EXHIBIT 1.1
$15,000,000
BNCCORP, Inc.
___% Subordinated Notes due 2004
UNDERWRITING AGREEMENT
May __, 1997
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza
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Ladies and Gentlemen:
BNCCORP, Inc., a Delaware corporation (the "Company") proposes, subject
to the terms and conditions stated herein, to issue and sell to you (the
"Underwriter"), ____% Subordinated Notes due 2004 in an aggregate principal
amount of $15,000,000 (the "Notes"). The Notes will be issued under an
indenture, dated as of May ___, 1997 (the "Indenture"), between the Company
and Firstar Bank Milwaukee, N.A., as trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (File No. 333-
) and a related preliminary prospectus for the registration of the Notes
under the Securities Act of 1933, as amended (the "Act"). The registration
statement, as amended at the time it was declared effective, including the
information (if any) deemed to be part thereof pursuant to Rule 430A under
the Act is herein referred to as the "Registration Statement." The form of
prospectus first filed by the Company with the Commission pursuant to Rules
424(b) and 430A under the Act is referred to herein as the "Prospectus."
Each preliminary prospectus included in the Registration Statement prior to
the time it becomes effective or filed with the Commission pursuant to Rule
424(a) under the Act is referred to herein as a "Preliminary Prospectus."
Copies of the Registration Statement, including all exhibits and schedules
thereto, any amendments thereto and all Preliminary Prospectuses have been
delivered to you.
The Company hereby confirms its agreements with respect to the purchase
of the Notes by the Underwriter as follows:
1. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with, the
Underwriter that:
(i) The Registration Statement has been declared effective under
the Act, and no post-effective amendment to the Registration Statement
has been filed as of the date of this Agreement. No stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or
threatened by the Commission.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") the rules and regulations
of the Commission promulgated thereunder and Industry Guide 3,
Statistical Disclosure by Bank Holding Companies (collectively, the
"Regulations"), and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, the
Company makes no representation or warranty as to information contained
in or omitted in reliance upon, and in conformity with, written
information furnished to the Company by the Underwriter expressly for
use in the preparation thereof.
(iii) The Registration Statement conforms, and the Prospectus and
any amendments or supplements thereto will conform, in all material
respects to the requirements of the Act, the Trust Indenture Act and
the Regulations. Neither the Registration Statement nor any amendment
thereto, and neither the Prospectus nor any supplement thereto,
contains or will contain, as the case may be, any untrue statement of a
material fact or omits or will omit to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty
as to information contained in or omitted from the Registration
Statement or the Prospectus, or any such amendment or supplement, in
reliance upon, and in conformity with, written information furnished to
the Company by the Underwriter, expressly for use in the preparation
thereof.
(iv) The Company is a "small business issuer" as such term is
defined in Rule 405 and Regulation S-B under the Act.
(v) The Company has been duly organized, is validly existing as a
corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own or lease its properties
and conduct its business as described in the Prospectus, and is duly
qualified to transact business in all jurisdictions in which the
conduct of its business or its ownership or leasing of property
requires such qualification and the failure so to qualify would have a
material adverse effect on the business or condition, financial or
otherwise, of the Company and its subsidiaries, taken as a whole. The
Company is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended.
(vi) The Company does not own any stock or other equity interest
in any corporation, partnership, joint venture, unincorporated
association or other entity, other than BNC Nationa Bank of Minnesota
(the "Minnesota Bank") and BNC National Bank of Bismarck (the "Bismarck
Bank") (collectively the "Subsidiary Banks"), BNC Financial
Corporation, a Minnesota corporation ("BNC Financial") and Bismarck
Properties, Inc., an inactive North Dakota corporation ("Bismarck
Properties") (the Subsidiary Banks, BNC Financial Corporation, Bismarck
Properties and any such other entity being collectively referred to
herein as the "subsidiaries"). The Company owns all of the issued and
outstanding capital stock of the subsidiaries, free and clear of all
liens, encumbrances and security interests, except as disclosed in the
Prospectus. Except as disclosed in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations
to issue, or other rights to convert any obligations into, shares of
capital stock or ownership interests in any of the subsidiaries of the
Company are outstanding. All outstanding shares of capital stock of
each of the subsidiaries of the Company have been duly authorized and
validly issued, are fully paid and non-assessable.
