DRAFT 10/02/97
1,600,000 Trust Preferred Securities
FIB Capital Trust
% Cumulative Trust Preferred Securities
(Liquidation Preference of $25 per Trust Preferred Security)
Fully and Unconditionally Guaranteed by
First Interstate BancSystem, Inc.
UNDERWRITING AGREEMENT
, 1997
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:
First Interstate BancSystem, Inc., a Montana corporation (the
"Company"), as Depositor and as guarantor, and its fiduciary subsidiary, FIB
Capital Trust, 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 1,600,000 of the Trust's _______%
Cumulative Trust Preferred Securities, with a liquidation preference of $25
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 ____________, 1997, between the
Company and Wilmington Trust Company, as Guarantee Trustee (the "Guarantee
Trustee"), and entitled to the benefits of certain backup undertakings
described in the Prospectus with respect to the Company's agreement pursuant
to the Expense
Agreement (as defined herein) to pay all expenses relating to administration
of the Trust.
The proceeds of the sale of the 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 an Indenture (the "Indenture"), to be dated
___________, 1997, between the Company and Wilmington Trust Company, as
Debenture Trustee (the "Debenture Trustee").
The Offerors hereby confirm their agreement with respect to the sale
of the Trust Preferred Securities to the Underwriters.
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 1,600,000 in total, set forth opposite their respective names in
Schedule I.
1. REGISTRATION STATEMENT AND PROSPECTUS. A registration
statement on Form S-1 (File Nos. 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; and,
if the Offerors have elected to rely upon Rule 462(b) of the Rules and
Regulations to increase the size of the offering registered under the Act,
the Offerors will prepare and file with the Commission a registration
statement with respect to such increase pursuant to Rule 462(b). Copies of
such registration statement(s) and amendments and each related preliminary
prospectus have been delivered to the Underwriters.
If the Offerors have elected not to rely upon Rule 430A of the Rules
and Regulations, the Offerors have prepared and will promptly file an
amendment to the registration statement and an amended prospectus (including
a term sheet meeting the requirements of Rule 434 of the Rules and
Regulations) if necessary to complete the Prospectus. If the Offerors have
elected to rely upon Rule 430A of the Rules and Regulations, they will
prepare and file a prospectus (or a term sheet meeting the requirements of
Rule 434) pursuant to Rule 424(b) that discloses the information previously
omitted from the prospectus in reliance upon Rule 430A. Such registration
statement, as amended at the time it is or was declared effective by
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the Commission, and, in the event of any amendment thereto after the
effective date and prior to the Closing Date (as hereinafter defined), such
registration statement as so amended (but only from and after the
effectiveness of such amendment), including a registration statement (if any)
filed pursuant to Rule 462(b) of the Rules and Regulations increasing the
size of the offering registered under the Act and information (if any) deemed
to be part of the registration statement at the time of effectiveness
pursuant to Rules 430A(b) and 434(d) of the Rules and Regulations, is
hereinafter called the "Registration Statement". The prospectus included in
the Registration Statement at the time it is or was declared effective by the
Commission and any related prospectus supplement or supplements specifically
relating to the Trust Preferred Securities, the Guarantee and the Junior
Subordinated Debentures as filed with or promptly hereafter filed with the
Commission pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus", except that if any prospectus (including any term sheet meeting
the requirements of Rule 434 of the Rules and Regulations provided by the
Offerors for use with a prospectus subject to completion within the meaning
of Rule 434 in order to meet the requirements of Section 10(a) of the Rules
and Regulations) filed by the Offerors with the Commission pursuant to Rule
424(b) (and Rule 434, if applicable) of the Rules and Regulations or any
other such prospectus provided to the Underwriters 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) of the Rules and Regulations) differs from the prospectus on file at
the time the Registration Statement is or was declared effective by the
Commission, the term "Prospectus" shall refer to such differing prospectus
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations) from and after the time such prospectus is filed with the
Commission or transmitted to the Commission for filing pursuant to such Rule
424(b) (and Rule 434, if applicable) or from and after the time it is first
provided to 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 of the Rules and Regulations.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Offerors represent and warrant to, and agree with, each of
the Underwriters as follows:
(i) 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 the best of the Company'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,
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in the 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.
