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EXHIBIT 1.1
2,000,000 Capital Securities
COLORADO BUSINESS BANKSHARES CAPITAL TRUST I
____% Cumulative Capital Securities
(Liquidation Preference of $10 per Capital Security)
UNDERWRITING AGREEMENT
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__________ __, 2000
Dain Rauscher Wessels, a division of
Dain Rauscher Incorporated
Howe Barnes Investments, Inc.
c/o Dain Rauscher Incorporated
Dain Rauscher Plaza
60 South Sixth Street
Minneapolis, Minnesota 55402
Ladies and Gentlemen:
Colorado Business Bankshares, Inc., a Colorado corporation (the "Company"),
and its subsidiary, Colorado Business Bankshares Capital Trust I, a statutory
business trust organized under the Delaware Business Trust Act (the "Delaware
Act") (the "Trust" and, together with the Company, the "Offerors"), propose,
subject to the terms and conditions stated herein, to issue and sell to you (the
"Underwriters"), an aggregate of 2,000,000 of the Trust's ____% Cumulative
Capital Securities, with a liquidation preference of $10.00 per capital security
(the "Capital Securities"). The Offerors propose that the Trust issue the
Capital Securities pursuant to an amended and restated trust agreement, by First
Union Trust Company, National Association, a national banking association
("First Union"), as Property Trustee and Delaware Trustee, the administrative
trustees named therein (the "Administrative Trustees") and the Company and by
the holders from time to time of undivided beneficial interests in the Trust
(the "Trust Agreement"). The Capital Securities will be guaranteed by the
Company (the "Guarantee") as set forth in a Capital Securities Guarantee
Agreement (the "Guarantee Agreement"), to be dated _______ __, 2000, between the
Company and First Union, as trustee (the "Guarantee Trustee").
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 that certain Indenture, to be
dated _______ __, 2000, between the Company and First Union, as trustee (the
"Indenture").
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The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File Nos. 333-37674 and 333-
37674-01) for the registration of the Capital Securities, the Guarantee and the
Junior Subordinated Debentures under the Securities Act of 1933, as amended (the
"Act") and the rules and regulations thereunder and the qualification of the
Indenture, the Trust Agreement and the Guarantee under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and the rules and regulations
thereunder. If the Offerors have elected to rely upon Rule 430A under the Act,
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) under the Act 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)
under the Act, 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 under the Act provided by the Offerors for use with a prospectus
subject to completion within the meaning of Rule 434 under the Act in order to
meet the requirements of Section 10(a) of the Act) filed by the Offerors with
the Commission pursuant to Rule 424(b) under the Act (and Rule 434 under the
Act, if applicable) or any other such prospectus provided to the Underwriters by
the Offerors for use in connection with the offering of the Capital Securities
(whether or not required to be filed by the Offerors with the Commission
pursuant to Rule 424(b) under the Act) 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 under the Act) from and
after the time such prospectus is filed with the Commission or transmitted to
the Commission for filing pursuant to such Rule 424(b) (and Rule 434, if
applicable) or from and after the time it is first provided to the Underwriters
by the Offerors 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 under the Act. References to the
Registration Statement, the Prospectus and the Preliminary Prospectus include
all information incorporated therein by reference. Copies of the Registration
Statement, including all exhibits and schedules thereto, any amendments thereto
and all Preliminary Prospectuses have been delivered to the Underwriters.
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The Offerors hereby confirm their agreement with respect to the purchase of
the Capital Securities by the Underwriters as follows:
1. Representations and Warranties of the Offerors.
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(a) The Offerors jointly and severally represent and warrant to, and
agree with, each of the Underwriters that:
(i) The Registration Statement has been declared effective
under the Act, and no post-effective amendment to the Registration Statement has
been filed with the Commission as of the date of this Agreement. 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 Company's
knowledge, threatened by the Commission.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the rules and regulations of the Commission
promulgated thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Offerors make no
representation or warranty as to information contained in or omitted in reliance
upon, and in conformity with, written information furnished to the Offerors by
or on behalf of any Underwriter, expressly for use in the preparation thereof.
(iii) The Registration Statement and the Prospectus conform
in all material respects to the requirements of the Act and the rules and
regulations thereunder and the Trust Indenture Act and the rules and regulations
thereunder. Neither the Registration Statement, as of its effective date and
the date of any amendment thereto, nor the Prospectus contains any untrue
statement of a material fact or omits or will omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that the Offerors make no representation or warranty as to (i)
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Offerors by or on behalf
of any Underwriter, expressly for use in the preparation thereof or (ii)
information in those parts of the Registration Statement which constitute
Statements of Eligibility and Qualification ("Form T-1") under the Trust
Indenture Act. Each Preliminary Prospectus and the Prospectus will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR"), except to the extent permitted by Regulation S-T.
(iv) 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
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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 Trust'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 this Agreement and 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.