(vii) Each of the Subsidiary Banks are national banking
associations duly organized, validly existing and in good standing
under the laws of the United States and have the power and authority to
own or lease their respective properties and conduct their respective
businesses as described in the Prospectus. The Minnesota Bank is
authorized to conduct the business of banking in the State of Minnesota
and the Bismarck Bank is authorized to conduct the business of banking
in the State of North Dakota. None of the Subsidiary Banks are
required to be qualified to transact business as a foreign corporation
in any jurisdiction. The Minnesota Bank and the Bismarck Bank are
members of the Federal Reserve Bank of Minneapolis, and are each duly
authorized to operate a banking business. Each Subsidiary Bank is a
member of the Bank Insurance Fund of the Federal Deposit Insurance
Corporation (the "FDIC") and its deposit accounts are insured by the
FDIC to the fullest extent provided by law. No proceeding for the
termination of such insurance is pending or is threatened.
(viii) BNC Financial and Bismarck Properties have been duly
incorporated, are validly existing as corporations in good standing
under the laws of their jurisdiction of incorporation, have the
corporate power and authority to own or lease their properties and
conduct their businesses as described in the Prospectus, and are duly
qualified to transact business in all jurisdictions in which the
conduct of their business or their ownership or leasing of property
requires such qualification and the failure so to qualify would have a
material adverse effect on the business or condition, financial or
otherwise, of the Company and its subsidiaries, taken as a whole.
Bismarck Properties is an inactive North Dakota corporation that does
not own or lease any properties and does not currently conduct
business.
(ix) The Company has the power and authority to enter into this
Agreement and the Indenture and to authorize, issue and sell the Notes
it will sell hereunder as contemplated hereby. This Agreement and the
Indenture have been duly and validly authorized, executed and delivered
by the Company and constitute valid and binding agreements of the
Company in accordance with their terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the rights of creditors generally, by general
principles of equity and, with respect to Section 7 hereof, by the
public policy underlying the federal or state securities laws. The
Notes to be issued and sold by the Company to the Underwriter pursuant
to this Agreement and the Indenture have been duly authorized and, when
executed and authenticated in the manner set forth in the Indenture and
issued, sold and delivered in the manner set forth herein, will be the
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms and the terms of the Indenture,
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 Indenture
has been duly qualified under the Trust Indenture Act. The Indenture
will be substantially in the form filed as an exhibit to the
Registration Statement and will comply with the Trust Indenture Act and
the regulations thereunder. The Indenture and the Notes conform to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(x) The outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and
nonassessable. All offers and sales by the Company of outstanding
shares of capital stock and other securities of the Company, prior to
the date hereof, were made in compliance with the Act and all
applicable state securities or blue sky laws. There are no preemptive
rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of capital stock
of the Company pursuant to the Company's Certificate of Incorporation,
Bylaws or any agreement or other instrument to which the Company is a
party or by which the Company is bound. Neither the filing of the
Registration Statement nor the offering or the sale of the Notes as
contemplated by this Agreement gives rise to any rights for, or
relating to, the registration of any shares of capital stock or other
securities of the Company, except such rights which have been validly
waived or satisfied. Except as described in the Prospectus, there are
no outstanding options, warrants, agreements, contracts or other rights
to purchase or acquire from the Company any shares of its capital
stock. The Company has the authorized and outstanding capital stock
as set forth under the heading "Capitalization" in the Prospectus. The
outstanding capital stock of the Company conforms to the description
thereof contained in the Prospectus.
(xi) The financial statements, together with the related notes
and schedules as set forth in the Registration Statement and
Prospectus, present fairly the consolidated financial position, results
of operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Registration Statement at the
indicated dates and for the indicated periods. Such financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, and such financial statements comply in all material respect
with the requirements of the Act and the Regulations and all
adjustments necessary for a fair presentation of results for such
periods have been made, except as otherwise stated therein. The
summary and selected financial and statistical data included in the
Registration Statement present fairly the information shown therein on
the basis stated in the Registration Statement and have been compiled
on a basis consistent with the financial statements presented therein.
No other financial statements or schedules are required to be included
in the Registration Statement or Prospectus. The allowance for loan
losses of each of the Subsidiary Banks is adequate based on
management's assessment of various factors affecting the loan
portfolio, including a review of problem loans, business conditions,
historical loss experience, evaluation of the quality of the underlying
collateral and holding and disposal costs.