(ii) 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 the Offeror's
knowledge, threatened by the Commission.
(iii) The documents of the Company incorporated by reference in
the Registration Statement and the Prospectus, when they were filed with
the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement and the Prospectus, when such
documents are filed with the Commission will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and will not contain an untrue
statement of a material fact or omit to state a material fact
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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 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.
(iv) The consolidated financial statements of the Company and its
subsidiaries, together with the notes thereto, contained in or
incorporated by reference in the Registration Statement, Preliminary
Prospectus and Prospectus comply in all material respects with the
requirements of the Act, the Rules and Regulations and the Exchange Act
and fairly present the financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
operations and changes in financial position for the periods therein
specified; 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); and the supporting schedules
incorporated by reference in the Registration Statements present fairly
the information required to be stated therein. 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 and Other Information"
presents fairly the information purported to be shown therein at the
dates and for the periods indicated.
(v) The Company has been duly organized and is validly existing
as a corporation under the laws of the State of Montana, is duly
registered as a bank holding company under the Bank Holding Company Act
of 1956, as amended, is registered as a savings and loan holding company
under Section 10 of the Home Owners' Loan Act, 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 Company's business, condition (financial or
otherwise) or properties. 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) or properties of the
Company and its subsidiaries, taken as a whole. The
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Company and its subsidiaries have all requisite power and authority
(corporate and other) to own its properties and conduct its business as
it is currently being carried on and as described in the Prospectus.
The Company owns all of the outstanding capital stock of the Company's
subsidiaries, free of any liens, claims charges or encumbrances. The
accounts of each subsidiary are insured by the Bank Insurance Fund of
the Federal Deposit Insurance Corporation (the "FDIC") up to the maximum
applicable amount in accordance with the rules and regulations of the
FDIC, and no proceedings for the termination or revocation of such
membership or insurance are pending, or, to the knowledge of the
Company, threatened.
(vi) KPMG Peat Marwick LLP, who certified the financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus, are
independent public accountants 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, the Trust Preferred
Securities, the Common Securities and the Trust Agreement and is
authorized to do business in each jurisdiction in which such
qualification is required, except where the failure to so qualify would
not have a material adverse effect on the Company's condition (financial
or otherwise), earnings, business, prospects, assets, results of
operations or properties taken as a whole; the Trust has conducted and
will conduct no business other than the transactions contemplated by the
Trust Agreement and described in the Prospectus; the Trust is not a
party to or otherwise bound by any agreement other than those described
in the Prospectus; the Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not as an association
taxable as a corporation; and the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
(viii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, and except as
otherwise disclosed therein or in the documents incorporated therein by
reference, (i) there has been no material adverse change in the
condition (financial or otherwise) of the Company, the Trust or its or
their subsidiaries, or in the financial results, business affairs or
business prospects of the Trust, the Company or its subsidiaries,
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
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subsidiaries or the Trust, (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 described in the documents incorporated by
reference in the Registration Statement), or any issuance of options,
warrants, convertible securities or other rights to purchase capital
stock of the Company or any subsidiary, 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 Bank in the ordinary course of its
banking business. Neither the Trust, the Company nor any of its
subsidiaries has any material contingent liabilities which are not
disclosed in the Prospectus or in the Registration Statement or in the
documents incorporated therein by reference.
(ix) Except as set forth in the Registration Statement, the
Preliminary Prospectus and the Prospectus or in the documents
incorporated therein by reference, there is not pending or, to the
knowledge of the Trust or the Company, threatened or contemplated, any
action, suit or proceeding to which the Trust, the Company or any
subsidiary of the Company is a party or to which either of their assets
may be subject, before or by 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 condition (financial or otherwise) of the Trust, the
Company or its subsidiaries, taken as a whole, or in the financial
results, business affairs or business prospects of the Trust or the
Company and its subsidiaries, 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
or incorporated by reference as exhibits to the Registration Statement
by the Act or by the Rules and Regulations which contracts or documents
have not been so filed or incorporated by reference as required.