(v) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Colorado, 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"), and has properly made an
election with the FRB to be treated as a financial services holding company. The
subsidiaries of the Company are Colorado Business Bank, N.A. ("CBB"), Colorado
Business Leasing, Inc. ("CBL") and CoBiz Connect, Inc. ("CBC") (each a
"Subsidiary" and collectively the "Subsidiaries"). CBB is a national bank having
a valid charter from the federal government of the United States. CBB is a
member in good standing of the Federal Home Loan Bank of Topeka and the Federal
Reserve Bank of Kansas City. CBL and CBC are each Colorado corporations. Each of
CBB, CBL and CBC has been duly incorporated or organized and is validly existing
and, in the case of CBL and CBC, in good standing under the laws of the
jurisdiction of its incorporation. Each of the Company and the Subsidiaries has
the corporate power and authority to own or lease its properties and conduct its
business as described in the Prospectus; is, to the Company's knowledge, in
compliance with all federal and state regulatory rules and guidelines; and is
duly qualified to transact business in all jurisdictions in which the conduct of
its business or its ownership or leasing of property requires such qualification
and the failure so to qualify would have a material adverse effect on the
business or condition, financial or otherwise, of the Company and the
Subsidiaries, taken as a whole. All outstanding shares of capital stock of each
of the Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable, and are owned, directly or indirectly, by the Company free
and clear of all liens, encumbrances and security interests, except as disclosed
in the Registration Statement and Prospectus and except that approximately 20%
of the outstanding shares of capital stock of CBL are not owned, directly or
indirectly, by the Company. No options, warrants or other rights to purchase,
agreements or other obligations to issue, or other rights to convert any
obligations into, shares of capital stock or ownership interests in any of the
Subsidiaries are outstanding, except as provided in the Shareholders Agreement
of Colorado Business Leasing, Inc., dated as of March 29, 1996, among CBB, as
successor to The Women's Bank, N.A., CBL and those individuals who are
signatories to such agreement.
(vi) All of the issued and outstanding shares of capital stock
of the Company are duly authorized, validly issued, fully paid and
nonassessable, were offered and sold in compliance with all federal and state
securities laws, and were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase securities.
Except as otherwise
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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, the Junior Subordinated Debentures, the common
securities of the Trust held by the Company (the "Common Securities") or the
Capital Securities. Neither the filing of the Registration Statement nor the
registration of the Capital Securities, the Guarantee or the Junior Subordinated
Debentures gives rise to any rights for or relating to the registration of any
capital stock or other securities of the Company or the Trust. The Company has
an authorized and outstanding capitalization as set forth in the Registration
Statement and the Prospectus.
(vii) Each of this Agreement, the Indenture, the Trust Agreement
and the Guarantee Agreement has been duly authorized, executed and delivered by
the Company and/or the Trust, as the case may be, and constitutes a valid, legal
and binding obligation of the Company and/or the Trust, as the case may be,
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 and, with respect to Section 7 hereof, by the public policy
underlying the federal or state securities laws. The execution, delivery and
performance of this Agreement, the Indenture, the Trust Agreement and the
Guarantee 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, (x) any statute, any indenture,
mortgage, deed of trust, loan agreement, lease, franchise, license or other
agreement or instrument to which the Trust, the Company or any of the
Subsidiaries is a party or by which the Trust, the Company or any of the
Subsidiaries is bound or to which any property or assets of the Trust, the
Company or any of the Subsidiaries is subject or any order, rule, regulation,
order, agreement or decree of any court or governmental agency or body having
jurisdiction over the Company, any Subsidiary or the Trust or any of the
properties of the Company, any Subsidiary or the Trust or (y) the Company's or
any Subsidiary's charter or bylaws or the Trust Agreement or the Trust's
certificate of trust filed with the State of Delaware on _________, 2000 (the
"Certificate of 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 and the Guarantee 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 Common Securities and
the Capital Securities by the Trust, except such as may be required under the
Act, all of which have been obtained or made, and under 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 and the Guarantee
Agreement, as the case may be, and to authorize, issue and sell the Junior
Subordinated Debentures or the Common Securities and the Capital Securities, as
the case may be, as contemplated by this Agreement; and each of the Indenture,
the Trust Agreement and the Guarantee Agreement has been duly qualified under
the Trust Indenture Act and will conform in all material respects to the
statements relating thereto in the Registration Statement and the Prospectus.
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(viii) 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, will conform in all material respects to the
statements relating thereto in the Prospectus, and will be owned by the Trust
free and clear of any security interest, pledge, lien, encumbrance, claim or
equity.
(ix) 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 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 in
all material respects to all statements relating thereto contained in the
Prospectus; 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, pledge, lien, encumbrance, claim or equity.
(x) The Capital Securities have been duly authorized by the
Trust Agreement and, when issued and delivered pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued
and fully paid and non-assessable undivided beneficial interests in the Trust,
will be entitled to the benefits of the Trust Agreement and will conform in all
material respects to the statements relating thereto contained in the
Prospectus; 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.
(xi) The Indenture, the Trust Agreement and the Guarantee
Agreement are in substantially the respective forms filed as exhibits to the
Registration Statement.
(xii) The Company's obligations under the Guarantee are
subordinated and junior in right of payment to all Senior and Subordinated Debt
(as defined in the Indenture) of the Company.
(xiii) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all Senior and Subordinated Debt of the Company.
(xiv) Each of the Administrative Trustees of the Trust is an
officer of the Company and has been duly authorized by the Company to execute
and deliver the Trust Agreement.
(xv) The financial statements, together with the related notes
and schedules, contained in the Registration Statement and Prospectus present
fairly the consolidated financial
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position, results of operations, shareholders' equity and cash flows of the
Company and its consolidated Subsidiaries on the basis stated therein at the
indicated dates and for the indicated periods. Such financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as expressly stated
therein, and all adjustments necessary for a fair presentation of results for
such periods have been made, except as otherwise stated therein. The selected
financial and statistical data included in the Registration Statement and the
Prospectus present fairly the information shown therein on the basis stated in
the Registration Statement and the Prospectus and have been compiled on a basis
consistent with the financial statements presented therein.
(xvi) There is no action, suit or proceeding pending or, to
the knowledge of the Trust or the Company, threatened or contemplated against
any of the Trust, the Company or any Subsidiary before any court or
administrative or regulatory agency which, if determined adversely to the Trust,
the Company or such Subsidiary would, individually or in the aggregate, result
in a material adverse change in the business or condition (financial or
otherwise), results of operations, shareholders' equity or prospects of the
Trust, or of the Company and it Subsidiaries taken as a whole, except as set
forth in the Registration Statement or the Prospectus.
