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EXHIBIT 1.1
1,400,000 Trust Preferred Securities
Glacier Capital Trust I
_____% Cumulative Trust Preferred Securities
(Liquidation Preference of $25 per Trust Preferred Security)
Fully and Unconditionally Guaranteed by
Glacier Bancorp, Inc.
UNDERWRITING AGREEMENT
, 2001
D. A. DAVIDSON & CO.
as Representative of the Several Underwriters
c/o D. A. Davidson & Co.
8 Third Street North
Davidson Building
Great Falls, Montana 59401
Ladies and Gentlemen:
Glacier Bancorp, Inc., a Delaware corporation (the "Company"), as
Depositor and as guarantor, and its fiduciary subsidiary, Glacier 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 that the Trust issue and sell to the several underwriters
named in Schedule I hereto (each an "Underwriter" and collectively the
"Underwriters"), for which you are acting as representative (the
"Representative"), an aggregate of 1,400,000 of the Trust's __% Cumulative Trust
Preferred Securities, with a liquidation preference of $25.00 per Trust
Preferred Security (the "Trust Preferred Securities"), the terms of which are
more fully described in the Prospectus (as hereinafter defined). The Offerors
propose that the Trust issue the Trust Preferred Securities pursuant to an
Amended and Restated Trust Agreement among Wilmington Trust Company, as Delaware
Trustee and as Property Trustee, the administrative trustees named therein (the
"Administrative Trustees") and the Company (the "Trust Agreement"). The Trust
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 as of___________, 2001, between the Company and Wilmington Trust
Company, as Guarantee Trustee (the "Guarantee Trustee").
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The proceeds of the sale of the Trust Preferred Securities and the
common securities of the Trust (liquidation amount $25.00 per common security
(the "Common Securities")) will be used to purchase junior subordinated
deferrable interest debentures (the "Junior Subordinated Debentures") issued by
the Company pursuant to a Indenture (the "Indenture"), to be dated as of
_________, 2001, between the Company and Wilmington Trust Company, as Debenture
Trustee (the "Debenture Trustee").
As the Representative, you have advised the Offerors (i) that you are
authorized to enter into this Underwriting Agreement on behalf of the
Underwriters and (ii) that the Underwriters are willing, acting severally and
not jointly, to purchase the number of Trust Preferred Securities, aggregating
1,400,000 in total, set forth opposite their respective names in Schedule I.
The Offerors hereby confirm their agreement with respect to the sale of
the Trust Preferred Securities to the Underwriters as follows:
1. Representations and Warranties of the Company.
(a) The Offerors jointly and severally represent and warrant to, and
agree with, each of the Underwriters as follows:
(i) A registration statement on Form S-3 (File No.333-______) with
respect to the Trust Preferred Securities, the Guarantee and the Junior
Subordinated Debentures, including a preliminary form of prospectus, has been
prepared by the Offerors in conformity with the requirements of the Securities
Act of 1933, as amended (the "Act"), and the rules and regulations ("Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations thereunder and has been filed with the
Commission. If the Offerors have elected to rely upon Rule 430A under the Act,
they will prepare and file a prospectus (or a term sheet meeting the
requirements of Rule 434) pursuant to Rule 424(b) that discloses the information
previously omitted from the prospectus in reliance upon Rule 430A. The term
"Registration Statement" as used in this Agreement means the registration
statement (including all financial schedules and exhibits), as amended at the
time it becomes effective, or, if the registration statement became effective
prior to the execution of this Agreement, as supplemented or amended prior to
the execution of this Agreement. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the offering of
the Trust Preferred Securities may commence, the term registration statement as
used in this Agreement means the Registration Statement as amended by said
post-effective amendment. The term registration statement also includes an
additional registration statement prepared and filed with the Commission in
accordance with Rule 462(b) under the Act. The prospectus included in the
Registration Statement at the time it is or was declared effective by the
Commission is hereinafter called the "Prospectus," except that if any prospectus
(including any term sheet meeting the requirements of Rule 434 under the Act
provided by the Offerors for use in connection with the offering of the Trust
Preferred Securities (whether or not required to be filed by the Offerors with
the Commission pursuant to Rule 424(b) under the Act) differs from the
prospectus on file at the time the Registration Statement is or was declared
effective by the Commission, the term
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"Prospectus" shall refer to such differing prospectus (including any term sheet
within the meaning of Rule 434 under the Act) from and after the time such
prospectus is filed with the Commission or transmitted to the Commission for
filing pursuant to such Rule 424(b) (and Rule 434, if applicable) or from and
after the time it is first provided to the Underwriters by the Offerors for such
use. The term "Preliminary Prospectus" as used herein means the preliminary
prospectus included in any Registration Statement prior to the time it becomes
or became effective under the Act and any Prospectus subject to completion as
described in Rule 430A or 434 under the Act. Reference to the Registration
Statement, the Prospectus and the Preliminary Prospectus include all information
incorporated therein by reference. Copies of the Registration Statement,
including all exhibits and schedules thereto, any amendments thereto and all
Preliminary Prospectuses have been delivered to the Underwriters.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission nor have any proceedings been
instituted or, to each Offeror's knowledge, threatened for that purpose. Each
Preliminary Prospectus, at the time of filing thereof, did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; except that the
foregoing shall not apply to statements in or omissions from the Preliminary
Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by the Representative on behalf of any Underwriter for
use in the preparation thereof.
(iii) As of the time the Registration Statement is or was declared
effective by the Commission, upon the filing or first delivery to the
Underwriters of the Prospectus and at the Closing Date (as hereinafter defined),
(A) the Registration Statement and Prospectus conformed or will conform in all
material respects to the requirements of the Act and the Rules and Regulations
and the Registration Statement and Prospectus conformed or will conform in all
material respects to the requirements of the Trust Indenture Act and the rules
and regulations thereunder, (B) the Registration Statement did not or will not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (C) the Prospectus did not or will not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they are or were made, not misleading; except that the
foregoing shall not apply to (i) statements in or omissions from any such
document in reliance upon, and in conformity with, written information furnished
to the Offerors by the Representative on behalf of any Underwriter specifically
for use in the preparation thereof and (ii) that part of the Registration
Statement which constitutes the Statement of Eligibility and Qualification
("Form T-1") under the Trust Indenture Act. If the Registration Statement has
been declared effective by the Commission, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceeding
for that purpose has been initiated or, to each Offeror's knowledge, threatened
by the Commission.
