agreement, the Capital Securities, the
Junior Subordinated Debentures, or the Guarantee or for the consummation of
the transactions contemplated hereby or thereby, including the issuance or
sale of the Junior Subordinated Debentures by the Company and the Common
Securities and Capital Securities by the Trust, except (a) such as may be
required under the Act or state securities or blue sky laws, each of which
has been obtained and (b) the qualification of the Trust Agreement, the
Guarantee Agreement and the Indenture under the Trust Indenture Act and the
regulations thereunder.
(xix) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is in violation of its respective
charter or bylaws.
(xx) The Registration Statement and the Prospectus, and any
amendment thereof or supplement thereto (including any term sheet within
the meaning of Rule 434 of the Rules and Regulations), comply as to form in
all material respects with the requirements of the Act and the Rules and
Regulations; and on the basis of conferences with officers of the Company,
examination of documents referred to in the Registration Statement and
Prospectus and such other procedures as such counsel deemed appropriate,
nothing has come to the attention of such counsel that causes such counsel
to believe that the Registration Statement or any amendment thereof, at the
time such Registration Statement became effective and as of the Closing
Date (including any Registration Statement filed under Rule 462(b) of the
Rules and Regulations), contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (as of their respective dates and as of the Closing Date), as
amended or supplemented, includes any untrue statement of material fact or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; it
being understood that such counsel need express no opinion as to the
financial statements or other financial data included in any of the
documents mentioned in this clause.
(xxi) Such other matters as you may reasonably request.
In rendering such opinion such counsel may rely (i) as to matters of
law other than Minnesota and federal law, upon the opinion or opinions of local
counsel provided that the extent of such reliance is specified in such opinion
and that such counsel shall state that such opinion or opinions of local counsel
are satisfactory to them and that they believe they and you are justified in
relying thereon and (ii) as to matters of fact, to the extent such counsel deems
reasonable upon certificates of officers of the Company
-16-
and its subsidiaries and of public officials provided that the extent of such
reliance is specified in such opinion.
(e) The favorable opinion, dated as of Closing Date, of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, counsel to Wilmington Trust Company, as Property Trustee under
the Trust Agreement, Indenture Trustee under the Indenture, and Guarantee
Trustee under the Guarantee Agreement, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) Wilmington Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of the
State of Delaware.
(ii) Wilmington Trust Company has the power and authority to
execute, deliver and perform its obligations under the Trust Agreement, the
Indenture and the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the
Guarantee Agreement have been duly authorized, executed and delivered by
Wilmington Trust Company and constitutes a legal, valid and binding
obligation of Wilmington Trust Company, enforceable against Wilmington
Trust Company, in accordance with its terms.
(iv) The execution, delivery and performance by Wilmington Trust
Company of the Trust Agreement, the Indenture and the Guarantee Agreement
do not conflict with or constitute a breach of the charter or by-laws of
Wilmington Trust Company.
(v) No consent, approval or authorization of, or registration
with or notice to, any governmental authority or agency of the State of
Delaware or the United States of America governing the banking or trust
powers of Wilmington Trust Company is required for the execution, delivery
or performance by the Wilmington Trust Company of the Trust Agreement, the
Indenture and the Guarantee Agreement.
(f) The favorable opinion, dated as of Closing Date, of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, as special Delaware counsel for the Offerors, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, and all filings
required as of the date hereof under the Delaware Act with respect to the
creation and valid existence of the Trust as a business trust have been
made.
(ii) Under the Trust Agreement and the Delaware Act, the Trust
has the trust power and authority to own property and to conduct its
business, all as described in the Prospectus.
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company and each of the Property Trustee and the
Administrative Trustees, and is enforceable against the Company and each of
the Property Trustee and the Administrative Trustees, in accordance with
its terms.
-17-
(iv) Under the Trust Agreement and the Delaware Act, the Trust
has the trust power and authority (i) to execute and deliver, and to
perform its obligations under, this Agreement, and (ii) to issue, and to
perform its obligations under, the Capital Securities and the Common
Securities.