(xvii) There are no contracts or documents of the Trust or the
Company or any Subsidiary that are required by the Act or by the rules and
regulations thereunder to be filed as exhibits to the Registration Statement
which contracts or documents have not been so filed.
(xviii) The Company and the Subsidiaries have good and
marketable title to all properties and assets reflected as owned in the
financial statements hereinabove described (or as described as owned in the
Prospectus), in each case free and clear of all liens, encumbrances and defects,
except such as are described in the Prospectus or do not substantially affect
the value of such properties and assets and do not materially interfere with the
use made and proposed to be made of such properties and assets by the Company
and the Subsidiaries; and any real property and buildings held under lease by
the Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and the Subsidiaries.
(xix) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or supplemented, (A)
there has not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition, financial or
otherwise, of the Trust, or of the Company and the Subsidiaries taken as a
whole, or the business affairs, management, financial position, shareholders'
equity or results of operations of the Trust, or of the Company and the
Subsidiaries taken as a whole, whether or not occurring in the ordinary course
of business, including, without limitation, any material increase in
delinquencies or the amount or number of classified assets of the Company, any
decrease in net interest margin for any month, or any material decrease in the
volume of loan originations, the amount of deposits or the amount of loans, (B)
there has not been any transaction not in the ordinary course of business
entered into by the Trust, the Company or any of the Subsidiaries which is
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material to the Trust, or the Company and the Subsidiaries taken as a whole,
other than transactions described or contemplated in the Registration Statement,
(C) the Trust, the Company and the Subsidiaries have not incurred any material
liabilities or obligations, which are not in the ordinary course of business or
which could result in a material reduction in the future earnings of the Trust,
or the Company and the Subsidiaries taken as a whole, (D) the Trust, the Company
and the Subsidiaries have not sustained any material loss or interference with
their respective businesses or properties from fire, flood, windstorm, accident
or other calamity, whether or not covered by insurance, (E) there has not been
any change in the capital stock of the Company or the Subsidiaries (other than
upon the exercise of options and warrants described in the Registration
Statement), or any material increase in the short-term or long-term debt (other
than the Junior Subordinated Debentures) (including capitalized lease
obligations) of the Company and the Subsidiaries taken as a whole, and (F) there
has not been any declaration or payment of any dividends or any distributions of
any kind with respect to the capital stock of the Company or the Subsidiaries
other than any dividends or distributions described or contemplated in the
Registration Statement and the Company's regular quarterly common stock
dividend.
(xx) Neither the Company nor any of the 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; and none of the Trust, the
Company, or the Subsidiaries is in violation of or otherwise in default under
any statute, or any rule, regulation, order, supervisory agreement, judgment,
decree or authorization of any court or governmental or administrative agency or
body having jurisdiction over the Trust, the Company or any of the Subsidiaries
or any of their properties, or any indenture, mortgage, deed of trust, loan
agreement, lease, franchise, license or other agreement or instrument to which
the Trust, the Company or any of the Subsidiaries is a party or by which any of
them are bound or to which any property or assets of the Trust, the Company or
any of the Subsidiaries is subject, which violation or default would have a
material adverse effect on the business, condition (financial or otherwise),
results of operations, shareholders' equity or prospects of the Trust, or of the
Company and the Subsidiaries taken as a whole.
(xxi) The Trust, the Company and each of the Subsidiaries holds
and is operating in compliance in all material respects with all licenses,
approvals, certificates and permits from governmental and regulatory authorities
which are necessary to the conduct of its business as described in the
Prospectus. Without limiting the generality of the foregoing, the Company has
all necessary federal or state approvals to own the stock of the Subsidiaries.
None of the Trust, the Company or any Subsidiary has received notice of or has
knowledge of any basis for any proceeding or action relating specifically to the
Trust, the Company or the Subsidiaries for the revocation or suspension of any
such consent, authorization, approval, order, license, certificate or permit or
any other action or proposed action by any regulatory authority having
jurisdiction over the Trust, the Company or the Subsidiaries that would have a
material adverse effect on the Trust, the Company or any Subsidiary.
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(xxii) Deloitte & Touche LLP, which has certified certain of
the financial statements contained in the Registration Statement, are
independent public accountants with respect to the Company as required by the
Act and the rules and regulations thereunder.
(xxiii) The Offerors have not taken and will not take, directly
or indirectly, any action designed to, or which has constituted, or which might
reasonably be expected to cause or result in, stabilization or manipulation of
the price of the Capital Securities.
(xxiv) The Offerors' registration statement pursuant to
Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), with respect to the Capital Securities has been declared effective by the
Commission; and the Capital Securities have been approved for designation upon
notice of issuance on the American Stock Exchange under the symbol "CXM.pr."
(xxv) 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 other than any Preliminary
Prospectus or the Prospectus or other materials permitted by the Act to be
distributed by the Company.
(xxvi) The deposit accounts of CBB are insured by the Federal
Deposit Insurance Corporation (the "FDIC") to the fullest extent provided by
law. No proceeding for the termination of such insurance is pending or, to the
knowledge of the Company, is threatened. Neither the Company nor any Subsidiary
has received or is subject to any directive, order or supervisory agreement or
arrangement from the FRB, the FDIC, the Office of the Comptroller of the
Currency ("OCC"), or any other state or federal regulatory authority to make any
material change in the method of conducting their respective businesses that has
not been complied with in all material respects.
(xxvii) The Offerors are in material compliance with all
provisions of Florida Statutes Section 517.075 (Chapter 92-198, laws of
Florida). Neither of the Offerors nor any of their affiliates does any business,
directly or indirectly, with the government of Cuba or with any person or entity
located in Cuba.