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(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 ____________, 1997 (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 as may be required under state securities or Blue
Sky laws. 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 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
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 is as set forth
under the caption "Capitalization" in the Prospectus. All of the
outstanding shares of capital stock 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.
(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 statements 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
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against payment therefor as described in the Registration Statement and
Prospectus, will be validly issued and (subject to the terms of the
Trust Agreement) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and will conform to all statements
relating thereto contained in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and at
the Closing Date all of the issued and outstanding Common Securities of
the Trust will be directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(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 in all material respects conform to the statements
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 "Senior 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 "Senior and Subordinated Debt" 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) 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 described in the
Preliminary Prospectus or the Prospectus, which violation or failure to
obtain would have a material
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adverse effect on the condition (financial or otherwise) of the Company
and its subsidiaries, or on the financial results, business affairs or
business prospects of the Company and its subsidiaries, taken as a
whole.
(xxiii) Neither the Company nor any subsidiary of the Company is in
violation of its respective articles 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 contract, license, indenture, mortgage, loan
agreement, note, lease or other 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 subsidiary is subject, where any such default, breach
or violation would have, individually or in the aggregate, a material
adverse effect on the Company and its subsidiaries, 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 made of such properties, (ii) referred to in the
Registration Statement, the Preliminary Prospectus and the Prospectus
(including the notes to the financial statements included or
incorporated by reference therein and the documents incorporated by
reference therein), or (iii) as could not reasonably be expected, singly
or in the aggregate, to have a material adverse effect on the business,
results of operations or condition (financial or otherwise) of the
Company and the subsidiaries, 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 or any subsidiary; each of
Company and its subsidiaries owns or possesses 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 described in the Registration Statement and Prospectus; except as
stated in the Registration Statement and Prospectus, to the best of 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
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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 material to the business or prospects of the Company and its
subsidiaries, taken as a whole, and neither the Company nor any
subsidiary has received any notice alleging any such infringement or fee.
(xxv) The Company maintains insurance of the type and in the
amounts generally deemed adequate for its business and 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 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.
(xxvii) The Company, the Trust and each 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
ownership of their respective properties and conduct of their respective
businesses as now being conducted and as 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 condition, business
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 and the Common Stock
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 an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or an "investment adviser" within the meaning of the Investment
Advisers Act of 1940, as amended.
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(xxx) Neither the Company, the Trust nor any of its officers,
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.
(xxxiv) No report or application filed by the Company or any
subsidiary with the FRB, the Office of Thrift Supervision (the "OTS"),
[NAME OF MONTANA REGULATOR], 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, 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 with
the applicable requirements of the FRB, the OTS, [NAME OF MONTANA
REGULATOR], the FDIC or such other regulatory authority (the "Banking
Regulators"), as the case may be. The Company and each subsidiary has
filed each Regulatory Report that it was required to file with any
Banking Regulator.
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(xxxv) The proceeds from the sale of the Trust Preferred Securities
will constitute "tier 1" capital (as defined in 12 C.F.R. Part 325) to
the maximum extent permitted by rules of the FRB.
(xxxvi) Each of the subsidiaries has properly administered, 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, in accordance with the terms of the
governing documents and applicable state and federal law and regulation
and common law. Neither of the subsidiaries nor any director, officer or
employee of either subsidiary 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 general affairs, condition
(financial or otherwise), business, key personnel, property, prospects,
net worth or results of operations of the Company and its subsidiaries,
taken as a whole, and the accountings for each such fiduciary account
are true and correct in all material respects and accurately reflect the
assets of such fiduciary account in all material respects.
(xxxvii) The conditions for use of Form S-1, as set forth in the
General Instructions thereto, have been satisfied.
