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EXHIBIT 1.1
$10,000,000 TRUST PREFERRED SECURITIES*
FRONT RANGE CAPITAL TRUST I
______% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION PREFERENCE OF $10 PER TRUST PREFERRED SECURITY)
UNDERWRITING AGREEMENT
November __, 2000
Howe Barnes Investments, Inc.
As Representative of the several Underwriters
named in Schedule A
135 South LaSalle Street
Chicago, Illinois 60603
Ladies and Gentlemen:
Front Range Capital Corporation, a Colorado corporation (the
"Company"), and its subsidiary, Front Range 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 $10,000,000, representing 1,000,000 securities
of the Trust's ____% Cumulative Trust Preferred Securities, with a liquidation
preference of $10.00 per preferred security (the "Firm Preferred Securities").
In addition, the Offerors propose to grant to the Underwriters an option to
purchase up to $2,000,000, representing 200,000 securities, of the Trust's ____%
Cumulative Trust Preferred Securities, with a liquidation preference of $10.00
per preferred security (the "Option Preferred Securities") as provided in
Section 2 hereof. The Firm Preferred Securities and the Option Preferred
Securities are hereinafter collectively referred to as the "Preferred
Securities." The Offerors propose that the Trust issue the Preferred Securities
pursuant to a Trust Agreement, as amended and restated, among Wilmington Trust
Company, as Property Trustee and Delaware Trustee, the administrative trustees
named therein (the "Administrative Trustees") and the Company (the "Trust
Agreement"). The Preferred 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"),
to be dated November __, 2000, 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.
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* The Offerors have granted to the Underwriters an option to purchase up to
$2,000,000, representing 200,000 Trust Preferred Securities.
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The proceeds of the sale of the Preferred Securities will be used to
purchase junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures") issued by the Company pursuant to an Indenture, to be
dated November __, 2000, between the Company and Wilmington Trust Company, as
trustee (the "Indenture").
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form SB-2 (File Nos. 333-40028
and 333-40028-01) and a related preliminary prospectus for the registration of
the Preferred Securities, the Guarantee and the Junior Subordinated Debentures,
under the Securities Act of 1933, as amended (the "Act") and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act") and the rules and
regulations thereunder. The registration statement, as amended, at the time it
was declared effective, including the information (if any) deemed to be part
thereof pursuant to Rule 430A under the Act, is herein referred to as the
"Registration Statement." The form of prospectus first filed by the Offerors
with the Commission pursuant to Rules 424(b) and 430A under the Act is referred
to herein as the "Prospectus." Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective or filed with the
Commission pursuant to Rule 424(a) under the Act is referred to herein as a
"Preliminary Prospectus." The Securities Exchange Act of 1934, as amended, is
referred to herein as the "Exchange Act." Copies of the Registration Statement,
including all exhibits and schedules thereto, any amendments thereto and all
Preliminary Prospectuses have been delivered to you.
The Offerors hereby confirm their agreement with respect to the
purchase of the Preferred Securities by the Underwriters as follows:
1. Representations and Warranties of the Offerors. (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 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 Trust
Indenture 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.
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(iii) The Registration Statement conforms, and the Prospectus
and any amendments or supplements thereto will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act and
the rules and regulations thereunder. Neither the Registration
Statement nor any amendment thereto, and neither the Prospectus nor any
supplement thereto, contains or will contain, as the case may be, 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 the Statement of Eligibility and Qualification ("Form T-1")
under the Trust Indenture Act.
(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 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 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 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
"Fed"). Except as set forth in the Prospectus, and except for 2,037
shares of common stock of Bankers' Bank of the West, and required
equity interests in The Federal Home Loan Bank and The Federal Reserve
Bank the Company does not directly or indirectly own any stock or other
equity interest in any corporation, partnership, joint venture,
unincorporated association or other entity other than Heritage Bank
(the "Bank"). The Bank and any other entities owned by the Company
being collectively referred to herein as the "Subsidiaries." Each
Subsidiary has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own or lease
its properties and conduct its business as described in the Prospectus,
and is duly qualified to transact business in all jurisdictions in
which the conduct of its business or its ownership or leasing or
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
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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 set forth in the
Prospectus. 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.