(iv) The consolidated financial statements of the Company and its
subsidiaries and of WesterFed Financial Corporation ("WesterFed") and its
consolidated subsidiaries, together with the notes thereto, included or
incorporated by reference in the Registration Statement, Preliminary Prospectus
and Prospectus comply in all material respects with the requirements of
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the Act and the Rules and Regulations and fairly present the financial position
of the Company and its consolidated subsidiaries and WesterFed and its
consolidated subsidiaries, respectively, as of the dates indicated and the
results of operations and changes in financial position for the periods therein
specified; and said consolidated financial statements have been prepared in
conformity with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated in the Registration
Statement and Prospectus). In this Agreement, the term "subsidiaries" when used
in connection with the Company shall not be deemed to include the Trust unless
the context clearly requires otherwise. No other financial statements or
schedules are required to be included or incorporated by reference in the
Registration Statement or the Prospectus. The financial information included in
the Preliminary Prospectus and Prospectus under the caption "Summary
Consolidated Financial Data" presents fairly on the basis stated in the
Prospectus and the Registration Statement the information purported to be shown
therein at the dates and for the periods indicated. The assumptions used in
preparing the pro forma financial statements included in each Registration
Statement and the Prospectus under the caption "[Pro Forma Consolidated
Financial Data]" provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those assumptions,
and the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(v) The Company has been duly organized and is validly existing as a
corporation under the laws of the State of Delaware, is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended, and
is qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which the ownership or leasing of properties or the conduct
of its business requires such qualification, except where failure to be so
qualified would not have a material adverse effect upon the business, condition
(financial or otherwise), properties or results of operations of the Company,
its subsidiaries and the Trust, taken as a whole. Each subsidiary of the Company
has been duly incorporated or organized and is in good standing under the laws
of its jurisdiction of incorporation or organization and is qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which the ownership or leasing of properties or the conduct of its business
requires such qualification, except where failure to be so qualified would not
have a material adverse effect upon the business, condition (financial or
otherwise), properties or results of operations of the Company, its subsidiaries
and the Trust, taken as a whole. The Company and its subsidiaries have all
requisite power and authority (corporate and other) to own their respective
properties and conduct their respective businesses as currently being carried on
and as may be described in the Prospectus. Except with respect to Glacier Bank
of Whitefish and Glacier Bank of Eureka, the Company owns all of the outstanding
capital stock of the Company's subsidiaries, free of any liens, claims, charges
or encumbrances. The Company owns approximately 94% and 98% of the outstanding
capital stock of Glacier Bank of Whitefish and Glacier Bank of Eureka,
respectively, free and clear of any liens, claims, charges or encumbrances. The
accounts of each Company subsidiary bank (each a "Bank") are insured by the
Federal Deposit Insurance Corporation (the "FDIC") up to the maximum applicable
amount in accordance with the rules and regulations of the FDIC, and no
proceedings for the termination or revocation of such membership or insurance
are pending, or, to the knowledge of the Company, threatened.
(vi) KPMG LLP, who certified the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus, are
independent public accountants
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with respect to the Company and WesterFed as required by the Act and the Rules
and Regulations. PricewaterhouseCoopers LLC, who certified certain financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus, are independent public accountants with respect to the
Company as required by the Act and the Rules and Regulations.
(vii) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with full trust power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under this Agreement and the Trust Agreement and is authorized to do
business in each jurisdiction in which such qualification is required, except
where the failure to so qualify would not have a material adverse effect on the
business, condition (financial or otherwise), properties or results of
operations of the Company, its subsidiaries and the Trust, 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.
(viii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, and except as otherwise disclosed
therein, (i) there has been no material adverse change in the condition
(financial or otherwise), financial results or business affairs of the Company,
its subsidiaries and the Trust, taken as a whole, whether or not arising in the
ordinary course of business, (ii) there have been no transactions entered into
by the Company, its subsidiaries or the Trust which would materially affect the
Company, the subsidiaries or the Trust, other than in the ordinary course of
business, (iii) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock or on any class of
capital stock of a subsidiary, except regular quarterly cash dividends declared
by the Board of Directors of the Company and paid by the Company in the ordinary
course of business in accordance with the dividend policy established by the
Board of Directors, (iv) neither the Company, the Trust nor any subsidiary has
incurred, other than in the ordinary course of business, any material
liabilities or obligations, direct or contingent, and (v) there has not been (A)
any change in the capital stock of the Company or any subsidiary (except for
options granted (or the exercise thereof) pursuant to or shares of Common Stock
issued pursuant to the employee benefit plans of, or as compensation to the
directors of, the Company), or any issuance of warrants, convertible securities
or other rights to purchase capital stock of the Company or any subsidiary
(except as noted above), or (B) any material increase in the short-term or
long-term debt (including capitalized lease obligations) of the Company or any
subsidiary, except indebtedness and deposit liabilities incurred by the Banks in
the ordinary course of their banking business. Neither the Trust, the Company
nor any of its subsidiaries has any contingent liabilities which are not
disclosed in the Prospectus or in the Registration Statement that are material
to the Company, its subsidiaries and the Trust, taken as a whole.
(ix) Except as set forth in the Registration Statement, the Preliminary
Prospectus and the Prospectus, there is not pending or, to the knowledge of the
Trust or the Company, threatened or contemplated, any action, suit or proceeding
to which the Trust, the Company or any subsidiary of the Company is a party or
to which any of their assets may be subject, before or by
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any court or governmental agency, authority or body, domestic or foreign, or any
arbitrator, the disposition of which could reasonably be expected to result in
any material adverse change in the business, condition (financial or otherwise),
properties or results of operation of the Company, its subsidiaries and the
Trust, taken as a whole, or the disposition of which would materially and
adversely affect the consummation of this Agreement.
(x) There are no contracts or documents of the Trust, the Company or any
subsidiary of the Company that are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations which
contracts or documents have not been so filed as required.
(xi) The execution, delivery and performance by the Company and/or the
Trust, as the case may be, of this Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement and the Expense Agreement and the
consummation of the transactions contemplated hereby and thereby, including the
issuance, sale and delivery of the Trust Preferred Securities by the Trust and
the Junior Subordinated Debentures by the Company, will not (A) result in a
breach or violation of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Trust, the
Company or any of its subsidiaries pursuant to the terms of any indenture,
mortgage, loan agreement, note, lease or other material agreement, instrument,
franchise, license or permit to which the Trust, the Company or any of its
subsidiaries is a party or by which any of such companies or their respective
properties or assets may be bound, or (B) violate any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the Trust, the Company or any
of its subsidiaries or any of their respective properties or assets, which
breaches, violations, defaults or liens in the case of clause (A) and (B) would,
in the aggregate, have a material adverse effect on the Trust, the Company and
its subsidiaries, taken as a whole, and will not violate or conflict with any
provision of the articles of incorporation, charter, bylaws or other governing
documents of the Company or any of its subsidiaries or the Trust's Trust
Agreement or its certificate of trust filed with the State of Delaware on
December __, 2000 (the "Certificate of Trust"). No consent, approval,
authorization, order or decree of any court or governmental or regulatory agency
or body having jurisdiction over the Trust, the Company or any of their
respective properties or assets is required for 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
contemplated hereby and thereby, except (a) such as may be required under the
Act, or which has been obtained, or under state securities or blue sky laws, and
(b) the qualification of the Trust Agreement, the Guarantee Agreement and the
Indenture under the Trust Indenture Act and the rules and regulations
thereunder. Each of the Indenture, the Trust Agreement and the Guarantee
Agreement conform in all material respects to the descriptions thereof contained
in the Prospectus.
(xii) This Agreement has been duly and validly authorized, executed and
delivered by the Company and the Trust and is a valid and binding obligation of
the Company and the Trust, enforceable against the Company and the Trust in
accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws relating to or affecting
the rights of creditors generally and by equitable principles and except as
obligations of the Company and the Trust under the indemnification provisions
hereof may be limited under federal or state securities laws.
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(xiii) Each of the Company and the Trust has all requisite corporate or
trust power and authority to execute, deliver and perform its obligations under
the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement. All necessary corporate and trust proceedings of the Company and the
Trust have been duly taken to authorize the execution, delivery and performance
by each of the Company and the Trust of the Indenture, the Trust Agreement, the
Guarantee Agreement and the Expense Agreement, as the case may be. The
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement have been duly authorized, and when executed and delivered by the
Company and/or the Trust, as the case may be, will be a valid and binding
obligation of the Company and/or the Trust, as the case may be, enforceable
against the Company and/or the Trust, as the case may be, in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws relating to or affecting the rights
of creditors generally and by equitable principles.