(xxxviii) 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 ERISA) which could have a material
adverse effect on the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries for which the Company or any subsidiary would have any
liability; 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 general
affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, 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
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qualification, except for such loss as would not have a material adverse
effect on the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole.
(xxxix) 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 general affairs, condition (financial or
otherwise), business, key personnel, property, prospects, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole.
(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 representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF TRUST PREFERRED SECURITIES;
ADVISORY FEE.
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Trust agrees to issue and sell 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 certified or
official bank check or wire transfer of same day funds payable to the Company at
the offices
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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. Rocky
Mountain 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 may be made by credit through full fast transfer
to the accounts at The Depository Trust Company designated by the
Representative. Certificates representing the Trust Preferred Securities, in
definitive form and in such denominations and registered in such names as the
Representative may request upon at least two business days' prior notice to
the Company shall be prepared and will be made available for checking and
packaging, not later than 10:30 a.m., Rocky Mountain time, on the business
day next preceding the Closing Date 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.
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.
4. COVENANTS.
(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, the Company will use its best efforts to
cause the Registration Statement and any post-effective amendments
thereto to become effective as promptly as possible; the Company will
notify the 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
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prepare and file a Prospectus (or term sheet within the meaning of Rule
434 of the Rules and Regulations) containing the information omitted
therefrom pursuant to Rule 430A of the Rules and Regulations with the
Commission within the time period required by, and otherwise in
accordance with the provisions of, Rules 424(b), 430A and 434, if
applicable, of the Rules and Regulations; if the Company has elected to
rely upon Rule 462(b) of the Rules and Regulations to increase the size
of the offering registered under the Act, the Company will prepare and
file a registration statement with respect to such increase with the
Commission within the time period required by, and otherwise in
accordance with the provisions of, Rule 462(b); the Offerors will
prepare and file with the Commission, promptly upon 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 would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary, 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
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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 you 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 corporation. 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 it by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement.
(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 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).
(viii) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming
-18-
effective under the provisions of Section 8(a) hereof or 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 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 of the Underwriters' counsel) in connection
with the preparation printing, filing, delivery, and shipping of the
Registration Statement, the Trust Preferred Securities, 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 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, (I) rating agency fees, if any,
and (J) all other costs and expenses incident to the performance of the
Offerors' obligations hereunder that are not otherwise specifically
provided for herein. If the sale of the Trust Preferred Securities
provided for herein is not consummated by reason of action by either
Offeror pursuant to Section 8(a) hereof which prevents this Agreement
from becoming effective, or by reason of any failure, refusal or
inability on the part of either Offeror to perform any agreement on its
part to be performed, or because any other condition of 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. Neither Offeror shall in any event be liable to any
Underwriter for loss of anticipated profits from the transactions
covered by this Agreement.
-19-
(ix) The Offerors will apply the net proceeds from the sale of
the Trust Preferred Securities and the Common 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 have not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected
to cause or result in, or which has constituted, the stabilization or
manipulation of the price of any security of either Offeror to
facilitate the sale or resale of the Trust Preferred Securities, and has
not effected any sales of Common Stock which are required to be
disclosed in response to Item 701 of Regulation S-K under the Act which
have not been so disclosed in the Registration Statement.
(xi) Neither Offeror will incur any liability for any finder's
or broker's fee or agent's commission in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xii) The Offerors will inform the Florida Department of Banking
and Finance at any time prior to the consummation of the distribution of
the Trust Preferred Securities by the Underwriters if either of them
commence 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.
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., Rocky Mountain 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
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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 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, or entered into any
material transactions, or declared or paid any dividends or made any
distribution of any kind with respect to its capital stock, 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 (except for options granted (or
the exercise thereof) pursuant to or shares of Common Stock issued pursuant
to any employee benefit plan of, or as compensation to the directors as
discussed in the Registration Statement or the Prospectus), or any material
change in the short-term or long-term debt, including capitalized lease
obligations (except such increases as are incurred in the ordinary course of
business and are not material to the condition, financial or otherwise, of
the Company and its subsidiaries considered as a whole), of the Company or
its subsidiaries, or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock of the Company or
any of its subsidiaries (except for securities granted pursuant to the
Company's employee benefit plans), or any material adverse change in
condition (financial or otherwise), financial results, business affairs or
business prospects of the Trust or the Company and its subsidiaries, taken as
a whole, that, in the Representative's 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
Representative the opinion of Holland & Hart LLP, counsel for the Company,
dated the Closing Date and addressed to the Underwriters, to the effect that:
-21-
(i) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation or organization.