(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. 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
to be held by the Company (the "Common Securities") or the Preferred
Securities. Neither the filing of the Registration Statement nor the
registration of the Preferred 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, the Guarantee Agreement and the Agreement as to Expenses and
Liabilities (the "Expense 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, 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
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, the Company's or any Subsidiary's charter or bylaws, the
Trust Agreement or the Trust's certificate of trust filed with the
State of Delaware on June 21, 2000, as amended and restated (the
"Certificate of Trust") or any order, rule, regulation or decree of any
court or governmental agency or body having jurisdiction over the
Company, any Subsidiary or the Trust or having jurisdiction over any of
the properties of the Company, any Subsidiary 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,
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the Trust Agreement, the Guarantee Agreement 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 Common Securities and the Preferred
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, as the case may be,
has full power and authority to enter into this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement, as the case may be, and to authorize, issue and sell the
Junior Subordinated Debentures or the Common Securities and the
Preferred 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.
(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 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 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 Preferred 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 to the statements relating thereto
contained in the Prospectus; and holders of Preferred Securities will
be entitled to the same limitation of personal liability under Delaware
law as extended to stockholders of private corporations for profit
organized under Delaware law.
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(xi) 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.
(xii) The Company's obligations under the Guarantee Agreement
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 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, 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 present fairly the information shown therein on the basis
stated in the Registration Statement and have been compiled on a basis
consistent with the financial statements presented therein.
(xvi) There is no action 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, the Company
or such Subsidiary, taken as a whole, except as set forth in the
Registration Statement.
(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
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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, 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, 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 the amount or
number of classified assets of the Bank, any decrease in net interest
margin for any month to a level below 5.50%, 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 material to the Trust, 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, the Company and the Subsidiaries, (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) since December 31, 1999, there has not been any change
in the capital stock of the Company or the Subsidiaries (other than
described in the Prospectus or as otherwise disclosed to you), or any
material increase in the short-term or long-term debt (including
capitalized lease obligations) of the Company and the Subsidiaries,
taken as a whole, and (F) since December 31, 1999, 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 Prospectus.
(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,
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
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(financial or otherwise), results of operations, shareholders' equity
or prospects of the Trust, the Company and the Subsidiaries, taken as a
whole.
(xxi) The Administrative Trustees on behalf of the Trust, the
Company and each of the Subsidiaries holds and is operating in
compliance with all licenses, approvals, certificates and permits from
governmental and regulatory authorities, foreign and domestic, 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 approvals of the Fed 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.
(xxii) Fortner, Bayens, Levkulich and Co., P.C. which has
certified certain of the financial statements filed with the Commission
as part of the Registration Statement, are independent public
accountants 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 Preferred Securities.
(xxiv) The Offerors' registration statement pursuant to Section
12(g) of the Exchange Act with respect to the Preferred Securities, has
been declared effective by the Commission; the Preferred Securities
have been approved for quotation and trading, upon notice of issuance,
on the American Stock Exchange under the symbol "_____________."
(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 Preferred 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 the Bank 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 is threatened. Neither the Company nor any
Subsidiary has received or is subject to any directive or order from
the Fed, the FDIC, the Colorado Division of Banking, or any other
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.
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(xxvii) Neither 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, 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, 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 banking authorities and
agencies.
(xxix) The Trust, the Company and each of the Subsidiaries owns
or licenses all patents, patent applications, trademarks, service
marks, tradenames, trademark registrations, service mark registrations,
copyrights, licenses, inventions, trade secrets and other similar
rights necessary for the conduct of their businesses as described in
the Prospectus. Neither the Trust, the Company nor any of the
Subsidiaries has any knowledge of any infringement of any patents,
patent applications, trademarks, service marks, tradenames, 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 Fed, the FDIC or the Colorado Division of
Banking, as of the date it was filed, contained an untrue statement of
a material fact or omitted to state a material fact required
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to be stated therein or necessary to make the statements therein not
misleading when made or failed to comply with the applicable
requirements of the Fed, the FDIC or the Colorado Division of Banking,
as the case may be.
(xxxiv) The proceeds from the sale of the Preferred Securities
will constitute "Tier 1" capital (as defined in 12 C.F.R. Part 325),
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 SB-2 to register the Preferred Securities, the Guarantee and the
Common Securities under the Act.
(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 Preferred 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 Preferred Security
of $10.00, the number of Firm Preferred 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 Preferred 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 Representative a commission of $0.50 per Preferred
Security sold by the Trust hereunder (unless such sale was directed by the
Company, in which case the commission shall equal $0.35 per Preferred Security).