(xii) There is no action or proceeding pending or, to the
knowledge of the Company, threatened or contemplated against the Company
or any of its subsidiaries before any court or administrative or
regulatory agency which, if determined adversely to the Company or any
of its subsidiaries, would, individually or in the aggregate, result in
a material adverse change in the business or condition (financial or
otherwise), results of operations, stockholders' equity or prospects of
the Company and its subsidiaries, taken as a whole, except as set forth
in the Registration Statement.
(xiii) The Company has good and marketable title to all
properties and assets reflected as owned in the financial statements
referred to above (or as described as owned in the Prospectus), in each
case free and clear of all liens, encumbrances and defects, except such
as are described in the Prospectus or do not substantially affect the
value of such properties and assets and do not materially interfere
with the use made and proposed to be made of such properties and assets
by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company
and its subsidiaries.
(xiv) Since the respective dates as of which information is given
in the Registration Statement, as it may be amended or supplemented,
(A) there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
condition, financial or otherwise, of the Company and its subsidiaries,
taken as a whole, or the business affairs, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, whether or not occurring in the
ordinary course of business, including, without limitation, any
increase in the amount or number of classified assets of the Subsidiary
Banks, any decrease in net interest margin for any month to a level
below [4.25%], or any material decrease in the volume of loan
originations, the amount of deposits or the amount of loans, (B) there
has not been any transaction not in the ordinary course of business
entered into by the Company or any of its subsidiaries which is
material to the Company and its subsidiaries, taken as a whole, other
than transactions described or contemplated in the Registration
Statement, (C) the Company and its subsidiaries have not incurred any
material liabilities or obligations, which are not in the ordinary
course of business or which could result in a material reduction in the
future earnings of the Company and its subsidiaries, (D) the Company
and its subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire,
flood, windstorm, accident or other calamity, whether or not covered by
insurance, (E) there has not been any change in the capital stock of
the Company (other than upon the exercise of options and warrants
described in the Registration Statement), or any material increase in
the short-term or long-term debt (including capitalized lease
obligations) of the Company and its subsidiaries, taken as a whole,
other than with respect to deposits and Federal Home Loan Bank
advances, (F) there has not been any declaration or payment of any
dividends or any distributions of any kind with respect to the capital
stock of the Company, other than any dividends or distributions
described or contemplated in the Registration Statement, or (G) there
has not been any issuance of warrants, options, convertible securities
or other rights to purchase or acquire capital stock of the Company.
(xv) Neither the Company nor any of its subsidiaries is in
violation of, or in default under, its charter or bylaws, or any
statute, or any rule, regulation, order, judgment, decree or
authorization of any court or governmental or administrative agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties, or any indenture, mortgage, deed of trust,
loan agreement, lease, franchise, license or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them are bound or to which any property or
assets of the Company or any of its subsidiaries is subject, which
violation or default would have a material adverse effect on the
business, condition (financial or otherwise), results of operations,
stockholders' equity or prospects of the Company and its subsidiaries,
taken as a whole.
(xvi) The issuance and sale of the Notes by the Company and the
compliance by the Company with all of the provisions of this Agreement
and the Indenture and the consummation of the transactions contemplated
herein and therein will not violate any provision of the Certificate of
Incorporation or Bylaws of the Company or any of its subsidiaries or
any statute or any order, judgment, decree, rule, regulation or
authorization of any court or governmental or administrative agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties, and will not conflict with, result in a breach
or violation of, or constitute, either by itself or upon notice or
passage of time or both, a default under any indenture, mortgage, deed
of trust, loan agreement, lease, franchise, license or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any property or assets of the Company or any of its subsidiaries
is subject. No approval, consent, order, authorization, designation,
declaration or filing by or with any court or governmental agency or
body is required for the execution and delivery by the Company of this
Agreement and the consummation of the transactions herein contemplated,
except as may be required under the Act, the Trust Indenture Act or any
state securities or blue sky laws.