The Company is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended and as a savings and loan
holding company under Section 10 of the Home Owner's Act, as amended
("HOLA"). Each of the Company and its subsidiaries 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) or properties of the Company and its
subsidiaries, taken as a whole.
(ii) All of the issued and outstanding shares of the capital
stock of the Company is set forth in the Prospectus under the caption
"Capitalization" and have been duly authorized and validly issued and
are fully paid and nonassessable.
(iii) All of the issued and outstanding shares of capital stock of
each subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable. All of such shares of the subsidiaries
are owned by the Company free and clear of all perfected liens and, to
the best of such counsel's knowledge, other liens, encumbrances,
equities, claims, security interests, voting trusts or other defects of
title whatsoever.
(iv) All of the issued and outstanding Common Securities of the
Trust are owned by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
(v) The statements in the Prospectus under the caption
"Description of the Trust Preferred Securities", "Description of Junior
Subordinated Debentures", "Description of Guarantee", "Relationship
Among the Trust Preferred Securities, the Junior Subordinated Debentures
and the Guarantee", and "Description of First Interstate Capital Stock,"
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.
(vi) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement has been duly qualified under the Trust Indenture Act.
-22-
(vii) 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.
(viii) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all Senior and Subordinated Debt (as
defined in the Indenture) of the Company.
(ix) Neither the Company nor the Trust is an "investment company"
or a company "controlled" by an "investment company" within the meaning
of the 1940 Act.
(x) The statements set forth in the Prospectus under the caption
"Certain Federal Income Tax Consequences" constitute an accurate summary
of the matters addressed therein, based upon current law and the
assumptions stated or referred to therein.
(xi) 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.
(xii) For federal income tax purposes, (a) the Junior Subordinated
Debentures will constitute indebtedness of the Company and (b) the
interest on the Junior Subordinated Debentures will be deductible by the
Company on an economic accrual basis in accordance with Section 163(e)
of the Internal Revenue Code of 1986, as amended, and Treasury
Regulation Section 1.163-7.
(xiii) To the actual knowledge of such counsel, the Trust is not
required to be authorized to do business in any other jurisdiction and
the Trust is not a party to or otherwise bound by any agreement other
than those described in the Prospectus.
-23-
(xiv) The Trust Agreement has been duly authorized, executed and
delivered by the Company and the Administrative Trustees.
(xv) 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.
(xvi) The descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings or rulings,
contracts and other documents are accurate in all material respects and
fairly present the information required to be shown; and such counsel
does not know of any statutes or legal or governmental proceedings
required to be described in the Prospectus that are not described as
required, or of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus or included as
exhibits to the Registration Statement that are not described or
included as required.
(xvii) To the actual knowledge of such counsel, 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 or in documents
incorporated by reference therein), and other than those which
individually or in the aggregate would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or which
would not materially and adversely affect the consummation of this
Agreement.
(xviii) To the best of 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.
(xix) The documents incorporated by reference in the Registration
Statement and the Prospectus (other than the financial statements, notes
to the financial statements, other financial data, statistical data and
related schedules therein, as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to form
in all material
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respects with the requirements of the Exchange Act and the Rules and
Regulations.