(xiv) The authorized capital stock of the Company as of September 30,
2000 is as set forth under the caption "Capitalization" in the Prospectus and
there have not been any subsequent issuances of capital stock of the Company,
except for subsequent issuances, if any, pursuant to any dividend reinvestment
plan, reservations, agreements, conversions, stock dividends, stock splits or
employee, officer or director benefit or compensation plans. All of the
outstanding shares of capital stock of the Company have been duly authorized,
validly issued and are fully paid and nonassessable. Neither the filing of the
Registration Statement nor the offering or sale of the Trust Preferred
Securities or the Junior Subordinated Debentures, as contemplated by this
Agreement, gives rise to any rights, other than those which have been waived or
satisfied, for or relating to the registration of any shares of capital stock or
other securities of the Company. All of the issued and outstanding shares of
capital stock of each subsidiary of the Company have been duly authorized,
validly issued and are fully paid and nonassessable, except to the extent the
shares of capital stock of the Banks are subject to assessment under applicable
state law.
(xv) The Junior Subordinated Debentures have been duly authorized by the
Company and at the Closing Date will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and delivered
against payment therefor as described in the Prospectus, will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity, will
be in the form contemplated by, and entitled to the benefits of, the Indenture
and will conform in all material respects to the description relating thereto in
the Prospectus.
(xvi) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Prospectus, will
be validly issued and fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and will conform in all material respects
to the description relating thereto contained in the Prospectus; the issuance of
the Common Securities is not subject to preemptive or other similar rights; and
at the Closing Date all of the issued and outstanding Common Securities of the
Trust will be directly owned by
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the Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim.
(xvii) The Trust 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 nonassessable undivided beneficial interests in the Trust,
will be entitled to the benefits of the Trust Agreement and will conform in all
material respects to the description relating thereto contained in the
Prospectus; the issuance of the Trust Preferred Securities is not subject to
preemptive or other similar rights; and holders of Trust Preferred Securities
will be entitled to the same limitation of personal liability under Delaware law
as extended to stockholders of private corporations for profit.
(xviii) 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.
(xix) The Company's obligations under the Guarantee are subordinated and
junior in right of payment to all "Additional Senior Obligations," "Senior Debt"
and "Subordinated Debt" (as defined in the Indenture) of the Company.
(xx) The Junior Subordinated Debentures are subordinate and junior in
right of payment to all "Additional Senior Obligations," "Senior Debt" and
"Subordinated Debt" (as defined in the Indenture) of the Company.
(xxi) Each of the Administrative Trustees of the Trust is an employee of
the Company and has been duly authorized by the Company to execute and deliver
the Trust Agreement.
(xxii) Except as disclosed in the Prospectus, neither the Company, the
Trust nor any subsidiary of the Company is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it is subject nor has
it failed to obtain any license, certificate, permit, franchise or other
governmental authorization, registration, acceptance or approval necessary to
the ownership, leasing or operation of its property or to the conduct of its
business as it is currently being carried on and as may be described in the
Preliminary Prospectus or the Prospectus, which violation or failure to obtain
would have a material adverse effect on the business, condition (financial or
otherwise), properties or results of operations of the Company, its subsidiaries
and the Trust, taken as a whole.
(xxiii) Neither the Company nor any subsidiary of the Company is in
violation of its respective certificate of incorporation, charter or bylaws or
other governing documents; the Trust is not in violation of its Trust Agreement
or its Certificate of Trust or other governing documents; none of the Company,
the Trust or any subsidiary of the Company is in violation or default of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, loan agreement, note, lease or other material contract,
license, agreement or instrument to which the Company, .the Trust or any such
subsidiary is a party or by which it is bound, or to which any of the property
or assets of the Company, the Trust or any such
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subsidiary is subject, where any such default, breach or violation would have,
individually or in the aggregate, a material adverse effect on the Company, its
subsidiaries and the Trust, taken as a whole, or on the performance of this
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
Expense Agreement, the Junior Subordinated Debentures or the Trust Preferred
Securities.
(xxiv) The Company and its subsidiaries have good title to all
properties owned by them that are material to the Company and its subsidiaries,
taken as a whole, in each case free and clear of all liens, encumbrances and
defects, except (i) as do not materially interfere with the use of such
properties, (ii) referred to in the Registration Statement, the Preliminary
Prospectus or the Prospectus, or (iii) as could not reasonably be expected,
singly or in the aggregate, to have a material adverse effect on the business,
condition (financial or otherwise), properties or results of operation of the
Company, its subsidiaries and the Trust, taken as a whole. The property held
under lease by the Company and its subsidiaries is held by them under valid,
subsisting and enforceable leases with only such exceptions with respect to any
particular lease as do not interfere in any material respect with the conduct of
the business of the Company and its subsidiaries, taken as a whole; each of the
Company and its subsidiaries owns or licenses all patents, patent applications,
trademarks, service marks, trade names, trademark registrations service mark
registrations, copyrights, licenses, inventions, trade secrets and rights
necessary for the conduct of the business of the Company and its subsidiaries as
currently carried on and as may be described in the Registration Statement and
Prospectus; except as stated in the Registration Statement and Prospectus, to
the Company's knowledge, no name which the Company or any subsidiary uses and no
other aspect of the business of the Company or any subsidiary will involve or
give rise to any infringement of, or license or similar fees for, any patents,
patent applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses, inventions,
trade secrets or other similar rights of others, except for any infringement,
license or fees that would not have a material adverse effect on the business,
condition (financial or otherwise), properties or results of operations of the
Company, its subsidiaries and the Trust, taken as a whole.
(xxv) The Company maintains insurance of the type and in the amounts
generally deemed adequate for its business and generally consistent with
insurance maintained by similar companies in similar businesses.
(xxvi) Each of the Trust and the Company has filed all federal, state,
local and foreign income and franchise tax returns required to be filed or has
requested extensions thereof (except in any case in which the failure so to file
would not, individually or in the aggregate, have a material adverse effect on
the business, condition (financial or otherwise), properties or results or
operations of the Company and its subsidiaries, taken as a whole, and are not in
default in the payment of any taxes which were payable pursuant to said returns
or any assessments with respect thereto, other than any which the Company or any
of its subsidiaries or the Trust is contesting in good faith or as would not,
individually or in the aggregate, have a material adverse effect on the
business, condition (financial or otherwise), properties or results or
operations of the Company and its subsidiaries, taken as a whole.
(xxvii) The Company, the Trust and each of the subsidiaries of the
Company have all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies, material to the
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ownership of their respective properties and conduct of their respective
businesses as now being conducted and as may be described in the Registration
Statement and the Prospectus, and no such consent, approval, authorization,
order, registration, qualification, license or permit contains a materially
burdensome restriction not adequately disclosed in the Registration Statement
and the Prospectus. The conduct of the business of the Company, the Trust and
each of the subsidiaries is in compliance in all material respects with all
applicable federal, state, local and foreign laws and regulations, except where
failure to be so in compliance would not materially adversely affect the
business, condition (financial or otherwise), properties or results of operation
of the Company, the Trust and the subsidiaries, taken as a whole.
(xxviii) The Offerors have not distributed and will not distribute any
prospectus or other offering material in connection with the offering and sale
of the Trust Preferred Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Offerors.
(xxix) None of the Trust, the Company or any subsidiary is and, after
giving effect to the offering and sale of the Trust Preferred Securities, the
Junior Subordinated Debentures and the Guarantee and the application of the
proceeds from the sale of these securities as described in the Prospectus under
the caption "Use of Proceeds," will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(xxx) Neither the Company, the Trust nor any of their respective
officers or directors (as defined in the Rules and Regulations) has taken or
will take, directly or indirectly, prior to the termination of the offering
contemplated by this Agreement, any action designed to stabilize or manipulate
the price of any security of the Company or the Trust, or which has caused or
resulted in, or which might in the future reasonably be expected to cause or
result in, stabilization or manipulation of the price of any security of the
Company or the Trust, to facilitate the sale or resale of any of the Trust
Preferred Securities
(xxxi) Neither of the Offerors nor any of their affiliates is presently
doing business with the government of Cuba or with any person or affiliate
located in Cuba. .