(xvii) The Company and each of its subsidiaries holds and is
operating in compliance in all material respects with all licenses,
approvals, certificates and permits from governmental and regulatory
authorities, foreign and domestic, which are necessary to the conduct
of its business as described in the Prospectus. Without limiting the
generality of the foregoing, the Company has all necessary approvals of
the Board of Governors of the Federal Reserve System (the "Board of
Governors") to own the stock of its subsidiaries. Neither the Company
nor any of its subsidiaries have received notice of nor have knowledge
of any basis for any proceeding or action relating specifically to the
Company or any of its subsidiaries for the revocation or suspension of
any such consent, authorization, approval, order, license, certificate
or permit or any other action or proposed action by any regulatory
authority having jurisdiction over the Company or any of its
subsidiaries that would have a material adverse effect on the Company
and its subsidiaries, taken as a whole. Except as disclosed in the
Prospectus, neither the Company nor any Subsidiary Bank is currently
subject to any cease and desist order, written agreement or memorandum
of understanding with, or is a party to any commitment letter or
similar undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory agreement letter from,
or have adopted any board resolutions at the request of the Board of
Governors, the FDIC, the Office of the Comptroller of the Currency (the
"OCC"), the North Dakota Department of Banking, the Minnesota
Department of Commerce or any other federal or state governmental
authorities charged with the supervision or regulation of national
banking associations, savings banks, banks, savings and loan companies
or associations, bank holding companies or savings and loan holding
companies or engaged in the insurance of bank deposits (collectively,
the "Bank Regulators"), and neither the Company nor any Subsidiary Bank
has been advised by any of the Bank Regulators that it is contemplating
issuing or requesting (or is considering the appropriateness of issuing
or requesting) any such order, directive, written agreement, memorandum
of understanding, extraordinary supervisory letter, commitment letter,
board resolutions or similar undertaking.
(xviii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, which have certified certain of the
financial statements filed with the Commission as part of the
Registration Statement, are independent public accountants as required
by the Act and the rules and regulations thereunder.
(xix) The Company has not taken and will not take, directly or
indirectly, any action designed to, or which has constituted, or which
might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company.
(xx) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering
and sale of the Notes other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by
the Company.
The Company is in compliance with all provisions of Florida
Statutes Section 517.075 (Chapter 92-198, laws of Florida). Neither
the Company nor any of its subsidiaries does business, directly or
indirectly, with the government of Cuba or with any person or entity
located in Cuba.
(xxii) The Company and its subsidiaries have filed all federal,
state, local and foreign tax returns or reports required to be filed,
and have paid in full all taxes indicated by said returns or reports
and all assessments received by it or any of them to the extent that
such taxes have become due and payable, except where the Company and
its subsidiaries are contesting in good faith such taxes and
assessments. The Company and each Subsidiary Bank have also filed all
required applications, reports, returns and other documents and
information with all Bank Regulators.
(xxiii) The Company and each of its subsidiaries owns or
possesses all patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service ▇▇▇▇ registrations,
copyrights, licenses, inventions, know-how, trade secrets and other
similar rights ("Intellectual Property Rights") necessary for the
conduct of its business as currently carried on or intended to be
carried on and as described in the Prospectus. No name which the
Company or any of its subsidiaries uses and no other aspect of the
business of the Company or any of its subsidiaries involves or gives
rise to any infringement of or conflict with, or license or similar
fees for, any patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service ▇▇▇▇ registrations,
copyrights, licenses, inventions, trade secrets or other similar rights
of others, and neither the Company nor any of its subsidiaries has
received any notice or claim of conflict with the asserted rights of
others with respect any of the foregoing.
(xxiv) The Company is not, and upon completion of the sale of the
Notes contemplated hereby will not be, required to register as an
"investment company" under the Investment Company Act of 1940, as
amended.
(xxv) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and the rules of Bank Regulators, and to
maintain accountability for assets; (C) access to records is permitted
only in accordance with management's general or specific authorization;
and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxvi) Other than as contemplated by this Agreement, 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.
(xxvii) The minute books and stock record books of the Company
and the subsidiaries are complete and correct and accurately reflect
all material actions taken at meetings of the shareholders and
directors of the Company and the subsidiaries, and of all committees
thereof, including, without limitation, the loan committees and the
audit committees of the Subsidiary Banks, and all issuances and
transfers of any shares of the capital stock of the Company and the
subsidiaries.