(xx) The Company has full corporate power and authority and the
Trust has full trust power and authority to enter into this Agreement,
the Indenture, the Trust Agreement, the Guarantee Agreement and the
Expense Agreement to which it is a party and to issue the Junior
Subordinated Debentures and Trust Preferred Securities, as the case may
be, and to effect the transactions contemplated by this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement to which it is a party. 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 Trust Preferred
Securities, the Common Securities, the Junior Subordinated Debentures
and the Guarantee and the consummation of the transactions herein or
therein contemplated will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, (A) any
statute, rule or regulation of the United States or the State of
Montana, or any rule or regulation of any Banking Regulator, or (B) any
agreement or instrument know to such counsel to which the Company or the
Trust is a party or by which either is bound or to which any of their
property is subject which agreement or instrument is material to the
Company and its subsidiaries, taken as a whole, or (C) the charter or
bylaws of the Company or any subsidiary, or the Trust's Certificate, 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, any subsidiary or the Trust or any of its respective
properties, except for any breach, violation or default which would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or the ability of the Company or the Trust to perform
its obligations hereunder; and no consent, approval, authorization or
order of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement,
the Indenture, the Trust Agreement, the Guarantee Agreement, the Expense
Agreement, the Trust Preferred Securities, the Junior Subordinated
Debentures, or the Guarantee or for the consummation of the transactions
contemplated hereby or thereby, including the issuance or sale of the
Junior Subordinated Debentures by the Company and the Common
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Securities and Trust Preferred Securities by the Trust, except (a) such
as may be required under the Act, 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.
(xxi) 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.
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 data included in any of the documents mentioned in this clause.
In rendering such opinion such counsel may rely (i) as to matters of
law other than Montana and federal law, upon the opinion or opinions of local
counsel provided that the extent of such reliance is specified in such
opinion and that such counsel shall state that such opinion or opinions of
local counsel are satisfactory to them and that they believe they and the
Underwriters are justified in relying thereon and (ii) as to matters of fact,
to the extent such counsel deems reasonable upon certificates of officers of
the Company and its subsidiaries and of public officials provided that the
extent of such reliance is specified in such opinion.
(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:
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(i) Wilmington Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of the
State of Delaware.
(ii) Wilmington Trust Company has the power and authority to
execute, deliver and perform its obligations under the Trust Agreement,
the Indenture and the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement have been duly authorized, executed and delivered by
Wilmington Trust Company and constitutes a legal, valid and binding
obligation of Wilmington Trust Company, enforceable against Wilmington
Trust Company, in accordance with its terms.
(iv) The execution, delivery and performance by Wilmington Trust
Company of the Trust Agreement, the Indenture and the Guarantee
Agreement do not conflict with or constitute a breach of the charter or
by-laws of Wilmington Trust Company.
(v) No consent, approval or authorization of, or registration
with or notice to, any governmental authority or agency of the State of
Delaware or the United States of America governing the banking or trust
powers of Wilmington Trust Company is required for the execution,
delivery or performance by 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
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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.
(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 and the Guarantee Agreement, the
consummation by the Trust of the transactions contemplated by this
Agreement and compliance by the Trust with its obligations under this
Agreement do not violate (a) any of the provisions of the Certificate of
Trust or the Trust Agreement, or (b) any applicable Delaware law or
Delaware administrative regulation.