(xxxii) Each of the Company and its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxxiii) Other than as contemplated by this Agreement or described in
the Registration Statement, the Company has not incurred any liability for any
finder's or broker's fee or agent's commission in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
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<PAGE> 11
(xxxiv) No report or application filed (after giving effect to any
amendments thereto) by the Company or any Bank with the FRB, the Montana
Department of Commerce, Division of Banking and Financial Institutions Division,
the Idaho Department of Finance, the FDIC or other regulatory authority having
jurisdiction over it (each such report or application, together with all
exhibits thereto, a "Regulatory Report"), as of the date it was filed (after
giving effect to any amendments thereto), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading when made or failed
to comply in all material aspects with the applicable requirements of the FRB,
the Montana Department of Commerce, Division of Banking and Financial
Institutions Division, the Idaho Department of Finance, the FDIC or such other
regulatory authority (the "Banking Regulators"), as the case may be. The Company
and each Bank have filed each Regulatory Report that they were required to file
with any Banking Regulator which is material to or could reasonably be expected
to be material to the business, operations, financial condition or the Company
and its subsidiaries taken as a whole.
(xxxv) The proceeds from the sale of the Trust Preferred Securities will
constitute "tier 1" capital (as defined in FRB regulations) to the maximum
extent permitted by rules of the FRB.
(xxxvi) Each of the Banks has properly administered, in accordance with
the terms of the governing documents and applicable state and federal law and
regulation and common law, in all respects material and which could reasonably
be expected to be material to the business, operations or financial condition of
the Company and its subsidiaries, taken as a whole, all accounts for which it
acts as a fiduciary, including, but not limited to, accounts for which it serves
as a trustee, agent, custodian, personal representative, guardian, conservator
or investment advisor. Neither any of the Banks nor any director, officer or
employee of any Bank has committed any breach of trust with respect to any such
fiduciary account which is material to or could reasonably be expected to be
material to the business, operations or financial condition of the Company and
its subsidiaries, taken as a whole, and the accountings for each such fiduciary
account are true and correct in all respects material to the business,
operations or financial condition of the Company and its subsidiaries, taken as
a whole, and accurately reflect the assets of such fiduciary account in all
respects material to the business, operations or financial condition of the
Company and its subsidiaries, taken as a whole.
(xxxvii) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(xxxviii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Act, at the time they were filed with
the Commission, complied in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Commission thereunder (the "Exchange Act Regulations")
and, when read together and with the other information in the Prospectus, at the
time the Registration Statement becomes effective at all times subsequent
thereto up to the Closing Date, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein of
necessary in order to make the statements therein not misleading.
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<PAGE> 12
(xxxix) Each of the Company and its subsidiaries is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERlSA) of the Company or its subsidiaries which could have a material adverse
effect on the business, condition (financial or otherwise), properties or
results of operations of the Company, its subsidiaries and the Trust, taken as a
whole; neither the Company nor any subsidiary has incurred or expects to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"), in each case which could have a
material adverse effect on the business, condition (financial or otherwise),
properties or results of operations of the Company, its subsidiaries and the
Trust, taken as a whole; and each "pension plan" for which the Company or any
subsidiary would have any liability that is intended to be qualified under
Section 501(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would cause the loss
of such qualification, except for such loss as would not have a material adverse
effect on the business, condition (financial or otherwise), properties or
results of operations of the Company, its subsidiaries and the Trust, taken as a
whole.
(xxxx) No hazardous substances, hazardous wastes, pollutants or
contaminants have been deposited or disposed of in, on or under the properties
of the Company or any subsidiary (including properties owned, managed or
controlled by a subsidiary in connection with its lending operations) during the
period in which the Company or any subsidiary has owned, occupied, managed,
controlled or operated such properties in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial action
which would not have, or could not be reasonably likely to have, singularly or
in the aggregate with all such violations or remedial actions, a material
adverse effect on the business, condition (financial or otherwise), properties
or results of operations of the Company, its subsidiaries and the Trust, taken
as a whole.
(xxxxi) The Plan and Agreement of Merger (the "Merger Agreement") dated
as of September 20, 2000, as amended, between the Company and WesterFed has been
duly authorized, executed and delivered by the Company and constitutes the valid
and binding agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to of affecting the
enforcement of creditors' rights generally of by general principles of equity
(regardless of whether considered in equity or at law).
(xxxxii) The Company has delivered to the Underwriters and their counsel
true, complete and correct copies of the Merger Agreement, together with all
exhibits and schedules thereto and all instruments, agreements and documents
delivered in connection therewith or in connection with the transactions
contemplated thereby.
(b) Any certificate signed by any officer of the Company or a trustee of
the Trust and delivered to the Representative or to counsel for the Underwriters
shall be deemed a
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<PAGE> 13
representation and warranty by the Company or the Trust, as the case may be, to
each Underwriter as to the matters covered thereby.
2. Purchase, Sale and Delivery of Trust 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 of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, the
respective number of Trust Preferred Securities set forth opposite the name of
each such Underwriter in Schedule I hereto. The purchase price per Trust
Preferred Security shall be $25.00 per share. As compensation to the
Underwriters for their commitments hereunder and in view of the fact that the
proceeds of the sale of the Trust 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, at the Closing, the
Company hereby agrees to pay to the Representative, on behalf of the several
Underwriters, a commission of $_____ per Trust Preferred Security ($_________ in
the aggregate) delivered by the Trust hereunder at the Closing Date.
The Trust Preferred Securities will be delivered by the Company to the
Representative against payment of the purchase price therefor by wire transfer
in immediately available funds payable to the Company at the offices of D.A.
Davidson & Co., 8 Third Street North, Great Falls, Montana 59401, or such other
location as may be mutually acceptable, at 9:00 a.m. Mountain Standard Time on
the third (or if the Trust Preferred Securities are priced, as contemplated by
Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern time, on the
fourth) full business day following the date hereof, or at such other time and
date as the Representative and the Company determine pursuant to Rule 15c6-1(a)
under the Exchange Act, such time and date of delivery being herein referred to
as the "Closing Date." Delivery of the Trust Preferred Securities will be made
by one or more global certificates, as described in the Prospectus, in
accordance with the procedures established by The Depository Trust Company and
acceptable to the Representative.
Nothing herein contained shall constitute any of the Underwriters an
unincorporated association or partner with any other Underwriter or with the
Offerors.
It is understood that you, on your own behalf and not as Representative,
may (but shall not be obligated to) make payment on behalf of any Underwriter or
Underwriters for the Trust Preferred Securities to be purchased by such
Underwriter or Underwriters. No such payment by you shall relieve such
Underwriter or Underwriters from any of its or their other obligations
hereunder.
3. Offering by the Underwriters.
It is understood that the several Underwriters propose to offer the
Trust Preferred Securities for sale to the public as set forth in the
Prospectus.