(xxviii) There has been no unlawful storage, treatment or
disposal of waste by the Company or any of its subsidiaries (or any of
their predecessors-in-interest) at any of the facilities owned thereby,
including, but not limited to, real estate owned property, except for
such violations which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, affairs or business
prospects of the Company and its subsidiaries, taken as a whole; there
has been no material spill, discharge, leak, emission, ejection,
escape, dumping or release of any kind onto the properties owned by the
Company or any of its subsidiaries, including, but not limited to, real
estate owned property, or into the environment surrounding those
properties of any toxic or hazardous substances as defined under any
federal, state or local regulations, laws or statutes, except for those
releases permissible under such regulations, laws or statutes or
otherwise allowable under applicable permits and except for such
releases which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, affairs or business
prospects of the Company and its subsidiaries, taken as a whole.
(xxix) No material labor dispute with the employees of the
Company or any of its subsidiaries exists or is imminent.
(xxx) Each employee benefit plan (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), or other bonus, retirement, pension, profit sharing, stock
bonus, thrift, stock option, stock purchase, incentive, severance,
deferred or other compensation, cafeteria, vacation, disability, or
other paid or unpaid leave of absence, health, life or other welfare
benefit plan, program, agreement or arrangement of, or applicable to
current or former employees of or independent contractors providing
services to the Company or any of its subsidiaries, which is presently
in existence, or with respect to which the Company or any subsidiary
could reasonably be expected to have, directly or indirectly, any
liability ("Benefit Plans"), was or has been established, maintained
and operated in all material respects in compliance with its terms and
with all applicable federal, state, and local statutes, orders,
governmental rules and regulations, including, but not limited to,
ERISA and the Internal Revenue Code of 1986, as amended (the "Code").
The Company and its subsidiaries do not, either directly or indirectly
as a member of a controlled group within the meaning of Sections
414(b), (c), (m) and (o) of the Code ("Controlled Group"), have any
material liability that remains unsatisfied for (A) the termination of
any single employer plan under Sections 4062 or 4064 of ERISA, a
cessation of operations pursuant to Section 4062(e) of ERISA or a
withdrawal from a multiple employer plan pursuant to Section 4063 of
ERISA, (B) any interest payments under Section 302(e) of ERISA or
Section 412(m) of the Code, (C) any excise tax imposed by Section 4971,
Section 4972, Section 4975, Section 4976, Section 4977, Section 4979,
Section 4980B, Section 4999 or Section 5000 of the Code or civil
penalty imposed by Section 502 of ERISA, (D) any minimum funding
contributions under Section 302(c)(11) of ERISA or Section 412(c)(11)
of the Code, (E) any accumulated funding deficiency within the meaning
of Section 412(a) of the Code, whether or not waived, or (F) to the
Internal Revenue Service, the Department of Labor, the Pension Benefit
Guaranty Corporation, or any Benefit Plan under Subtitle D or Subtitle
E of Title IV of ERISA, under Subchapter D of Chapter 1 of Subtitle A
of the Code or under Chapter 43 of Subtitle D of the Code. No action,
suit, grievance, arbitration or other matter of litigation or claim
with respect to any Benefit Plan (other than routine claims for
benefits made in the ordinary course of plan administration for which
plan administrative procedures have not been exhausted) is pending or,
to the Company's knowledge, threatened or imminent against or with
respect to any Benefit Plan, any member of a Controlled Group that
includes the Company, or any fiduciary within the meaning of Section
3(21) of ERISA with respect to a Benefit Plan which, if determined
adversely to the Company, would have a material adverse effect on the
Company and its subsidiaries, taken as whole. Neither the Company, any
of its subsidiaries, nor any member of a Controlled Group that includes
the Company or its subsidiaries, has any knowledge of any facts with
respect to any Benefit Plan that could give rise to any action, suit,
grievance, arbitration or any other manner of litigation or claim or
could be expected to have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(xxxi) The Company and its subsidiaries maintain insurance of the
types and in the amounts generally deemed adequate in their respective
businesses and consistent with insurance coverage maintained by similar
companies and businesses, and as required by the rules and regulations
of all governmental agencies having jurisdiction over the Company and
its subsidiaries, including Bank Regulators, all of which insurance is
in full force and effect.
(xxxii) All transactions required to be disclosed pursuant to
Item 404 of Regulation S-B between the Company and its subsidiaries and
the officers, directors and shareholders who beneficially own more than
5% of any class of the Company's voting securities of the Company and
its subsidiaries have been accurately disclosed in the Prospectus.