The Firm Preferred Securities will be delivered by the Trust to the
Representative against payment of the purchase price therefor at the offices of
Rothgerber, Johnson & Lyons LLP, Denver, Colorado, or such other location as may
be mutually acceptable, at 8:00 a.m. Mountain time on November __, 2000, or such
other time and date as the Representative and the Company may agree upon in
writing, such time and date of delivery being herein referred to as the "First
Closing Date." The purchase price shall be payable by wire transfer of
immediately available funds to an account, such account to be designated by the
Trust at least two business days preceding the First Closing Date. The
Underwriters' commission shall be payable by wire transfer of immediately
available funds to an account, such account to be designated by the Underwriters
at least two business days preceding the First Closing Date. Delivery of the
Firm Preferred Securities may be made by credit through full fast transfer to
the accounts at The Depository Trust Company designated by you. Certificates
representing the Firm Preferred 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 First Closing Date at the offices of Howe
Barnes Investments, Inc., 135 South LaSalle Street, Chicago, Illinois 60603, or
such other location as may be mutually acceptable.
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In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of 200,000 Option
Preferred Securities, at the same purchase price per share to be paid for the
Firm Preferred Securities, for use solely in covering any overallotments made by
the Underwriters in the sale and distribution of the Firm Preferred Securities.
The option granted hereunder may be exercised at any time (but not more than
once) within 30 days after the date of the initial public offering upon notice
by you to the Company setting forth the aggregate number of Option Preferred
Securities as to which the Underwriters are exercising the option, the names and
denominations in which the certificates for such shares are to be registered and
the time and place at which such certificates will be delivered. Such time of
delivery (which may not be earlier than the First Closing Date), being herein
referred to as the "Second Closing Date," shall be determined by you, but if at
any time other than the First Closing Date, shall not be earlier than three nor
later than 10 full business days after delivery of such notice of exercise. The
number of Option Preferred Securities to be purchased by each Underwriter shall
be determined by multiplying the number of Option Preferred Securities to be
sold by the Company pursuant to such notice of exercise by a fraction, the
numerator of which is the number of Firm Preferred Securities to be purchased by
such Underwriter as set forth opposite its name in Schedule A and the
denominator of which is the total number of Firm Preferred Securities (subject
to such adjustments to eliminate any fractional share purchases as you in your
absolute discretion may make). Certificates for the Option Preferred Securities
will be made available at the Company's expense for checking and packaging at
10:30 a.m., Chicago Time, on the business day preceding the Second Closing Date.
The manner of payment for and delivery of the Option Preferred Securities shall
be the same as for the Firm Preferred Securities as specified in the preceding
paragraph.
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
Preferred 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 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 Preferred Securities as
soon as the Underwriters deem it advisable to do so. The Preferred Securities
are to be initially offered to the public at the initial public offering price
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) The Company and the Administrative Trustees on behalf of
the Trust will prepare and timely file with the Commission under Rule
424(b) under the Act a Prospectus containing information previously
omitted at the time of effectiveness of the Registration Statement in
reliance on Rule 430A under the Act, and will not file any amendment to
the Registration Statement or supplement to the Prospectus of which the
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Underwriters shall not previously have been advised and furnished with
a copy and as to which the Underwriters shall have reasonably objected
in writing promptly after reasonable notice thereof or which is not in
compliance with the Act or the rules and regulations thereunder.
(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 Preferred
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 you and your counsel in
order to qualify the Preferred 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 Preferred 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 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 signed 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
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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 the holders
of Preferred Securities, 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 you in writing when such statement has been so made
available.
(g) The Company will, for five years from the First Closing
Date, deliver to each Underwriter, as soon as they are available,
copies of its annual report and 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 deliver to each Underwriter 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.