(xxviii) The Trust, the Company and the Subsidiaries have filed
all federal, state, local and foreign tax returns or reports required to be
filed (including extensions), and have paid in full all taxes indicated by said
returns or reports and all assessments received by it or any of them to the
extent that such taxes have become due and payable (including extensions),
except where the Trust, the Company and the Subsidiaries are contesting in good
faith such taxes and assessments. The Company and the Subsidiaries have also
filed all required applications, reports, returns and other documents and
information with all state and federal savings bank authorities and agencies.
(xxix) The Trust, the Company and each of the Subsidiaries
owns or licenses all patents, patent applications, trademarks, service marks,
trade names, trademark registrations,
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service mark registrations, copyrights, licenses, inventions, trade secrets and
other similar rights necessary for the conduct of their businesses as described
in the Prospectus, except where the failure to so own would not have a material
adverse effect on the Trust, the Company or any Subsidiary, taken as a whole.
Neither the Trust nor the Company has any knowledge of any infringement by them
or the Subsidiaries of any patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses, inventions, trade secrets or other similar rights of
others, and none of the Trust, the Company or any of the Subsidiaries has
received any notice or claim of conflict with the asserted rights of others with
respect to any of the foregoing.
(xxx) None of the Trust, the Company or any of the
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.
(xxxi) The Company and its Subsidiaries maintain, and the
Trust will maintain, a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in accordance
with management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (C) access to records is permitted only in accordance
with management's general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(xxxii) Other than as contemplated by this Agreement and as
disclosed 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 or the consummation of the
transactions contemplated hereby.
(xxxiii) No report or application filed by the Company or any
of its Subsidiaries with the FRB, the FDIC, the OCC or any other state or
federal regulatory authority, as of the date it was filed or amended, 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 failed to comply in all material respects with the
applicable requirements of the FRB, the FDIC, the OCC, or any other state or
federal regulatory authority, as the case may be.
(xxxiv) Based upon current guidelines of the FRB, the Junior
Subordinated Debentures will constitute "tier 1" capital (as defined in 12
C.F.R. Part 225), subject to applicable regulatory restrictions on the amount
thereof that can be included in tier 1 capital.
(xxxv) The Offerors meet all of the requirements for the use
of Form S-1 to register the Capital Securities, the Guarantee and the Junior
Subordinated Debentures under the Act.
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(b) Any certificate signed by or on behalf of the Trust or the
Company and delivered to the Underwriters or counsel to the Underwriters shall
be deemed to be a representation and warranty of the Trust or the Company to
each Underwriter as to the matters covered thereby.
2. Purchase, Sale and Delivery of Capital Securities. 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 to
each Underwriter, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Trust, at a purchase price per Capital Security of
$10.00, the number of Capital Securities set forth opposite the name of such
Underwriter in Schedule A hereto.
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 the
Underwriters a commission of $____ per Capital Security sold by the Trust
hereunder.
The Capital Securities will be delivered by the Company to the Underwriters
against payment of the purchase price therefor at the offices of Silver,
Freedman & Taff, L.L.P., 1100 New York Avenue, N.W., 7/th/ Floor, Washington,
D.C. 20005, or such other location as may be mutually acceptable, at 10:00 a.m.
Eastern time on ________ __, 2000, or such other time and date as the
Underwriters and the Company may agree upon in writing, such time and date of
delivery being herein referred to as the "Closing Date." The purchase price
shall be payable by wire transfer of immediately available funds to an account
designated by the Trust at least two business days preceding the Closing Date.
The Underwriters' commission shall be payable by wire transfer of immediately
available funds to an account designated by the Underwriters at least two
business days preceding 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 ("DTC") designated by the Underwriters. Certificates
representing the Capital Securities, in definitive form and in such
denominations and registered in such names as the Underwriters 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 Dain Rauscher Incorporated, Dain Rauscher Plaza, 60 South Sixth Street,
Minneapolis, Minnesota, or such other location as may be mutually acceptable.
It is understood that any 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
relieve such other Underwriter of any of its obligations hereunder. Nothing
herein contained shall constitute the Underwriters as an unincorporated
association or partner with either or both Offerors.
3. Offering by Underwriters. It is understood that the several
Underwriters propose to make a public offering of the Capital Securities as soon
as the Underwriters deem it advisable to do so. The Capital Securities are to
be initially offered to the public at the initial public offering price
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set forth in the Prospectus. The Underwriters may from time to time thereafter
change the public offering price and other selling terms.
4. Covenants of the Offerors. The Offerors jointly and severally
covenant and agree with the several Underwriters that:
(a) 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 the Underwriters
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 under
the Act) 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 under the Act, the
Company will prepare and file a Prospectus (or term sheet within the meaning of
Rule 434 under the Act) containing the information omitted therefrom pursuant to
Rule 430A under the Act 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; the Offerors will prepare and file with the Commission, promptly
upon the Underwriters' request, any amendments or supplements to the
Registration Statement or Prospectus (including any term sheet within the
meaning of Rule 434 under the Act) that, in their opinion, may be necessary or
advisable in connection with their 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
under the Act) to which the Underwriters shall reasonably object by notice to
the Company after having been furnished a copy a reasonable time prior to the
filing.
(b) The Offerors will advise the Underwriters promptly of any request
of the Commission for amendment of the Registration Statement or for supplement
to the Prospectus or for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus, of the suspension of the qualification
of the Capital Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for that purpose, and the Offerors
will use their best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus or suspending such
qualification and to obtain as soon as possible the lifting thereof, if issued.