(g) On the Closing Date, there shall have been furnished such opinion
or opinions from Dorsey & Whitney LLP, counsel for the Underwriters,
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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 Peat Marwick 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 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 each 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 the President or the Chief Executive Officer and by a
Vice President, Secretary and Treasurer of the Company, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, in all material respects, as if made at
and as of the Closing Date, and the Offerors have complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) No stop order or other order suspending the effectiveness of
the Registration Statement or any amendment thereof or the qualification
of the 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: and
(iii) The signers of said certificate have carefully examined the
Registration Statement and the Prospectus, and (A) such documents
contain all statements and information required to be included therein,
the
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Registration Statement, or any amendment thereof, does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus does not include any untrue
statement of material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, (B) since the effective date of the
Registration Statement, there has occurred no event required to be set
forth in an amended or supplemented prospectus which has not been so set
forth, (C) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the
Trust, the Company nor any of its subsidiaries has incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions, not in the ordinary course of business, or
declared or paid any dividends or made any distribution of any kind with
respect to its capital stock (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, except as
disclosed in the Prospectus, there has not 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 the employee benefit plans of, or as compensation to
the directors disclosed in the Registration Statement or Prospectus), or
any issuance of options, warrants, convertible securities or other
rights to purchase capital stock of the Company or any subsidiary, or
any material increase in the short-term or long-term debt (including
capitalized lease obligations) of the Company or any subsidiary, or any
material adverse change, in condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole, or in the financial
results or business affairs of the Company and its subsidiaries, taken
as a whole, and the Company has not sustained any material loss or
damage to its property or material interference with its business
whether or not any of the foregoing is insured, and (D) except as stated
in the Registration Statement and the Prospectus, there is not pending,
or, to the knowledge of the Company or the Trust, threatened or
contemplated, any action, suit or proceeding to which the Trust, the
Company or any of its subsidiaries is a party before or by any court or
governmental agency, authority or body, or any arbitrator, which might
result in any material adverse change in the condition (financial or
otherwise) of the Company and its subsidiaries, taken as a whole, or in
the financial results or business affairs of the Company and its
subsidiaries, taken as a whole.
(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 the Administrative Trustees, to the effect
that:
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(i) The representations and warranties of the Trust in this
Agreement are true and correct, in all material respects, as if made at
and as of the Closing Date, and the Trust has complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) No stop order or other order suspending the effectiveness of
the Registration Statement or any amendment thereof or the qualification
of the 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; and
(iii) The signers of said certificate have carefully examined the
Registration Statement and the Prospectus, and any amendments thereof or
supplements thereto (including any term sheet within the meaning of Rule
434 of the Rules and Regulations), and (a) such documents contain all
statements and information required to be included therein, the
Registration Statement, or any amendment thereof, does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented,
does not include any untrue statement of material fact or omit to state
a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, (B) since
the effective date of the Registration Statement, there has occurred no
event required to be set forth in an amended or supplemented prospectus
which has not been so set forth, (C) subsequent to the respective dates
as of which information is given in the Registration Statement and the
Prospectus, the Trust has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, not in the ordinary course of business, or declared or
paid any dividends or made any distribution of any kind with respect to
its trust preferred securities, and except as disclosed in the
Prospectus, there has not been any change in the trust preferred
securities, or any material change in the short-term or long-term debt,
or any issuance of options, warrants, convertible securities or other
rights to purchase the preferred securities, of the Trust or any
material adverse change in the condition (financial or otherwise) of the
Trust, or in the financial results or business affairs of the Trust, and
the Trust has not sustained any material loss or damage to its property
or material interference with its business, whether or not any of the
foregoing is insured, and (D) except as stated in the Registration
Statement and the Prospectus, there is not pending, or, to the knowledge
of the Trust, threatened or contemplated, any action, suit or proceeding
to which the Trust is a party before or by any court or governmental
agency, authority or body, or
-31-
any arbitrator, which might result in any material adverse change in the
condition (financial or otherwise), business or results of operations of
the Trust.
(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 Representative and the Underwriters' counsel.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors agree, jointly and severally, to indemnify and
hold harmless each Underwriter against any losses, claims, damages,
liabilities or expenses, 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
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 the Underwriters
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending against such loss, claim, damage, liability or
action; provided, however, that the Offerors shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
any Preliminary Prospectus, the Prospectus, 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 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
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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 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 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.
(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 shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any
liability that it may have to any indemnified party. In case any such action
shall be brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate in, and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of the
indemnifying party's election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that if, in the sole
judgment of the indemnified party, it is advisable for the indemnified party
to be represented by separate counsel other than counsel for the indemnified
party,
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the indemnified party shall have the right to employ a single counsel to
represent the indemnified party, in which event the reasonable fees and
expenses of such separate counsel shall be borne by the indemnifying party.
An indemnifying party shall not be obligated under any settlement agreement
relating to any action under this Section 6 to which it has not agreed in
writing.