(v) Under the Trust Agreement and the Delaware Act, the
execution and delivery by the Trust of this Agreement, and the performance
by the Trust of its obligations under this Agreement, have been duly
authorized by all necessary trust action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached to the
Trust Agreement as Exhibit E is an appropriate form of certificate to
evidence ownership of the Capital Securities. The Capital Securities and
the Common Securities have been duly authorized by the Trust Agreement and
are duly and validly issued and, subject to the qualifications hereinafter
expressed in this paragraph (vi), fully paid and non-assessable undivided
beneficial interests in the assets of the Trust. The respective holders of
the Capital Securities and the Common Securities, as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware. We note that the
respective holders of the Capital Securities and the Common Securities may
be obligated, pursuant to the Trust Agreement, to make certain payments
under the Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act, the
issuance of the Capital Securities and the Common Securities is not subject
to preemptive or similar rights.
(viii) The issuance and sale by the Trust of the Capital
Securities and the Common Securities, the purchase by the Trust of the
Junior Subordinated Debentures, the execution, delivery and performance by
the Trust of this Agreement and the Guarantee Agreement, the consummation
by the Trust of the transactions contemplated by this Agreement and
compliance by the Trust with its obligations under this Agreement do not
violate (a) any of the provisions of the Certificate of Trust or the Trust
Agreement, or (b) any applicable Delaware law or Delaware administrative
regulation.
(g) On the Closing Date, there shall have been furnished such opinion
or opinions from Faegre & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the
Closing Date and addressed to the Underwriters, with respect to the formation of
the Company, the validity of the Capital Securities, the Indenture, the
Guarantee Agreement, this Agreement, the Registration Statement, the Prospectus
and other related matters as the Underwriters reasonably may request, and such
counsel shall have received such papers and information as they request to
enable them to pass upon such matters.
(h) On the Closing Date you shall have received a letter from Ernst &
Young, dated the Closing Date and addressed to the Underwriters, confirming that
they are independent public accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualifications of
accountants under Rule 2-01 of Regulation S-X of the Commission, that the Trust
is and will be treated as a consolidated Subsidiary of the Company pursuant to
generally accepted accounting principals, and stating, as of the date of such
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of such
letter), the conclusions and findings of each said firm with respect to the
financial information and other matters covered by its letter delivered to
-18-
the Underwriters concurrently with the execution of this Agreement, and the
effect of the letter so to be delivered on the Closing Date shall be to confirm
the conclusions and findings set forth in such prior letter.
(i) On the Closing Date, there shall have been furnished to you, a
certificate, dated the Closing Date and addressed to you, signed by the chief
executive officer and by the chief financial officer of the Company, to the
effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, in all material respects, as if made at and
as of the Closing Date, and the Offerors have complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) No stop order or other order suspending the effectiveness of
the Registration Statement or any amendment thereof or the qualification of
the Capital Securities for offering or sale has been issued, and no
proceeding for that purpose has been instituted or, to the best of their
knowledge, is contemplated by the Commission or any state or regulatory
body; and
(iii) The signers of said certificate have carefully examined
the Registration Statement and the Prospectus, and any amendments thereof
or supplements thereto (including any term sheet within the meaning of Rule
434 of the Rules and Regulations), and (A) such documents contain all
statements and information required to be included therein, the
Registration Statement, or any amendment thereof, does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and the Prospectus, as amended or supplemented, does not
include any untrue statement of material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (B) since the
effective date of the Registration Statement, there has occurred no event
required to be set forth in an amended or supplemented prospectus which has
not been so set forth, (C) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Trust, the Company nor any of its Subsidiaries has incurred any
material liabilities or obligations, direct or contingent, or entered into
any material transactions, not in the ordinary course of business, or
declared or paid any dividends or made any distribution of any kind with
respect to its capital stock, and except as disclosed in the Prospectus,
there has not been any change in the capital stock (other than a change in
the number of outstanding shares of Common Stock due to the issuance of
shares upon the exercise of outstanding options or warrants, or any
material change in the short-term or long-term debt, or any issuance of
options, warrants, convertible securities or other rights to purchase the
capital stock, of the Company, or any of its Subsidiaries, or any material
adverse change or any development involving a prospective material adverse
change (whether or not arising in the ordinary course of business), in the
general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of the
Trust or the Company and its Subsidiaries, taken as a whole, and (D) except
as stated in the Registration Statement and the Prospectus, there is not
pending, or, to the knowledge of the Company or the Trust, threatened or
contemplated, any action, suit or proceeding to which the Trust, the
Company or any of its Subsidiaries is a party before or by any court or
governmental agency, authority or body, or any arbitrator, which might
result in any material adverse change in the condition (financial or
otherwise), business, prospects or results of operations of the Company and
its subsidiaries, taken as a whole.