(c) The Offerors will cooperate with the Underwriters and the
Underwriters' counsel in order to qualify the Capital Securities for sale under
the securities laws of such jurisdictions as the Underwriters may reasonably
have designated in writing and to continue such qualifications in effect for so
long as the Underwriters may reasonably request for distribution of the Capital
Securities (or obtain exemptions from the application of such laws), provided
that neither Offeror shall be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction where it is not
now so qualified or required to file such a consent. The
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Offerors will, from time to time, prepare and file such statements, reports and
other documents as may be requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies of
any Preliminary Prospectus as the Underwriters may reasonably request and,
during the period when delivery of a prospectus is required under the Act, the
Offerors will furnish the Underwriters with as many copies of the Prospectus in
final form, or as thereafter amended or supplemented, as the Underwriters may,
from time to time, reasonably request. The Offerors will deliver to the
Underwriters, at or before the Closing Date, two conformed copies of the
Registration Statement and all amendments thereto including all exhibits filed
therewith, and will deliver to the Underwriters such number of conformed copies
of the Registration Statement, without exhibits, and of all amendments thereto,
as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law to
be delivered by an Underwriter or dealer, any event shall occur as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, not misleading, or if for
any other reason it shall be necessary at any time to amend or supplement the
Prospectus to comply with any law, the Offerors promptly will prepare and file
with the Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein in
light of the circumstances when it is so delivered, not misleading, or so that
the Prospectus will comply with law.
(f) The Offerors will make generally available to their security
holders, as soon as it is practicable to do so, but in any event not later than
18 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 thereunder and will advise the
Underwriters in writing when such statement has been so made available.
(g) The Company will, for five years from the Closing Date, deliver
to each Underwriter and will cause to be delivered to each beneficial owner of
the Capital Securities, copies of the Company's annual report to stockholders at
approximately the same time such report is transmitted to the Company's
stockholders. The Company will also, for five years from the Closing date, make
available to each of the Underwriters at their request copies of all other
documents, reports and information furnished by the Company to its security
holders or filed with any securities exchange pursuant to the requirements of
such exchange or with the Commission pursuant to the Act or the Exchange Act.
The Company will likewise make available to each of the Underwriters at their
request similar reports with respect to significant subsidiaries, as that term
is defined in the rules and regulations under the Act, which are not
consolidated in the Company's financial statements and will
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promptly notify the Underwriters of the existence of any significant subsidiary
which is not consolidated in the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the
Junior Subordinated Debentures and the Capital Securities substantially in
accordance with the purposes set forth under "Use of Proceeds" in the
Prospectus.
(i) The Offerors will use their best efforts to maintain the listing
of the Capital Securities on the American Stock Exchange.
5. Costs and Expenses.
------------------
(a) The Offerors will pay (directly or by reimbursement) all costs,
expenses and fees incident to the performance of the obligations of the Offerors
under this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Offerors; the fees and
disbursements of counsel for the Offerors; the cost of preparing, printing and
filing of the Registration Statement, the Preliminary Prospectus(es) and the
Prospectus and any amendments and supplements thereto and the printing, mailing
and delivery to the Underwriters and dealers of copies thereof and of this
Agreement, any selected dealers agreement, any blue sky memorandum and any
supplements or amendments thereto (excluding, except as provided below, fees and
expenses of counsel to the Underwriters); the filing fees of the Commission; the
filing fees and expenses (including legal fees and disbursements of counsel for
the Underwriters) incident to securing any required review by the NASD of the
terms of the sale of the Capital Securities; 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; the fees and expenses of the Property Trustee and the Delaware
Trustee, including the fees and disbursements of counsel for the Property
Trustee and the Delaware Trustee in connection with the Trust Agreement and the
Certificate of Trust; the fees and expenses of the Guarantee Trustee, including
the fees and disbursements of counsel for the Guarantee Trustee in connection
with the Guarantee and Guarantee Agreement; listing fees, if any, transfer taxes
and the expenses, including the fees and disbursements of counsel for the
Underwriters, incurred in connection with the qualification of the Capital
Securities under state securities or Blue Sky laws; the fees and expenses
incurred in connection with the listing of the Capital Securities on the
American Stock Exchange; the costs of preparing certificates representing Junior
Subordinated Debentures or Capital Securities; the costs and fees of any
registrar or transfer agent and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 5. Notwithstanding anything to the contrary in the
foregoing sentence, the Offerors shall not be required to pay more than an
aggregate of $10,000 of fees and expenses (x) related to qualification of the
Capital Securities under state securities or Blue Sky laws or (y) incident to
securing any required review by the NASD of the terms of the sale of the Capital
Securities. The Offerors shall not be required to pay for any of the
Underwriters' expenses (other than those related to qualification of the Capital
Securities under state securities or Blue Sky laws and those incident to
securing any required review by the NASD of the terms of the sale of the Capital
Securities which shall be paid
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by the Offerors as provided above) except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Underwriters pursuant to Section
9(b) hereof, or by reason of any failure, refusal or inability on the part of
the Offerors to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on either of their parts to
be performed, unless such failure to satisfy said condition or to comply with
said terms shall be due to the default or omission of any Underwriter, then the
Offerors promptly upon request by the Underwriters shall reimburse the several
Underwriters for all actual, accountable out-of-pocket expenses, including fees
and disbursements of counsel reasonably incurred in connection with
investigating, marketing and proposing to market the Capital Securities or in
contemplation of performing their obligations hereunder; but the Offerors shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Capital
Securities.
(b) Upon successful completion of the offering contemplated by this
Agreement, the Offerors will pay all reasonable and customary costs, expenses
and fees incident to tombstone advertisements of the offering and incurred with
the approval of the Company.