(e) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company or the Trust on the one hand and the
Underwriters on the other from the offering of the 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, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Trust or the 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
-34-
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
paragraph (d) 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 consent, is named in the
Registration Statement as about to become a director of the Company), to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company or the Trust within the meaning of
the Act.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Offerors herein or in
certificates delivered pursuant hereto, and the agreements of the Offerors
and 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. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective at 10:00 a.m., Rocky
Mountain time, on the first full business day following the effective date of
the Registration Statement, or at such earlier time after the effective time of
the Registration Statement as the Representative in its discretion shall first
release the Trust Preferred Securities for sale to the public; provided, that if
the Registration Statement is effective at the time this Agreement is executed,
this Agreement shall become effective at such time as the Representative in its
discretion shall first release the Trust Preferred Securities for sale to the
public. For the purpose of this Section, the Trust Preferred Securities shall
be deemed to have been released for sale to the public upon release by the
Representative of the publication of a newspaper advertisement relating thereto
or upon release by the Representative of telexes offering the Trust Preferred
Securities for sale to securities dealers, whichever shall first occur. By
giving notice as hereinafter specified before the time this Agreement becomes
effective, the Representative, the Trust or the Company may prevent this
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Agreement from becoming effective without liability of any party to any other
party, except that the provisions of Section 4(a)(viii) and Section 6 hereof
shall at all times be effective.
(b) The 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, any material adverse change in the condition
(financial or otherwise) of the Company, or in the financial results,
business affairs or business prospects of the Company, 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 has been suspended by the Commission, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange 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
said Exchanges 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(b), such termination shall be without liability of any party to any other
party except that the provisions of Section 4(a)(viii) and Section 6 hereof
shall at all times be effective.
(c) If the Representative elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this
Section, the Company shall be notified promptly by the Representative by
telephone or telegram, confirmed by letter. If the Trust or the Company
elects to prevent this Agreement from becoming effective, the Representative
shall be notified by the Trust or the Company by telephone or telegram,
confirmed by letter.
9. DEFAULT BY THE COMPANY. If the Trust shall fail at the Closing Date
to sell and deliver the number of 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
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party. No action taken pursuant to this Section shall relieve the Trust or
the Company so defaulting from liability, if any, in respect of such default.
10. DEFAULT BY THE UNDERWRITERS
(a) If any Underwriter shall default in its obligation to purchase
the Trust Preferred Securities which it has 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 it has 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.
(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 one-eleventh 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.
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(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 one-eleventh 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 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 last paragraph of the cover page and under the caption "Underwriting" in
any Preliminary Prospectus and in the Prospectus constitute the written
information furnished by the 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 telegraph and, if to the Underwriters,
shall be mailed, telegraphed or delivered to the Underwriters, c/o D. A.
Davidson & Co., 8 Third Street North, Great Falls, Montana 59401, Attention:
Syndicate Department; if to the Company, shall be mailed, telegraphed or
delivered to it at First Interstate BancSystem, Inc., 401 North 31st Street,
Billings, Montana 59116, Attention: Chief Executive Officer; if to the Trust,
shall be mailed, telegraphed or delivered to it c/o First Interstate
BancSystem, Inc., 401 North 31st Street, Billings, Montana 59116, Attention:
Chief Executive Officer. All notices given by telegram shall be promptly
confirmed by letter. Any notice to the Trust shall also be copied to the
Company at the address previously stated, Attention: Chief Executive Officer.
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.
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14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Montana.
[Signature Page Follows]
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Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the
Company and the Underwriters in accordance with its terms.
Very truly yours,
FIRST INTERSTATE BANCSYSTEM, INC.,
By
-------------------------------------
FIB CAPITAL TRUST
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:
--------------------------------
Authorized Signatory
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SCHEDULE I
Total Number of
Trust Preferred Securities
Underwriter to be Purchased
----------- ---------------------------
D. A. Davidson & Co.............................. $
[NAME OF UW].....................................
Total................................... $