-19-
(j) On the Closing Date, there shall have been furnished to the
Underwriters, a certificate, dated the Closing Date and addressed to the
Underwriters, signed by the Administrative Trustees, to the effect that:
(i) The representations and warranties of the Trust in this
Agreement are true and correct, in all material respects, as if made at and
as of the Closing Date, and the Trust has complied with all the agreements
and satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) No stop order or other order suspending the effectiveness of
the Registration Statement or any amendment thereof or the qualification of
the Capital Securities for offering or sale has been issued, and no
proceeding for that purpose has been instituted or, to the best of their
knowledge, is contemplated by the Commission or any state or regulatory
body; and
(iii) The signers of said certificate have carefully examined
the Registration Statement and the Prospectus, and any amendments thereof
or supplements thereto (including any term sheet within the meaning of Rule
434 of the Rules and Regulations), and (a) such documents contain all
statements and information required to be included therein, the
Registration Statement, or any amendment thereof, does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and the Prospectus, as amended or supplemented, does not
include any untrue statement of material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (B) since the
effective date of the Registration Statement, there has occurred no event
required to be set forth in an amended or supplemented prospectus which has
not been so set forth, (C) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Trust has not incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions, not in the ordinary
course of business, or declared or paid any dividends or made any
distribution of any kind with respect to its capital securities, and except
as disclosed in the Prospectus, there has not been any change in the
capital securities, or any material change in the short-term or long-term
debt, or any issuance of options, warrants, convertible securities or other
rights to purchase the capital securities, of the Trust or any material
adverse change or any development involving a prospective material adverse
change (whether or not arising in the ordinary course of business), in the
general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of the
Trust, and (D) except as stated in the Registration Statement and the
Prospectus, there is not pending, or, to the knowledge of the Trust,
threatened or contemplated, any action, suit or proceeding to which the
Trust is a party before or by any court or governmental agency, authority
or body, or any arbitrator, which might result in any material adverse
change in the condition (financial or otherwise), business, prospects or
results of operations of the Trust.
(k) The Company shall have furnished to you and to your counsel such
additional documents, certificates and evidence as you or they may have
reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to you and your counsel.
-20-
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors agree to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which you may become subject, under the Act or otherwise (including
in settlement of any litigation if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rules 430A and
434(d) of the Rules and Regulations, if applicable, any Preliminary Prospectus,
the Prospectus, or any amendment or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by it in connection with investigating or defending against
such loss, claim, damage, liability or action; provided, however, that the
Offerors shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Offerors by the Underwriters specifically for use
in the preparation thereof.
In addition to its other obligations under this Section 6(a), each of
the Company and the Trust agree that, as an interim measure during the pendency
of any claim, action, investigation, inquiry or other proceeding arising out of
or based upon any statement or omission, or any alleged statement or omission,
described in this Section 6(a), it will reimburse you on a monthly basis for all
reasonable legal fees or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Offerors' obligation to reimburse you
for such expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. To the extent that any
such interim reimbursement payment is so held to have been improper, you shall
promptly return it to the party or parties that made such payment, together with
interest, compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing) announced
from time to time by Norwest Bank Minnesota, N.A. (the "Prime Rate"). Any such
interim reimbursement payments which are not made to you within 30 days of a
request for reimbursement shall bear interest at the Prime Rate from the date of
such request. This indemnity agreement shall be in addition to any liabilities
which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Trust against any losses, claims, damages or liabilities to which the
Company and the Trust may become subject, under the Act or otherwise (including
in settlement of any litigation, if such settlement is effected with your
written consent), insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by you
-21-
for use in the preparation thereof, and will reimburse the Company and the Trust
for any legal or other expenses reasonably incurred by the Company and the Trust
in connection with investigating or defending against any such loss, claim,
damage, liability or action.