6. Conditions of Obligations of the Underwriters.
---------------------------------------------
The several obligations of the Underwriters to purchase the Capital
Securities on the Closing Date are subject to the condition that all
representations and warranties of the Offerors contained herein are true and
correct, at and as of the Closing Date, and the condition that each Offeror
shall have performed all of its covenants and obligations hereunder and to the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 4(a)
hereof (or any required post-effective amendment to the Registration Statement
shall have been filed and declared effective in accordance with the requirements
of Rule 430A); no stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, or any part thereof shall have been
issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the reasonable
satisfaction of the Underwriters.
(b) The Underwriters shall have received on the Closing Date the
opinions of Arnold & Porter, counsel for the Offerors, dated the Closing Date,
addressed to the Underwriters, in the form attached hereto as Exhibit 1.
Such counsel shall also state that on the basis of such counsel's review
and participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, such counsel has no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Offerors prior to the Closing Date (other than the
financial
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statements, other financial and statistical data and related schedules therein,
as to which such counsel need express no statement), 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 or
that, as of its date, the Prospectus or any further amendment or supplement
thereto made by the Offerors prior to the Closing Date (other than the financial
statements, other financial and statistical data and related schedules therein,
as to which such counsel need express no statement) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading or that, as of the Closing Date, either the Registration
Statement or the Prospectus or any further amendment or supplement thereto made
by the Offerors prior to the Closing Date (other than the financial statements,
other financial and statistical data and related schedules therein, as to which
such counsel need express no statement) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
and they do not know of any amendment to the Registration Statement required to
be filed.
In rendering the above opinions, counsel may rely (i) as to matters of law
other than 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 they believe they and the Underwriters are justified in
relying thereon and (ii) as to matters of fact, upon the representations of the
Trust and the Company contained in this Agreement and upon certificates of
trustees or officers of the Trust, the Company and of public officials.
(c) The Underwriters shall have received on the Closing Date the
opinions of Arnold & Porter, dated the Closing Date addressed to the
Underwriters, to the effect that:
(i) The statements set forth in the Prospectus under the
caption "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.
(ii) 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 beneficial owner of Capital Securities will be treated
as owning an undivided beneficial interest in the Junior Subordinated
Debentures, and stated interest on the Junior Subordinated Debentures generally
will be included in income by a holder of Capital Securities at the time such
interest income is paid or accrued in accordance with such holder's regular
method of tax accounting.
(iii) For federal income tax purposes, (a) the Junior
Subordinated Debentures 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
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accordance with Section 163(e) of the Internal Revenue
Code of 1986, as amended, and Treasury Regulation Section 1.163-7.
(d) The Underwriters shall have received on the Closing Date the
opinion of Richards, Layton & Finger, counsel to First Union, as Property
Trustee under the Trust Agreement, Indenture Trustee under the Indenture, and
Guarantee Trustee under the Guarantee Agreement, dated the Closing Date,
addressed to the Underwriters, to the effect that:
(i) First Union is a national banking association, duly
organized and validly existing under the laws of the United States with its
principal place of business in the State of Delaware.
(ii) First Union 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 has been duly authorized, executed and delivered by First
Union and constitutes a legal, valid and binding obligation of First Union,
enforceable against First Union in accordance with its terms.
(iv) The execution, delivery and performance by First Union of
the Trust Agreement, the Indenture and the Guarantee Agreement do not conflict
with or constitute a breach of the articles of association or by-laws of First
Union.
(v) No consent, approval or authorization of, or registration
with or notice to, any governmental authority or agency governing the banking or
trust powers of First Union is required for the execution, delivery or
performance by First Union of the Trust Agreement, the Indenture and the
Guarantee Agreement, other than the filing of the Certificate of Trust with the
Delaware Secretary of State.
(e) The Underwriters shall have received on the Closing Date the
opinion of Richards, Layton & Finger, as special Delaware counsel for the
Offerors, dated the Closing Date, addressed to 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.
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(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company, the Property Trustee and each of the Administrative
Trustees, and is enforceable against the Company, the Property Trustee and each
of the Administrative Trustees in accordance with its terms.
(iv) Under the Trust Agreement and the Delaware Act, the Trust
has the trust power and authority (i) to execute and deliver, and to perform its
obligations under, this Agreement, (ii) to issue, and to perform its obligations
under, the Capital Securities and the Common Securities and (iii) to purchase
and hold the Junior Subordinated Debentures.
(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 D is an appropriate form of certificate to evidence
ownership of the Capital Securities. The Capital 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 and
are entitled to the benefits of the Trust Agreement. The Common Securities have
been duly authorized by the Trust Agreement and are duly and validly issued
undivided beneficial interests in the assets of the Trust and are entitled to
the benefits of the Trust Agreement. The holders of the Capital 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. Such
counsel may note that the respective holders of the Capital 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 Trust 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 Delaware law or Delaware
administrative regulation applicable to the Trust.
(ix) No authorization, approval, consent or order of any
Delaware court or any Delaware governmental authority or Delaware agency is
required to be obtained by the Trust solely in connection with the issuance and
sale by the Trust of the Common Securities or the Capital
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Securities or the performance by the Trust of its obligations under the Trust
Agreement or this Agreement, other than the filing of the Certificate of Trust
with the Delaware Secretary of State.
(x) The Capital Security holders (other than those Capital
Security holders who reside or are domiciled in the State of Delaware) will have
no liability for income taxes imposed by the State of Delaware solely as a
result of their participation in the Trust, and the Trust will not be liable for
any income tax imposed by the State of Delaware or any political subdivisions or
taxing authority thereof.