4. Covenants.
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<PAGE> 14
(a) The Offerors jointly and severally covenant and agree with the
several Underwriters as follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, each Offeror will use its best efforts to cause the
Registration Statement and any post-effective amendments thereto to become
effective as promptly as possible; the Company will notify the Representative
promptly, (i) of the time when the Registration Statement or any post-effective
amendment to the Registration Statement has become effective, (ii) any
supplement to the Prospectus (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations) has been filed, (iii) of the receipt of
any comments from the Commission, and (iv) of any request by the Commission for
any amendment or supplement to the Registration Statement or Prospectus or
additional information; if the Company has elected to rely on Rule 430A of the
Rules and Regulations, the Company will prepare and file a Prospectus (or term
sheet within the meaning of Rule 434 of the Rules and Regulations) containing
the information omitted there from pursuant to Rule 430A of the Rules and
Regulations with the Commission within the time period required by, and
otherwise in accordance with the provisions of, Rules 424(b), 430A and 434, if
applicable, of the Rules and Regulations; if the Company has elected to rely
upon Rule 462(b) of the Rules and Regulations to increase the size of the
offering registered under the Act, the Company will prepare and file a
registration statement with respect to such increase with the Commission within
the time period required by, and otherwise in accordance with the provisions of,
Rule 462(b); the Offerors will prepare and file with the Commission, promptly
upon the Representative's request, any amendments or supplements to the
Registration Statement or Prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) that, in the Representative's
reasonable opinion, may be necessary or advisable in connection with the
distribution of the Trust Preferred Securities; and the Offerors will not file
any amendment or supplement to the Registration Statement or Prospectus
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations) to which the Representative shall reasonably object by notice to
the Company after having been furnished a copy a reasonable time prior to the
filing.
(ii) The Offerors will advise the Representative, promptly after they
shall receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Trust Preferred
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and the Offerors will
promptly use their best efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such a stop order should be issued.
(iii) Within the time during which a prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) relating to
the Trust Preferred Securities is required to be delivered under the Act, the
Offerors will comply as far as they are able with all requirements imposed upon
them by the Act, as now and hereafter amended, and by the Rules and Regulations,
as from time to time in force, so far as necessary to permit the continuance of
sales of or dealings in the Trust Preferred Securities as contemplated by the
provisions hereof and the Prospectus. If during such period any event occurs as
a result of which the Prospectus
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<PAGE> 15
would include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
then existing, not misleading, or if during such period it is necessary, in the
written opinion of counsel to the Underwriters, to amend the Registration
Statement or supplement the Prospectus to comply with the Act, the Offerors will
promptly notify the Representative and will amend the Registration Statement or
supplement the Prospectus (in form and substance reasonably satisfactory to
counsel for the Underwriters and at the expense of the Company) so as to correct
such statement or omission or effect such compliance.
(iv) The Offerors will use their best efforts to qualify the Trust
Preferred Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions of the United States as the Underwriters
may reasonably designate; provided that no such qualification shall be required
in any jurisdiction where, as a result thereof, the Offerors would become
subject to service of general process or to qualification to do business as a
foreign entity. In each jurisdiction in which the Trust Preferred Securities
have been so qualified, the Offerors will file such statements and reports as
may be required to be filed by them by the laws of such jurisdiction to continue
such qualification in effect so long as required for the distribution of such
securities.
(v) The Offerors will furnish to the Underwriters copies of the
Registration Statement as originally filed (including all exhibits filed
therewith), a conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits), each of the Preliminary
Prospectuses, the Prospectus, and all amendments and supplements (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations) to such
documents, in each case as soon as available and in such quantities as the
Representative may from time to time reasonably request.
(vi) For a period of five years commencing with the date hereof, the
Company will furnish to the Representative, as may be requested by the
Representatives, copies of all annual reports, quarterly reports and current
reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by the Commission, and of such
other documents, proxy statements, reports and information as are furnished by
the Company to its stockholders generally.
(vii) The Company will make generally available to its security holders
and holders of the Trust Preferred Securities as soon as practicable, but in any
event not later than 18 months after the "effective date of the Registration
Statement" (as defined in Rule 158(c) of the Rules and Regulations), an earnings
statement (which need not be audited) complying with Section 11(a) of the Act
and the Rules and Regulations (including, at the option of the Company, Rule 158
thereof).
(viii) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay or cause to
be paid all costs and expenses incident to the performance of the obligations of
each Offeror hereunder, including, without limitation, (A) all expenses
(including transfer taxes allocated to the respective transferees) incurred in
connection with the issuance, transfer and delivery of the Trust Preferred
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<PAGE> 16
Securities, (B) all expenses and fees (including, without limitation, fees and
expenses of each Offeror's accountants and counsel but, except as otherwise
provided below, not including fees and expenses of the Underwriters' counsel) in
connection with the preparation, printing, filing, delivery , and shipping of
the Registration Statement, each Preliminary Prospectus, the Prospectus, and the
printing, delivery, and shipping of this Agreement and other underwriting
documents, including Blue Sky Memoranda and any legal investment survey
requested by the Representative, and the Indenture, (C) all filing fees and fees
and disbursements of the Underwriters' counsel incurred in connection with the
qualification of the Trust Preferred Securities for offering and sale by the
Underwriters or by dealers under the securities or blue sky laws of the states
and other jurisdictions which the Representative shall designate, (D) the fees
and expenses of any transfer agent or registrar, (E) the filing fees incident to
any required review by the National Association of Securities Dealers, Inc.
("NASD") of the terms of the sale of the Trust Preferred Securities, (F) listing
fees, if any, (G) the fees and expenses of the Debenture Trustee, including the
fees and disbursements of counsel for the Debenture Trustee in connection with
the Indenture and Junior Subordinated Debentures, (H) the fees and expenses of
the Property Trustee, including the fees and disbursements of counsel for the
Property Trustee in connection with the Trust Agreement and the Certificate of
Trust, and (I) all other costs and expenses incident to the performance of the
Offerors' obligations hereunder that are not otherwise specifically provided for
herein[; provided, however, in no event will the aggregate amount of expenses,
exclusive of any expenses pursuant to (C) and (E) above, payable to the
Underwriters or their counsel exceed $75,000]. If the sale of the Trust
Preferred Securities provided for herein is not consummated by reason of any
failure, refusal or inability on the part of either Offeror to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by either Offeror
is not fulfilled (and such non-fulfillment is not due to the Underwriters'
actions or omissions), the Company will reimburse the Underwriters for all
out-of-pocket disbursements (including, without limitation, reasonable fees and
disbursements of counsel for the Underwriters) incurred by the Underwriters in
connection with their investigation, preparing to market and marketing the Trust
Preferred Securities or in contemplation of performing their obligations
hereunder, up to a maximum amount not to exceed $75,000.] Neither Offeror shall
in any event be liable to any Underwriter for loss of anticipated profits from
the transactions covered by this Agreement.
(ix) The Offerors will apply the net proceeds from the sale of the Trust
Preferred Securities to be sold by the Trust, and the Company will apply the
proceeds from the sale of the Junior Subordinated Debentures, for the purposes
set forth in the Prospectus under the caption "Use of Proceeds."
(x) The Offerors will not take, directly or indirectly, prior to the
termination of the offering contemplated by this Agreement, any action designed
to or which might reasonably be expected to cause or result in, or which has
constituted, the stabilization or manipulation of the price of any security of
either Offeror to facilitate the sale or resale of the Trust Preferred
Securities.
(xi) Neither Offeror will incur any liability for any finder's or
broker's fee or agent's commission in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby.
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<PAGE> 17
(xii) The Offerors will inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution of the Trust
Preferred Securities by the Underwriters if either of them commences engaging in
business with the government of Cuba or with any person or affiliate located in
Cuba. Such information will be provided within 90 days after the commencement
thereof or after a change occurs with respect to previously reported
information.
(xii) The Offerors will not claim the benefit of any usury laws against
any holder of the Trust Preferred Securities.
(xiii) The Offerors will use their best efforts to cause, subject to
notice of issuance, the Trust Preferred Securities to be quoted on the Nasdaq
National Market.
5. Conditions of Underwriters' Obligations.
The obligations of the Underwriters hereunder are subject to the
accuracy, as of the date hereof and at the Closing Date (as if made at the
Closing Date), of and compliance with all representations, warranties and
agreements of the Offerors contained herein, to the performance by each Offeror
of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Mountain Standard Time, on the date of this Agreement, or such
later time and date as the Underwriters shall approve and all filings required
by Rules 424, 430A and 434 of the Rules and Regulations shall have been timely
made; no stop order suspending the effectiveness of the Registration Statement
or any amendment thereof shall have been issued and no proceedings for the
issuance of such an order shall have been initiated or threatened; and any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the Representative's reasonable satisfaction.