(c) The Company agrees to indemnify the Trust against all loss,
liability, claim damage and expense whatsoever, which may become due from the
Trust under subsection (a) or (b).
(d) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that if, in the sole judgment of the Underwriters, it is advisable for the
underwriters as a group to be represented by separate counsel, the Underwriters
shall have the right to employ a single counsel to represent all Underwriters
who may be subject to a liability arising from any claim in respect of which
indemnity may be sought by the Underwriters under this Section 6, in which
event the reasonable fees and expenses of such separate counsel shall be borne
by the indemnifying party or parties and remitted to the Underwriters for
payment to such counsel as such fees and expenses are incurred (in accordance
with the provisions of the second paragraph in subsection (a) above). An
indemnifying party shall not be obligated under any settlement agreement
relating to any action under this Section 6 to which it has not agreed in
writing.
(e) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above,
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company or the Trust on the one hand and the Underwriters on the
other from the offering of the Capital Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the Trust
on the one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Trust on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Trust or the Underwriter's and the parties'
relevant intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Trust and you
agree that it would not be just and equitable if contributions pursuant to this
subsection (e) were to be determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
-22-
considerations referred to in the first sentence of this subsection (e). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) no
Underwriter shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Capital Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters obligations in this Section (e)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company and the Trust may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 6 shall be in addition to any liability that
the respective Underwriter may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company (including any person who,
with his or her consent, is named in the Registration Statement as about to
become a director of the Company), to each officer of the Company who has signed
the Registration Statement and to each person, if any, who controls the Company
or the Trust within the meaning of the Act.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Offerors herein or in
certificates delivered pursuant hereto, and the agreements of the Offerors and
you contained in Section 6 hereof shall remain operative and in full force and
effect regardless of any investigation made by you or on your behalf or any
controlling person thereof, or the Company or any of its officers, directors, or
controlling persons or the Trust or any if its trustees, or controlling persons
and shall survive delivery of, and payment for, the Capital Securities to and by
the Underwriters hereunder.
8. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective at 10:00 a.m., Central
time, on the first full business day following the effective date of the
Registration Statement, or at such earlier time after the effective time of the
Registration Statement as the Underwriters in their discretion shall first
release the Capital Securities for sale to the public; provided, that if the
Registration Statement is effective at the time this Agreement is executed, this
Agreement shall become effective at such time as the Underwriters in their
discretion shall first release the Capital Securities for sale to the public.
For the purpose of this Section, the Capital Securities shall be deemed to have
been released for sale to the public upon release by you of the publication of a
newspaper advertisement relating thereto or upon release by the Underwriters of
telexes offering the Capital Securities for sale to Capital Securities dealers,
whichever shall first occur. By giving notice as hereinafter specified before
the time this Agreement becomes effective, the Underwriters, the Trust or the
Company may prevent this Agreement from becoming effective without liability of
any party to any other party, except that the provisions of Section 4(a)(viii)
and Section 6 hereof shall at all times be effective.
(b) The Underwriters shall have the right to terminate this Agreement
by giving notice as hereinafter specified at any time at or prior to the Closing
Date, if (i) either Offeror shall have failed, refused or been unable, at or
prior to the Closing Date, to perform any agreement on its part to be performed
hereunder, (ii) any other condition of your obligations hereunder is not
fulfilled, (iii) trading in securities on the New York Stock Exchange or the
Nasdaq Stock Market shall have been suspended or
-23-
limited or minimum prices shall have been established on such Exchange or
System, (iv) a banking moratorium shall have been declared by Federal, New York,
North Dakota, South Dakota or Colorado authorities, or (v) there has occurred
any material adverse change in the financial markets in the United States or an
outbreak of major hostilities (or an escalation thereof) in which the United
States is involved, a declaration of war by Congress, any other substantial
national or international calamity or any other event or occurrence of a similar
character shall have occurred since the execution of this Agreement that, in
your judgment, makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Capital Securities. Any such
termination shall be without liability of any party to any other party except
that the provisions of Section 4(a)(viii) and Section 6 hereof shall at all
times be effective.