(h) The Offerors will apply the net proceeds from the sale of
the Junior Subordinated Debentures and the Preferred Securities
substantially in accordance with the purposes set forth under "Use of
Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing
and reporting requirements of the Exchange Act and 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, Preliminary Prospectuses 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, the Selected Dealers Agreement, any blue sky memorandum, if
deemed necessary by the Underwriters, after consultation with the Offerors, 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 National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Preferred 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
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<PAGE> 14
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 Preferred Securities under state securities or Blue Sky
laws; the fees and expenses incurred in connection with the designation of the
Preferred Securities on the American Stock Exchange; the costs of preparing
certificates representing Junior Subordinated Debentures or Preferred
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. In
addition, the Offerors will pay all travel and lodging expenses incurred by
management of the Offerors in connection with any informational "road show"
meetings held in connection with the offering and will also pay for the
preparation of all materials used in connection with such meetings. The Offerors
shall not be required to pay for any of the Underwriters' expenses (other than
those related to qualification of the Preferred Securities under state
securities or Blue Sky laws, not to exceed $2,000, and those incident to
securing any required review by the NASD of the terms of the sale of the
Preferred Securities which shall be paid 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 Sections 9(a) or 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, up to $15,000, including fees and
disbursements of counsel reasonably incurred in connection with investigating,
marketing and proposing to market the Preferred 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 Preferred 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 Firm Preferred Securities on the
First Closing Date and the Option Preferred Securities on the Second 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 First Closing
Date or the Second Closing Date, as the case may be, 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; no stop order suspending the
effectiveness of the Registration Statement, as amended from time to
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<PAGE> 15
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 First Closing
Date or the Second Closing Date, as the case may be, the opinion of
Rothgerber, Johnson & Lyons LLP, Denver, Colorado, counsel for the
Offerors, dated the Closing Date, addressed to the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate
power and authority to own or lease its properties and conduct
its business as described in the Prospectus. The holders of
the Company's outstanding securities are not entitled to any
preemptive or other rights to subscribe for the Junior
Subordinated Debentures or the Preferred Securities under the
Company's Articles of Incorporation or Bylaws and, to the
knowledge of such counsel, no such rights exist under any
other agreement or arrangement. The Company has authorized and
outstanding capital stock as described in the Prospectus.
(ii) Each Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own or
lease its properties and conduct its business as described in
the Prospectus. The outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable and is owned, directly or
indirectly, by the Company, free and clear of all liens,
encumbrances and security interests, other than security
interests specifically disclosed in the Prospectus. To the
knowledge of such counsel, no options, warrants or other
rights to purchase, agreements or other obligations to issue
or other rights to convert any obligations into capital stock
or ownership interests in any Subsidiary are outstanding.
(iii) 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, were
offered and sold in compliance with all federal and state
securities laws, and were not issued in violation of or
subject to any preemption rights or of rights to subscribe for
or purchase securities.
(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, the Indenture, the
Guarantee, the Form T-1 Statement of Eligibility of Wilmington
Trust Company to act as trustee under the Indenture, the Form
T-1 Statement of Eligibility of Wilmington Trust Company to
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<PAGE> 16
act as trustee under the Trust Agreement, and the Form T-1
Statement of Eligibility of Wilmington Trust Company to act as
trustee under the Guarantee Agreement have 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, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject
to general principles of equity.
(vii) The Junior Subordinated Debentures are
subordinate and junior in right of payment to all "Senior and
Subordinated Debt" (as defined in the Indenture) of the
Company.
(viii) 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 Preferred 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 Preferred Securities at the time such interest
income is paid or accrued in accordance with such holder's
regular method of tax accounting.
(ix) 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 accordance with Section 163(e) of the
Internal Revenue Code of 1986, as amended, and Treasury
Regulation Section 1.163-7.
(x) 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, except
where the failure to be so authorized 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 and the Trust is not
a party to or otherwise bound by any material agreement other
than those described in the Prospectus.
(xi) The Trust Agreement has been duly executed and
delivered by the Administrative Trustees.
(xii) To the best of such counsel's knowledge and
information after due inquiry, the Offerors are not in default
in the performance or observance of any
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<PAGE> 17
material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or any other instrument of which either
of them is a party or by which either of them may be bound, or
to which any of the property or assets of the Offerors is
subject.