(b) The Representative shall not have advised the Company or the Trust
that the Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations), contains an untrue statement of fact which, in the
Representative's reasonable opinion, is material, or omits to state a fact
which, in the Representative's reasonable opinion, is material and is required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and such
misstatement or omission has not been corrected.
(c) Except as contemplated in the Prospectus or the Registration
Statement, subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, none of the Trust, the Company
or any subsidiary of the Company shall have incurred any material liabilities or
obligations, direct or contingent, not in the ordinary course of business, or
entered into any material transactions, not in the ordinary course of business,
or
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<PAGE> 18
declared or paid any dividends or made any distribution of any kind with respect
to its capital stock, except regular quarterly cash dividends declared by the
Board of Directors of the Company and paid by the Company in the ordinary course
of business in accordance with the dividend policy established by the Board of
Directors; and there shall not have been any change in the capital stock of the
Company or any subsidiary (except for options granted (or the exercise thereof)
pursuant to or shares of Common Stock issued pursuant to any employee benefit
plan, or as compensation to the directors of the Company), or any material
increase in the short-term or long-term debt, including capitalized lease
obligations (except such increases as are incurred in the ordinary course of
business) of the Company or its subsidiaries, or any issuance of warrants,
convertible securities or other rights to purchase the capital stock of the
Company or any of its subsidiaries (except as noted above), or any material
adverse change in condition (financial or otherwise), financial results or
business affairs of the Company, its subsidiaries and the Trust, taken as a
whole, that, in the Representative's reasonable judgment, makes it impractical'
or inadvisable to offer or deliver the Trust Preferred Securities on the terms
and in the manner contemplated in the Prospectus.
(d) On the Closing Date, there shall have been furnished to the
Representatives the opinion of Graham & Dunn PC, counsel for the Company, dated
the Closing Date and addressed to the Underwriters, to the effect that:
(i) Each of the Company and the Banks has the corporate power and
authority to own its properties and conduct its business as currently being
carried on and as described in the Registration Statement and Prospectus, and is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which its ownership or lease of property or the conduct
of its business makes such qualification necessary and in which the failure to
so qualify would have a material adverse effect upon the business, condition
(financial or otherwise), properties or results of operations of the Company,
its subsidiaries and the Trust, taken as a whole. Each of the Company and its
subsidiaries has been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation. The
Company is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended.
(ii) The authorized capitalization of the Company is as set forth in the
Prospectus under the heading "Capitalization" (except for shares of capital
stock subsequently issued pursuant to employee or director plans).
(iii) To the knowledge of such counsel, all of the issued and
outstanding capital stock of the Company's subsidiaries and the Common
Securities of the Trust are owned by the Company, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim, except in the case of
Glacier Bank of Eureka and Glacier Bank of Whitefish.
(iv) The statements in the Prospectus under the caption "Description of
the Preferred Securities," "Description of the Subordinated Debentures,"
"Description of the Guarantee" and "Relationship Among the Preferred Securities,
the Subordinated Debentures and the Guarantee," insofar as such statements
constitute matters of law applicable to the Offerors or summaries of documents,
fairly present the information required to be included therein in all material
respects.
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<PAGE> 19
(v) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement has been duly qualified under the Trust Indenture Act.
(vi) The Junior Subordinated Debentures are in the form contemplated by
the Indenture, have been duly authorized, executed and delivered by the Company
and, when authenticated by the Debenture 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) Neither the Company nor the Trust is and after giving effect to
the offering and sale of the Trust Preferred Securities, the Junior Subordinated
Debentures and the Guarantee and the application of the proceeds from the sale
of these securities as described in the Prospectus under the caption "Use of
Proceeds" will be, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the 1940 Act.
(viii) The statements set forth in the Prospectus under the caption
"Certain Federal Income Tax Consequences" constitute an accurate summary of the
matters addressed therein in all material respects, based upon current law and
the assumptions stated or referred to therein.
(ix) 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 Trust 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 Trust Preferred Securities at the time such interest
income is paid or accrued in accordance with such holder's regular method of tax
accounting.
(x) The Registration Statement has become effective under the Act and,
to the actual knowledge of such counsel, 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. The
Prospectus has been filed in the manner and within the time period required by
Rule 424(b) of the Act.
(xi) Such counsel does not know of any contracts or documents of a
character required to be described in the Registration Statement or Prospectus
or included as exhibits to the Registration Statement that are not described or
included as required.
(xii) To such counsel's knowledge, there is no action, suit or
proceeding before or by any federal court or federal governmental agency or
body, domestic or foreign, or any arbitrator, now pending or threatened in
writing against or affecting the Company, the Trust or any subsidiary which is
required to be disclosed in the Registration Statement (other than as disclosed
therein), and other than those which individually or in the aggregate would not
have a material adverse effect on the Company, its subsidiaries and the Trust,
taken as a whole, or which would not materially and adversely affect the
consummation of this Agreement.
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<PAGE> 20
(xiii) To such counsel's knowledge, no holders of securities of the
Company have rights, which have not been waived to the registration of shares of
common stock of the Company or other securities, because of the filing of the
Registration Statement by the Company or the offering contemplated hereby.
(xiv) The Company has full corporate power and authority to enter into
this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and
the Expense Agreement to which it is a party and to issue the Junior
Subordinated Debentures, and to perform its obligation under this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement. This Agreement has been duly authorized, executed and delivered by
the Company, and each of the Indenture, the Trust Agreement, the Guarantee
Agreement and the Expense Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid, legal and binding obligation
of the Company enforceable in accordance with its terms (except as rights to
indemnity hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors 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 Junior Subordinated Debentures and the Guarantee, and the
consummation of the transactions herein or therein contemplated will not result
in a breach or violation of any of the terms and provisions of, or constitute a
default under, (A) to such counsel's knowledge, any statute, rule or regulation
of the United States, or any rule or regulation of any Banking Regulator, or (B)
any agreement or instrument filed or incorporated by reference as an exhibit to
the Registration Statement, or (C) the articles, charter or bylaws of the
Company or any subsidiary, or (D) any order or decree known to such counsel of
any court, governmental agency or body or Banking Regulator having jurisdiction
over the Company or, any subsidiary or any of their respective properties and
issued with respect to the Company or any subsidiary , except for any breach,
violation or default which would not have a material adverse effect on the
Company, its subsidiaries and the Trust, taken as a whole, or the ability of the
Company to perform its obligations hereunder; and to the knowledge of such
counsel, no consent, approval, authorization or order of, or filing with, any
court or governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement, the Expense Agreement, or for the consummation of the transactions
contemplated hereby or thereby, including the issuance or sale of the Junior
Subordinated Debentures and the Guarantee by the Company and the Common
Securities and Trust Preferred Securities by the Trust, except (a) such as may
be required under the Act, or which has been obtained, or under state securities
or blue sky laws, and (b) the qualification of the Trust Agreement, the
Guarantee Agreement and the Indenture under the Trust Indenture Act and the
rules and regulations thereunder.
(xv) The Registration Statement and the Prospectus, and any amendment
thereof or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), comply as to form in all material
respects with the requirements of the Act and the Rules and Regulations.
(xvi) Each document filed pursuant to the Exchange Act (other than the
financial statements and the other financial and statistical data included or
incorporated by reference
20
<PAGE> 21
therein, as to which no opinion need be rendered) and incorporated by reference
into the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act
complied when so filed as to form in all material respects with the Exchange Act
and the rules and regulations thereunder.