(f) The Underwriters shall have received from Silver, Freedman &
Taff, L.L.P., counsel for the Underwriters, an opinion dated the Closing Date,
with respect to the formation of the Trust, the validity of the Capital
Securities, the Indenture, the Trust Agreement, the Guarantee Agreement, this
Agreement, the Registration Statement, the Prospectus, and other related matters
as the Underwriters may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters. In rendering the above opinions, counsel may rely (i) as
to matters of law other than federal law, upon the opinion or opinions of local
counsel provided that the extent of such reliance is specified in such opinion
and (ii) as to matters of fact, upon the representations of the Trust and the
Company contained in this Agreement and upon certificates of trustees or
officers of the Trust, the Company and of public officials.
(g) The Underwriters shall have received on each of the date hereof
and the Closing Date signed letters, dated as of the date hereof and the Closing
Date in form and substance reasonably satisfactory to the Underwriters, from
Deloitte & Touche LLP, (i) to the effect that they are independent public
accountants with respect to the Trust, the Company and the Subsidiaries within
the meaning of the Act and the related rules and regulations and (ii) containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(h) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any change, or any
development involving a reasonably foreseeable change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Offerors otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in the Underwriters' reasonable judgment, is
material and adverse to the Offerors and makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Capital Securities
being delivered at the Closing Date on the terms and in the manner contemplated
in the Prospectus.
(i) The Underwriters shall have received on the Closing Date a
certificate or certificates of the chief executive officer and the chief
financial officer of the Company, to the effect that, as of the Closing Date,
each of them severally represents as follows:
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(i) The Prospectus was filed with the Commission pursuant to
Rule 424(b) within the applicable period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 4 of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been
initiated or are, to his knowledge, threatened by the Commission.
(ii) The representations and warranties of the Company set
forth in Section 1 of this Agreement are true and correct at and as of the
Closing Date, and the Company has performed all of its obligations under this
Agreement to be performed at or prior to the Closing Date.
(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
under the Act), 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 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 (other than
any dividends or distributions described or contemplated in the Registration
Statement and the Prospectus and the Company's regular quarterly common stock
dividend), and except as disclosed in the Prospectus, there has not been any
change in the capital stock, or any material change in the short-term or long-
term debt, or any issuance of options, warrants, convertible securities or other
rights to purchase the capital stock of the Company or any Subsidiary, or any
material adverse change or any development involving a prospective material
adverse change (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
Company or any Subsidiary, and (D) except as stated in the Registration
Statement and the Prospectus, there is not pending, or, to the knowledge of the
signer, threatened or contemplated, any action, suit or proceeding to which the
Company or any Subsidiary is a party before or by any court or governmental
agency, authority or body, or any arbitrator, which might result in any material
adverse change in the condition (financial or otherwise), business, prospects or
results of operations of the Company or any Subsidiary.
(j) The Underwriters shall have received on the Closing Date a
certificate or certificates of the Administrative Trustees, to the effect that,
as of the Closing Date, each of them severally represents as follows:
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(i) The Prospectus was filed with the Commission pursuant to
Rule 424(b) within the applicable period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 4 of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been
initiated or are, to his knowledge, threatened by the Commission.
(ii) The representations and warranties of the Trust set forth
in Section 1 of this Agreement are true and correct at and as of the Closing
Date, and the Trust has performed all of its obligations under this Agreement to
be performed at or prior to the Closing Date.
(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
under the Act), 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
signer, 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 Offerors shall have furnished to the Underwriters such
further certificates and documents as the Underwriters may reasonably have
requested.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects reasonably satisfactory to the Underwriters and to Silver, Freedman &
Taff, L.L.P., counsel for the Underwriters.
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If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Underwriters by notifying the Trust of such termination in writing or by
telegram at or prior to the Closing Date. In such event, the Trust and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 7 hereof).
7. Indemnification.
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(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each officer and director thereof, and each person,
if any, who controls any Underwriter within the meaning of the Act, against any
losses, claims, damages or liabilities to which such Underwriter or such persons
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus, including any amendments or supplements thereto
(including any term sheet within the meaning of Rule 434 under the Act), (ii)
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
light of the circumstances under which they were made, or (iii) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Capital Securities or the
offering contemplated hereby, and which is included as part of or referred to in
any losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arising out of or based upon matters covered by clause (i) or (ii)
above, and will reimburse each Underwriter and each such controlling person for
any legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Offerors
shall not be liable (1) in any such case to the extent that any such loss,
claim, damage or liability 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 or the Prospectus, including
any amendments or supplements thereto, in reliance upon and in conformity with
written information furnished to the Offerors by any Underwriter specifically
for use therein or (2) in the case of any matter covered by clause (iii) above
to the extent that it is determined in a final judgment by a court of competent
jurisdiction that such losses, claims, damages or liabilities resulted directly
from any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Offerors and the trustees and directors and officers who have signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Offerors or any such person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the
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Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made, and
will reimburse any legal or other expenses reasonably incurred by the Offerors
or any such person in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that each Underwriter
will be liable in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission has
been 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 Trust or the Company by or
through the Underwriters specifically for use therein. The obligations of the
Underwriters under this Section 7(b) are several in proportion to their
respective underwriting obligations and not joint.
(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).