(xiii) 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, as
applicable, and to issue the Junior Subordinated Debentures or
the Common Securities and Preferred 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, as applicable, and each
of this Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement have been duly
authorized, executed and delivered by the Company and the
Trust, as applicable, and constitutes a valid, legal and
binding obligation of the Company and the Trust, as
applicable, 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, the Preferred Securities,
the Common Securities, the Junior Subordinated Debentures 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, rule or regulation (except that
such counsel need express no opinion regarding any Blue Sky or
state securities laws), any lease, contract, indenture,
mortgage, loan agreement or other agreement or instrument
known to such counsel to which the Company, the Trust or any
Subsidiary is a party or by which it is bound or to which any
of its property is subject, the Company's or any Subsidiary's
charter or bylaws, or the Trust's Certificate or any permit,
judgment, order or decree known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company, the Trust or any Subsidiary or any of their
respective properties, except for any breach, violation or
default which would not have a material adverse effect on the
Company or the Trust; and no consent, approval, authorization,
order of, designation, declaration or filing by or with, any
court or any regulatory, administrative 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
Common Securities, the Preferred Securities, or the Junior
Subordinated Debentures, or for the consummation of the
transactions contemplated hereby or thereby (other than as may
be required by federal or state laws governing banks or bank
holding companies, the NASD, or by state securities and blue
sky laws, as to which such counsel need express no opinion),
including the issuance or sale of the Junior Subordinated
Debentures by the Company and the Common Securities and
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Preferred Securities by the Trust, except (a) such as may be
required under the Act, which have been obtained or made, or
under state securities or blue sky laws, (b) such agreements,
instruments or obligations with respect to which valid
consents or waivers have been obtained by the Trust, the
Company or any of the Subsidiaries, and (c) the qualification
of the Trust Agreement, the Guarantee Agreement and the
Indenture under the Trust Indenture Act and the regulations
thereunder, all of which have been effected. The filing of the
Registration Statement and the registration of the Junior
Subordinated Debentures, the Guarantee and the Preferred
Securities under the Act does not give rise to any rights for
or relating to the registration of any shares of capital stock
or other securities of the Company.
(xiv) Each of the Indenture and the Guarantee
constitutes a legal, valid and binding obligation of
Wilmington Trust Company, enforceable against Wilmington Trust
Company, in accordance with its terms.
(xv) The Registration Statement has become effective
under the Act and, to the knowledge of such counsel, no stop
order proceedings with respect thereto have been instituted or
are pending or threatened by the Commission.
(xvi) The Registration Statement, the Prospectus and
each amendment or supplement, thereto comply as to form in all
material respects with the requirements of the Act and the
rules and regulations thereunder (except that such counsel
need express no opinion as to the financial statements and
related financial schedules contained in the financial
statements, Registration Statement, the Prospectus and each
amendment or supplement thereto).
(xvii) The statements (A) in the Prospectus under the
caption "Federal Income Tax Consequences," (B) in the
Prospectus under the caption "Supervision and Regulation" and
(C) in the Registration Statement in Item 24, insofar as such
statements constitute a summary of matters of law, are
accurate summaries and fairly present the information called
for with respect to such matters.
(xviii) Such counsel does not know of any contracts,
agreements, documents or instruments required to be filed as
exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus which are not so
filed or described as required; and insofar as any statements
in the Registration Statement or the Prospectus constitute
summaries of any contract, agreement, document or instrument
to which the Trust, the Company or any Subsidiary is a party,
such statements are accurate summaries and fairly present the
information called for with respect to such matters.
(xix) Such counsel knows of no legal or governmental
proceeding, pending or threatened, before any court or
administrative body or regulatory agency, to which the Trust,
the Company or any of the Subsidiaries is a party or to
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which any of the properties of the Trust, the Company or any
of the Subsidiaries is subject that are required to be
described in the Registration Statement or Prospectus and are
not so described, or statutes or regulations that are required
to be described in the Registration Statement or the
Prospectus that are not so described (other than any banking
laws (as defined below), as to which counsel need express no
opinion).
(xx) Neither the Company nor the Trust is, and
immediately upon completion of the sale of Preferred
Securities contemplated hereby, neither the Company nor the
Trust will be, an "investment company" or a company
"controlled" by an investment company under the Investment
Company Act of 1940, as amended.
(xxi) To the best of such counsel's knowledge, neither
the Company nor any of the Subsidiaries is in violation of its
respective charter or bylaws.
(xxii) The Bank has been duly chartered to conduct the
business of banking in its state of domicile and the Company
has all necessary power and authority to own the Bank. The
Company and the Bank have all necessary consents and approvals
under applicable federal and state laws and regulations
relating to banks and bank holding companies ("banking laws")
to own their respective assets and carry on their respective
businesses as currently conducted.