(xvii) The Merger Agreement between the Company and WesterFed has been
duly authorized, executed and delivered by the Company and constitutes the valid
and binding agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to of affecting the
enforcement of creditors' rights generally of by general principles of equity
(regardless of whether considered in equity or at law).
Such counsel shall also include a statement to the effect that on the
basis of conferences with officers of the Company, examination of documents
referred to in the Registration Statement and Prospectus and such other
procedures as such counsel deemed appropriate, nothing has come to the attention
of such counsel that causes such counsel to believe that the Registration
Statement or any amendment thereof, at the time such Registration Statement
became effective and as of the Closing Date (including any Registration
Statement filed under Rule 462(b) of the Rules and Regulations), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus (as of their respective dates and as of the
Closing Date), as amended or supplemented, includes any untrue statement of
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no opinion as to
the financial statements or other financial or statistical data included in any
of the documents mentioned in this clause.
(e) On the Closing Date, there shall have been furnished to the
Representative the favorable opinion, dated as of Closing Date, of Richards,
Layton & Finger, counsel to Wilmington Trust Company, as Property Trustee under
the Trust Agreement, Debenture Trustee under the Indenture, and Guarantee
Trustee under the Guarantee Agreement, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) Wilmington Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of the State
of Delaware.
(ii) Wilmington Trust Company has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement, the Indenture and
the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement have been duly authorized, executed and delivered by Wilmington Trust
Company, and the Trust Agreement constitutes a legal, valid and binding
obligation of Wilmington Trust Company, enforceable against Wilmington Trust
Company, in accordance with its terms.
(iv) The execution, delivery and performance by Wilmington Trust Company
of the Trust Agreement, the Indenture and the Guarantee Agreement do not
conflict with or constitute a breach of the charter or by-laws of Wilmington
Trust Company.
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<PAGE> 22
(v) No consent, approval or authorization of, or registration with or
notice to, any governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers of Wilmington
Trust Company is required for the execution, delivery or performance by
Wilmington Trust Company of the Trust Agreement, the Indenture and the Guarantee
Agreement.
(f) On the Closing Date, there shall have been furnished to the
Representative the favorable opinion, dated as of Closing Date, of Richards,
Layton & Finger, as special Delaware counsel for the Offerors, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and all filings required as
of the date hereof under the Delaware Act with respect to the creation and valid
existence of the Trust as a business trust have been made.
(ii) Under the Trust Agreement and the Delaware Act, the Trust has the
trust power and authority to own property and to conduct its business, all as
described in the Prospectus.
(iii) The Trust Agreement constitutes a valid and binding obligation of
the Company and each of the Property Trustee, the Delaware Trustee and the
Administrative Trustees, and is enforceable against the Company and each of the
Property Trustee, the Delaware Trustee and 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 Trust 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 Trust Preferred Securities. The Trust 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 Trust Preferred Securities are fully paid and
non-assessable undivided beneficial interests in the assets of the Trust. The
respective holders of the Trust 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. We note that the respective
holders of the Trust Preferred Securities and the Common Securities may be
obligated, pursuant to the Trust Agreement, to make certain payments under the
Trust Agreement.
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<PAGE> 23
(vii) Under the Trust Agreement and the Delaware Act, the issuance of
the Trust Preferred Securities and the Common Securities is not subject to
preemptive or similar rights.
(viii) The issuance and sale by the Trust of the Trust 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 Certificate of Trust
or the Trust Agreement, or (b) any applicable Delaware law or Delaware
administrative regulation.
(g) On the Closing Date, there shall have been furnished such opinion or
opinions from Dorsey & Whitney LLP, counsel for the Underwriters, dated the
Closing Date and addressed to the Underwriters with respect to the formation of
the Company, the validity of the Trust Preferred Securities, the Indenture, the
Guarantee Agreement, this Agreement, the Registration Statement, the Prospectus
and other related matters as the Underwriters may reasonably request, and such
counsel shall have received such papers and information as they request to
enable them to pass upon such matters.
(h) On the Closing Date the Representative shall have received a letter
from KPMG LLP, independent certified public accountants, dated the Closing Date
and addressed to the Underwriters, in form and substance satisfactory to the
Representative, confirming that they are independent public accountants of the
Company and WesterFed within the meaning of the Act and the Rules and
Regulations and are in compliance with the applicable requirements relating to
the qualifications of accountants under Rule 241 of Regulation S-X of the
Commission, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not
more than five days prior to the date of such letter), the conclusions and
findings of said firm with respect to the financial information and other
matters covered by its letter delivered to the Representative concurrently with
the execution of this Agreement, and the effect of the letter so to be delivered
on the Closing Date shall be to confirm the conclusions and findings set forth
in such prior letter.
(i) On the Closing Date, there shall have been furnished to the
Representative, a certificate, dated the Closing Date and addressed to the
Underwriters, signed by two executive officers of the Company, to the effect
that:
(i) The representations and warranties of the Company in this Agreement
are true and correct, in all material respects, as if made at and as of the
Closing Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date; and
(ii) No stop order or other order suspending the effectiveness of the
Registration Statement or any amendment thereof or the qualification of the
Trust Preferred Securities for offering or sale has been issued, and no
proceeding for that purpose has been instituted or, to the best of their
knowledge, is contemplated by the Commission or any state or regulatory body.
23
<PAGE> 24
(j) On the Closing Date, there shall have been furnished to the
Representative a certificate, dated the Closing Date and addressed to the
Underwriters, signed by one or more of the Administrative Trustees, to the
effect that:
(i) The representations and warranties of the Trust in this Agreement
are true and correct, in all material respects, as if made at and as of the
Closing Date, and the Trust has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date; and
(ii) No stop order or other order suspending the effectiveness of the
Registration Statement or any amendment thereof or the qualification of the
Trust Preferred Securities for offering or sale has been issued, and no
proceeding for that purpose has been instituted or, to the best of their
knowledge, is contemplated by the Commission or any state or regulatory body.
(k) The Company shall have furnished to the Representative and to the
Underwriters' counsel such additional documents, certificates and evidence as
the Representative or they may have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the reasonable judgment of the Representative and the Underwriters'
counsel.
6. Indemnification and Contribution.
(a) The Offerors agree, jointly and severally, to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise (including in settlement of any litigation if such
settlement is effected with the written consent of the Company and the Trust),
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse any Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Offerors will
not be liable 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, the Prospectus or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Offerors by the Representative on behalf of the Underwriters
specifically for use in the preparation thereof; and provided further that the
Offerors shall not be liable to any Underwriter under the indemnity agreement in
this subsection (a) with respect to any Preliminary Prospectus to the extent
that any such loss, claim, damage or liability of such Underwriter results from
the fact that such Underwriter sold Trust Preferred Securities to a person to
whom there was not sent
24
<PAGE> 25
or given, at or prior to the written confirmation of such sale, a copy of the
Prospectus or a copy of the Prospectus as then amended or supplemented in any
case where such delivery is required by the Act if the Offerors have previously
furnished copies thereof to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus or the Prospectus, as the
case may be, which was corrected in the Prospectus (or the Prospectus as amended
or supplemented).
(b) Each Underwriter agrees, severally but not jointly, to indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of the Act, and the Trust against
any losses, claims, damages or liabilities to which the Company and the Trust
may become subject, under the Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Underwriters), insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, in reliance upon and in
conformity with written information furnished to the Company by the
Representative on behalf of such Underwriter, specifically for use in the
preparation thereof, and will reimburse the Company and the Trust for any legal
or other expenses reasonably incurred by the Company and the Trust in connection
with investigating or defending against any such loss, claim, damage, liability
or action as such expenses are incurred.