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity or
contribution may be sought pursuant to this Section 7, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 7(a) or (b) or contribution provided for
in Section 7(e) shall be available with respect to a proceeding to any party who
shall fail to give notice of such proceeding as provided in this Section 7(d) if
the party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the indemnifying
party or parties from any liability which it or they may have to the indemnified
party otherwise than on account of the provisions of Section 7(a) or (b). In
case any such proceeding 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 therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party and shall pay as incurred the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel at its own
expense. Notwithstanding the foregoing, the indemnifying party shall pay
promptly as incurred the reasonable fees and expenses of the counsel retained by
the indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it or other indemnified parties which are different from or
additional to those available to the indemnifying party. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one
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separate firm at any time for all such indemnified parties. Such firm shall be
designated in writing by the Underwriters and shall be reasonably satisfactory
to the Offerors in the case of parties indemnified pursuant to Section 7(a) and
shall be designated in writing by the Offerors and shall be reasonably
satisfactory to the Underwriters in the case of parties indemnified pursuant to
Section 7(b). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or (b) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Offerors on the one hand and
the Underwriters on the other from the offering of the Capital Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Offerors 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 Offerors bears to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth 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 Offerors on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Offerors and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 7(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7(e). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereto) referred to above in
this Section 7(e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7(e), no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts and commissions applicable to the Capital
Securities purchased by such Underwriter; and 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
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Section 7(e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Offerors under this Section 7 shall be in
addition to any liability which the Offerors may otherwise have, and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the Underwriters may otherwise have.
8. Notices. All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered, telegraphed or sent via
facsimile transmission and confirmed as follows: if to the Underwriters, to them
c/o Dain Rauscher Incorporated, 60 South Sixth Street, Minneapolis, Minnesota
55402, Attention: J. David Welch, Managing Director, with a copy to Dave M.
Muchnikoff, P.C., Silver, Freedman & Taff, L.L.P., 1100 New York Avenue, N.W.,
7/th/ Floor, Washington, D.C. 20005; if to the Company, to Colorado Business
Bankshares, Inc., 821 17/th/ Street, Denver, Colorado 80202, Attention: Steven
Bangert, Chief Executive Officer, with a copy to Kevin A. Cudney, Esq., Arnold &
Porter, 1700 Lincoln Street, Denver, Colorado 80203, and if to the Trust, to it
c/o 821 17/th/ Street, Denver, Colorado 80202, Attention: Steven Bangert, with
copies to Kevin A. Cudney, Esq., Arnold & Porter, 1700 Lincoln Street, Denver,
Colorado 80203 and First Union, One Rodney Square, 920 King Street, First Floor,
Wilmington, Delaware 19801, Attention: Corporate Trust Administration. All
notices given by facsimile transmission shall be electronically confirmed and a
copy of such notice shall be sent promptly via U.S. mail. All notices given by
telegram shall be promptly confirmed by letter sent by U.S. mail. Any notice to
the Trust shall also be copied to the Company at the address previously stated,
Attention: Steven Bangert. Any party may change its address for notice purposes
by written notice to the other parties.
9. Termination. This Agreement may be terminated by the Underwriters by
notice to the Offerors as follows:
(a) at any time prior to the earlier of (i) the time the Capital
Securities are released by the Underwriters for sale or (ii) 10:00 A.M., Eastern
time, on the first business day following the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in or
affecting the condition, financial or otherwise, of the Trust, or of the Company
and the Subsidiaries taken as a whole or the business affairs, management,
financial position, shareholders' equity or results of operations of the Trust,
or of the Company and the Subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency after the date hereof or
other national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of the United
States would, in the Underwriters' judgment, make the offering or delivery of
the Capital Securities impracticable or inadvisable, (iii) suspension of trading
in
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securities on the New York Stock Exchange or the American Stock Exchange or
limitation on prices (other than limitations on hours or numbers of days of
trading) for securities on either such Exchange, or a halt or suspension of
trading in securities generally which are quoted on Nasdaq or (iv) declaration
of a banking moratorium by either federal authorities or by state authorities in
Colorado, Delaware or New York; or
(c) as provided in Section 6 of this Agreement.
10. Written Information. For all purposes under this Agreement
(including, without limitation, Section 1, Section 3 and Section 7 hereof), the
Offerors understand and agree with each of the Underwriters that the following
constitutes the only written information furnished to the Offerors by the
Underwriters specifically for use in preparation of the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto: (i) the per share "Public Offering Price" and per share "Underwriting
Fees to be Paid by the Company" set forth on the cover page of the Prospectus,
and (ii) the information set forth under the caption "Underwriting" in the
Preliminary Prospectus and the Prospectus.
11. Successors. This Agreement has been and is made solely for the
benefit of and shall be binding upon the Underwriters, the Trust and the Company
and their respective successors, executors, administrators, heirs and assigns,
and the trustees and controlling persons and the officers and directors of any
such controlling person referred to herein, and no other person will have any
right or obligation hereunder. The term "successors" shall not include any
purchaser of the Capital Securities merely because of such purchase.
12. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Offerors or controlling persons thereof and (c) delivery of and payment for
the Capital Securities under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction
or any provision hereof in any other jurisdiction.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware.
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If the foregoing letter is in accordance with the Underwriters'
understanding of our agreement, please sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement among the
Offerors and the Underwriters in accordance with its terms.
[The remainder of this page intentionally left blank.]
Very truly yours,
COLORADO BUSINESS BANKSHARES
CAPITAL TRUST I, a Delaware business trust
By:_________________________________________
____________________, Administrative Trustee
COLORADO BUSINESS BANKSHARES, INC.
By:_________________________________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
DAIN RAUSCHER WESSELS, A DIVISION OF
DAIN RAUSCHER INCORPORATED
HOWE BARNES INVESTMENTS, INC.
By: Dain Rauscher Incorporated
By:_________________________________________
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SCHEDULE A
Schedule of Underwriters
Number of
Capital Securities Capital Securities
Underwriter to be purchased
__________________________________________ __________________
Dain Rauscher Wessels, a division of Dain
Rauscher Incorporated.....................
Howe Barnes Investments, Inc.............. -------
Total................................... 2,000,000
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