(c) If the Underwriters elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section, the
Company shall be notified promptly by the Underwriters by telephone or telegram,
confirmed by letter. If the Trust or the Company elects to prevent this
Agreement from becoming effective, the Underwriters shall be notified by the
Trust or the Company by telephone or telegram, confirmed by letter.
9. DEFAULT BY THE COMPANY. If the Trust shall fail at the Closing Date
to sell and deliver the number of Capital Securities which it is obligated to
sell hereunder or the Company fails to deliver the number of Junior Subordinated
Debentures required to be delivered pursuant to the Trust Agreement, then this
Agreement shall terminate without any liability on the part of any
non-defaulting party. No action taken pursuant to this Section shall relieve
the Trust or the Company so defaulting from liability, if any, in respect of
such default.
10. INFORMATION FURNISHED BY UNDERWRITER. The statements set forth in the
last paragraph of the cover page and under the caption "Underwriting" in any
Preliminary Prospectus and in the Prospectus constitute the written information
furnished by the Underwriters or on their behalf referred to in Section 2 and
Section 6 hereof.
11. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to you, shall be mailed,
telegraphed or delivered to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if to the Company, shall be mailed,
telegraphed or delivered to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ if to the Trust, shall be mailed lithographed or
delivered to it at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration. All notices
given by telegram shall be promptly confirmed by letter. Any notice to the Trust
shall also be copied to the Company at the address previously stated, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇. Any party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Capital Securities from
any of the Underwriters.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
-24-
[Signature Page Follows]
-25-
SCHEDULE I
Underwriter Capital Securities
----------- ------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. $
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated $___________
Total $
--------------
--------------
-26-
EXHIBIT A
COMMUNITY FIRST BANKSHARES, INC.
SUBSIDIARIES
Ownership
Subsidiary Bank: Location Percentage
---------------- -------- ----------
Community First National Bank Worthington, MN 99.072%
Community First National Bank Little Falls, MN 98.712%
Community First National Bank Fergus Falls, MN 99.327%
Community First National Bank Fargo, ND 99.431%
Community First National Bank Dickinson, ND 100.000%
Community First State Bank Vermillion, SD 98.923%
Community First State Bank Redfield, SD 99.641%
Community First State Bank Decorah, IA 99.880%
Community First State Bank Alliance, NE 99.537%
Community First State Bank ▇▇▇▇▇▇▇, WI 99.493%
Colorado Community First National Bank Ft. ▇▇▇▇▇▇, CO 100.000%
Colorado Community First State Bank Steamboat, CO 99.471%
Colorado Community First National Bank Trinidad, CO 100.000%
Colorado Community First State Bank - CO Denver, CO 100.000%
Nonbank Subsidiaries:
---------------------
Community First Financial, Inc. Fargo, ND 100.000%
Community First Service Corporation Fargo, ND 100.000%
Community Insurance, Inc. Fargo, ND 100.000%
Community First Properties, Inc. Fargo, ND 100.000%
Recently Acquired Subsidiaries to Merged Dissolved/Merged:
----------------------------------------------------------
Mountain Parks Data Corporation 100.000%
Mountain Parks Financial Consulting Corp. 100.000%
Other Affiliates:
-----------------
Vail Banks Inc. Vail, CO 24.690%
Subsidiaries of Subsidiaries (100% Owned):
------------------------------------------
Community First Insurance Agencies, Inc. Vermillion, SD (Subsidiary of
Community First State
Bank [Vermillion, SD])
CFIN, Inc. Las Vegas, NV (Subsidiary of
Community First State
Bank [▇▇▇▇▇▇▇])
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Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the Company
and you in accordance with its terms.
Very truly yours,
COMMUNITY FIRST BANKSHARES, INC.
By
-----------------------------------------
Its
-------------------------------------
CFB CAPITAL I
By
-----------------------------------------
Its
-------------------------------------
Confirmed as of the date first
above mentioned.
▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By
--------------------------
Managing Director
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
By
---------------------------
Managing Director
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