(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) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve the indemnifying party from any liability that it may have to
any indemnified party unless and to the extent the omission results in the
forfeiture by the indemnifying party of substantial rights and defenses. In case
any such action shall be brought against any indemnified party, and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of the
indemnifying party's election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. 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
25
<PAGE> 26
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 6 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company or the
Trust on the one hand and the Underwriters on the other from the offering of the
Trust Preferred Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Trust on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Trust on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Trust or the
Underwriters and the parties' relevant intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company, the Trust and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were to be determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence of
this subsection (e). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Trust Preferred Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
the Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company and the Trust may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 6 shall be in addition to any liability that
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company (including any person who,
with his or her
26
<PAGE> 27
consent, is named in the Registration Statement as about to become a director of
the Company), to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company or the Trust
within the meaning of the Act.
7. Representations and Agreements to Survive Deliver.
All representations, warranties, and agreements of the Offerors herein
or in certificates delivered pursuant hereto, and the agreements of the Offerors
and the Underwriters contained in Section 6 hereof shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof, or the Company or any of its
officers, directors, or controlling persons or the Trust or any if its trustees,
or controlling persons and shall survive delivery of, and payment for, the Trust
Preferred Securities to and by the Underwriters hereunder.
8. Termination.
The Representative shall have the right to terminate this Agreement, by
notice as hereinafter specified, at any time at or prior to the Closing Date (i)
if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as contemplated in the Registration Statement or the
Prospectus, any material adverse change in the condition (financial or
otherwise), financial results or business affairs of the Company, its
subsidiaries and the Trust, taken as a whole, whether or not arising in the
ordinary course of business, or (ii) if either Offeror shall have failed,
refused or been unable, at or prior to such Closing Date, to perform any
agreement on its part to be performed hereunder, or (iii) if any other condition
of the Underwriters' obligations hereunder required to be fulfilled by the
Offerors is not fulfilled, or (iv) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak or the
escalation of major hostilities involving the United States or the declaration
by the United States of a national emergency, war, or other calamity or crisis,
the effect of which is such as to make it, in the Representative's reasonable
judgment, impracticable or inadvisable to market the Trust Preferred Securities
or to enforce contracts for the sale of the Trust Preferred Securities, or (v)
if trading in the Trust Preferred Securities or the Company's common stock has
been suspended by the Commission, or if trading generally on either the New York
Stock Exchange or the Nasdaq National Market System has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of the New York Stock
Exchange or the Nasdaq National Market System or by order of the Commission or
any other governmental authority, or if a banking moratorium has been declared
by either Federal or Montana authorities. If this Agreement is terminated
pursuant to this Section 8, such termination shall be without liability of any
party to any other party except that the provisions of Section 4(a)(viii) and
Section 6 hereof shall at all times be effective.
9. Default by the Company.
If the Trust shall fail at the Closing Date to sell and deliver the
number of Trust Preferred Securities which it is obligated to sell hereunder or
the Company fails to deliver the number of Junior Subordinated Debentures
required to be delivered pursuant to the Trust Agreement, then this Agreement
shall terminate without any liability on the part of any non-defaulting party.
No
27
<PAGE> 28
action taken pursuant to this Section shall relieve the Trust or the Company so
defaulting from liability, if any, in respect of such default.
10. Default By the Underwriters
(a) If any Underwriter or Underwriters shall default in their
obligations to purchase the Trust Preferred Securities, which they have agreed
to purchase hereunder, the Representative may in its discretion arrange for it
or another party or other parties to purchase such Trust Preferred Securities on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter, the Representative does not arrange for the purchase of such Trust
Preferred Securities, then the Company and the Trust shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representative to purchase such Trust
Preferred Securities on such terms. In the event that, within the respective
prescribed periods, the Representative notifies the Company and the Trust that
it has so arranged for the purchase of such Trust Preferred Securities, or the
Company and the Trust notify the Representative that they have so arranged for
the purchase of such Trust Preferred Securities, the Representative or the
Company and the Trust shall have the right to postpone the Closing Date for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or in
any other documents or arrangements, and the Company and the Trust agree to file
promptly any amendments to the Registration Statement or the Prospectus which in
the opinion of the Representative may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Trust Preferred Securities. The
foregoing shall not relieve any defaulting Underwriter from liability for its
default.
(b) If, after giving effect to any arrangements for the purchase of the
Trust Preferred Securities of a defaulting Underwriter or Underwriters by the
Representative and the Company and the Trust as provided in subsection (a)
above, the aggregate principal amount of such Trust Preferred Securities which
remains unpurchased does not exceed 10% of the aggregate principal amount of all
the Trust Preferred Securities to be purchased, then the Company and the Trust
shall have the right to require the non-defaulting Underwriters to purchase the
number of Trust Preferred Securities which such Underwriter agreed to purchase
hereunder and, in addition, to require the non-defaulting Underwriters to
purchase its pro rata share (based on the aggregate principal amount of Trust
Preferred Securities which such Underwriter agreed to purchase hereunder) of the
Trust Preferred Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve the
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Trust Preferred Securities of a defaulting Underwriter or Underwriters by the
Representative and the Company and the Trust as provided in subsection (a)
above, the aggregate principal amount of such Trust Preferred Securities which
remains unpurchased exceeds 10% of the aggregate principal amount of all the
Trust Preferred Securities to be purchased, or if the Company and the Trust
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Trust Preferred Securities of the
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
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<PAGE> 29
Underwriter or the Company or the Trust except for the expenses to be borne by
the Company and the Underwriters as provided in Section 4(a)(viii) hereof and
the indemnity and contribution agreements in Section 6 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
11. Information Furnished by Underwriters.
The statements set forth in the ___ paragraphs under the caption
"Underwriting" in any Preliminary Prospectus and in the Prospectus constitute
the written information furnished by the Representative on behalf of the
Underwriters referred to in Section 2 and Section 6 hereof.
12. Notices.
Except as otherwise provided herein, all communications hereunder shall
be in writing or by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters, c/o D. A. Davidson & Co., 8
Third Street North, Great Falls, Montana 59401, Attention: Syndicate Department.
Notices to the Company shall be directed to Glacier Bancorp, Inc., 49 Commons
Loop, Kalispell, Montana 59901, Attention: Chief Executive Officer with a copy
to Graham and Dunn PC, 1420 Fifth Avenue, 33rd Floor, Seattle Washington 98101,
Attention: Stephen M. Klein. Notices to the Trust, shall be directed to c/o
Glacier Bancorp, Inc., 49 Commons Loop, Kalispell, Montana 59901, Attention:
Chief Executive Officer. All notices given by telegram shall be promptly
confirmed by letter. Any party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
13. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns and the controlling
persons, officers and directors referred to in Section 6. Nothing in this
Agreement is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable remedy or claim under or in respect of this
Agreement or any provision herein contained. The term "successors and assigns"
as herein used shall not include any purchaser, as such purchaser, of any of the
Trust Preferred Securities from the Underwriters.
14. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Montana, without giving effect to any provisions relating
to conflicts of laws.
15. Counterparts.
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.
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<PAGE> 30
Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the
Company, the Trust and the Underwriters in accordance with its terms.
Very Truly Yours,
GLACIER BANCORP, INC.,
By
---------------------------------
GLACIER CAPITAL TRUST I
By: Glacier Bancorp, Inc.
By
---------------------------------
Accepted as of the date hereof.
D. A. Davidson & Co., for itself and as
Representative of the several Underwriters
referred to in this Agreement
By:
---------------------------------
30
<PAGE> 31
SCHEDULE I
<TABLE>
<CAPTION>
Total Number of
Trust Preferred Securities
Underwriter To be purchased
----------- ---------------
<S> <C>
D. A. Davidson & Co.....................................
...........................
...........................
Total........................................... 1,400,000
</TABLE>
31