(xxiii) Such counsel knows of no legal or governmental
proceeding, pending or threatened, before any court or
administrative body or regulatory agency, to which the Company
or any of the Subsidiaries is a party or to which any of the
properties of the Company or any of the Subsidiaries is
subject that are required to be described in the Registration
Statement or Prospectus and are not so described, or statutes
or regulations that are required to be described in the
Registration Statement or the Prospectus that are not so
described.
(xxiv) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body under banking laws
is necessary in connection with the execution and delivery of
this Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement and the
consummation of the transactions herein and therein
contemplated, except such as have been obtained or made,
specifying the same.
(xxv) No Capital Treatment Event (as defined in the
Indenture) has occurred.
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 First Closing Date
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or the Second Closing Date, as the case may be (other than the financial
statements and related schedules therein, as to which such counsel need express
no opinion) 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 First
Closing Date or the Second Closing Date, as the case may be, (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) 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 First Closing Date or the Second Closing Date, as the case may be, either
the Registration Statement or the Prospectus or any further amendment or
supplement thereto made by the Offerors prior to the First Closing Date or the
Second Closing Date, as the case may be, (other than the financial statements
and related schedules therein, as to which such counsel need express no opinion)
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.
In rendering the above opinions, counsel may rely (i) as to matters of
law other than Colorado 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 they believe they and you 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 opinion of Morris, James, Hitchens & Williams, LLP counsel to
Wilmington Trust Company, as Property Trustee under the Trust
Agreement, Indenture Trustee under the Indenture, and Guarantee Trustee
under the Guarantee Agreement, dated the First Closing Date or the
Second Closing Date, as the case may be, addressed to 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 has been duly authorized, executed and
delivered by Wilmington Trust Company and the Trust Agreement
constitutes a legal, valid and binding obligation of
Wilmington Trust Company, enforceable against Wilmington Trust
Company, in accordance with its terms.
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(iv) The execution, delivery and performance by
Wilmington Trust Company of the Trust Agreement, the Indenture
and the Guarantee Agreement do not 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 is required under the laws of the State of Delaware or
the federal laws of the United States of America governing the
banking or trust powers of Wilmington Trust Company is
required for the execution, delivery or performance by
Wilmington Trust Company of the Trust Agreement, the Indenture
and the Guarantee Agreement.
(d) The underwriters shall have received on the First Closing
Date or the Second Closing Date, as the case may be, the opinion of
Morris, James, Hitchens & Williams, LLP, as special counsel for the
Offerors, 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, 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,
and (ii) to issue, and to perform its obligations under, the
Preferred 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 Preferred Securities.
The Preferred 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), the Preferred Securities are
fully paid and non-assessable
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<PAGE> 22
undivided beneficial interests in the assets of the Trust. The
holders of the Preferred 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 holders of
the Preferred 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 Preferred Securities and the Common
Securities is not subject to preemptive or similar rights to
subscribe for additional Preferred Securities.
(viii) The issuance and sale by the Trust of the
Preferred 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, 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 Trust Agreement or (b) any
applicable Delaware law or Delaware administrative
regulations.
(e) The Underwriters shall have received from Chapman and
Cutler, Chicago, Illinois, counsel for the Underwriters, an opinion
dated the First Closing Date or the Second Closing Date, as the case
may be, with respect to the formation of the Trust, the validity of the
Preferred Securities, the Indenture, the Trust Agreement, the Guarantee
Agreement, the Expense 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.
(f) The Underwriters shall have received on each of the date
hereof, the First Closing Date and any Second Closing Date a signed
letter, dated as of the date hereof, the First Closing Date or any
Second Closing Date, respectively, in form and substance satisfactory
to the Underwriters, from Fortner, Bayens, Levkulich and Co., P.C. 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 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.
(g) Subsequent to the execution and delivery of this
Agreement and prior to the First Closing Date or the Second Closing
Date, as the case may be, 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 your
reasonable judgment, is material and adverse to
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<PAGE> 23
the Offerors and makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Preferred Securities being
delivered at the First Closing Date or the Second Closing Date, as the
case may be, on the terms and in the manner contemplated in the
Prospectus.
(h) The Underwriters shall have received on the First Closing
Date and the Second Closing Date, as the case may be, a certificate or
certificates of the chief executive officer and the principal financial
officer of the Company, to the effect that, as of such Closing Date
each of them severally represents as follows:
(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 First Closing Date and the Second
Closing Date, as the case may be, and the Company has
performed all of its obligations under this Agreement to be
performed at or prior to the First Closing Date and the Second
Closing Date, as the case may be.
(i) The Underwriters shall have received on the First Closing
Date and the Second Closing Date, as the case may be, a certificate or
certificates of the Administrative Trustees, to the effect that, as of
such Closing Date each of them severally represents as follows:
(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 First Closing Date and the Second Closing
Date, as the case may be, and the Trust has performed all of
its obligations under this Agreement to be performed at or
prior to the First Closing Date and the Second Closing Date,
as the case may be.
(j) The Offerors shall have furnished to the Underwriters
such further certificates and documents as the Underwriters may
reasonably have requested.
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<PAGE> 24
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 Chapman and
Cutler, counsel for the Underwriters.
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 First 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).
Section 7. Indemnification. (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 became 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, (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 Preferred 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; (2)
with respect to any Preliminary Prospectus from which any action or claim,
arising from the sale of the Preferred Securities by the Underwriters, brought
by any person who purchased the Preferred Securities from the Underwriters if
(A) a copy of the Prospectus (as amended and supplemented, if such amendment or
supplement shall have been furnished to the Underwriters prior to the written
confirmation of the sale involved) shall not have been given or sent to such
persons by or on behalf of the Underwriters with or prior to the written
confirmation of the sale involved and (B) the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (as amended or supplemented, if applicable); and (3) 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, recklessness or willful misconduct.
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<PAGE> 25
(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 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
-25-
<PAGE> 26
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 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 Preferred 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
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<PAGE> 27
excess of the underwriting discounts and commissions applicable to the Preferred
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 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.
Section 8. Notices. All communications hereunder shall be in writing
and, except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriters, to them c/o Howe
Barnes Investments, Inc., 135 South LaSalle Street, Suite 1500, Chicago,
Illinois 60603, Attention: Daniel E. Coughlin, Senior Vice President and
Director of Corporate Finance; if to the Company, to Front Range Capital
Corporation, 1020 Century Drive, Suite 202, Louisville, Colorado 80027,
Attention: Robert L. Beauprez; and if to the Trust, to it at c/o Front Range
Capital Corporation, 1020 Century Drive, Suite 202, Louisville, Colorado 80027,
Attention: Robert L. Beauprez. 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. Any party may change its address for notice
purposes by written notice to the other parties.
Section 9. Termination. This Agreement may be terminated by you by
notice to the Offerors as follows:
(a) At any time prior to the time this Agreement shall become
effective as to all its provisions, and any such termination shall be
without liability on the part of the Offerors to the Underwriters
(except for the expenses to be paid or reimbursed pursuant to Section 5
and except to the extent provided in Section 7 hereof) or of any
Underwriter to the Offerors;
(b) At any time prior to the First 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, 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, 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 your judgment, make
the offering or delivery of the Preferred Securities impracticable or
inadvisable, (iii) suspension of trading in securities on the New York
Stock Exchange or the American Stock Exchange or limitation on prices
(other than limitations on hours or numbers of
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<PAGE> 28
days of trading) for securities on either such Exchange, or a halt or
suspension of trading in securities generally which are quoted on the
American Stock Exchange or (iv) declaration of a banking moratorium by
either federal authorities or New York or Colorado state authorities;
or
(c) As provided in Section 6 of this Agreement.
Section 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 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 is under the
caption "Underwriting" in the Preliminary Prospectus and the Prospectus.
Section 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 Preferred Securities merely because of such purchase.
Section 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 Preferred Securities under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner
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 Illinois.
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<PAGE> 29
If the foregoing letter is in accordance with your 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.
Very truly yours,
FRONT RANGE CAPITAL TRUST I, a Delaware
business trust
By
Alice M. Bier
Administrative Trustee
FRONT RANGE CAPITAL CORPORATION
By
Robert L. Beauprez
Chairman of the Board and President
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date first
above written.
HOWE BARNES INVESTMENTS, INC.
As Representative of the several Underwriters
named in Schedule A
By
---------------------------------------
Daniel E. Coughlin
Senior Vice President
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<PAGE> 30
SCHEDULE A
SCHEDULE OF UNDERWRITERS
<TABLE>
<CAPTION>
NUMBER OF
PREFERRED SECURITIES
UNDERWRITER TO BE PURCHASED
----------- --------------------
<S> <C>
Howe Barnes Investments, Inc.............................................
TOTAL: 1,000,000
=========
</TABLE>