(xxxiii) Neither the Company nor its subsidiaries have, directly
or indirectly, at any time during the past five years (A) made any
unlawful contribution to any candidate for public office, or failed to
disclose fully any contribution in violation of law, or (B) made any
payment to any federal or state governmental officer or official, or
other person charged with similar public or quasi-public duties, other
than payments required or permitted by the laws of the United States or
any jurisdiction thereof.
(xxxiv) Proceeds from the sale of the Notes will constitute "Tier
II" capital under applicable regulations promulgated by the Board of
Governors.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriter or counsel to the Underwriter shall be deemed
to be a representation and warranty of the Company to the Underwriter as to
the matters covered thereby.
2. Purchase, Sale and Delivery of Notes.
(a) On the basis of the representations, warranties and covenants
contained herein, and subject to the terms and conditions herein set forth,
the Company agrees to sell to the Underwriter and the Underwriter agrees to
purchase from the Company the aggregate principal amount of Notes. The
Notes will be purchased at a price of 95.0% of par.
(b) The Notes to be purchased by the Underwriter hereunder, will be
registered in such denominations (which shall be authorized denominations
under the Indenture) and names as ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated may request
upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to you for the account of the
Underwriter at such time and place as shall hereafter be designated by the
Underwriter, against payment by the Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks,
payable to the order of the Company in next day funds. The time and date of
such delivery and payment shall be, with respect to the Notes, 8:30 a.m.
Minneapolis time, at the offices of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, on
June __, 1997, or such other time and date as you and the Company may agree
upon in writing, such time and date being herein referred to as the "Closing
Date," or such other time and date as you and the Company may agree upon in
writing. The Notes will be made available for checking and packaging at
least twenty-four hours prior to the Closing Date at a location as may be
designated by you.
3. Offering by Underwriter. It is understood that the Underwriter
proposes to make a public offering of the Notes as soon as the Underwriter
deems it advisable to do so. The purchase price for the Notes will be 95%
of the principal amount thereof. The Underwriter may from time to time
thereafter change the public offering price and other selling terms.
4. Covenants of the Company. The Company covenants and agrees with
the Underwriter that:
(a) The Company will prepare and timely file with the Commission
under Rule 424(b) under the Act a Prospectus containing information
previously omitted at the time of effectiveness of the Registration
Statement in reliance on Rule 430A under the Act, and will not file any
amendment to the Registration Statement or supplement to the Prospectus of
which the Underwriter shall not previously have been advised and furnished
with a copy and as to which the Underwriter shall have objected in writing
promptly after reasonable notice thereof or which is not in compliance with
the Act or the Regulations.
(b) The Company will advise the Underwriter promptly of any request
of the Commission for amendment of the Registration Statement or for any
supplement to the Prospectus or for any additional information, or of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus, of the suspension
of the qualification of the Notes for offering or sale in any jurisdiction,
or of the institution or threatening of any proceedings for that purpose,
and the Company will use its best efforts to prevent the issuance of any
such stop order preventing or suspending the use of the Prospectus or
suspending such qualification and to obtain as soon as possible the lifting
thereof, if issued.
(c) The Company will endeavor to qualify the Notes for sale under the
securities laws of such jurisdictions as the Underwriter may reasonably have
designated in writing and will, or will cause counsel to, make such
applications, file such documents, and furnish such information as may be
reasonably requested by the Underwriter, provided that the Company shall not
be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction where it is not now so qualified
or required to file such a consent. The Company will, from time to time,
prepare and file such statements, reports and other documents as are or may
be required to continue such qualifications in effect for so long a period
as the Underwriter may reasonably request for distribution of the Notes.
(d) The Company will furnish the Underwriter with as many copies of
any Preliminary Prospectus as the Underwriter may reasonably request and,
during the period when delivery of a prospectus is required under the Act,
the Company will furnish the Underwriter with as many copies of the
Prospectus in final form, or as thereafter amended or supplemented, as the
Underwriter may, from time to time, reasonably request. The Company will
deliver to the Underwriter, at or before the Closing Date, two (2) signed
copies of the Registration Statement and all amendments thereto including
all exhibits filed therewith, and will deliver to the Underwriter such
number of copies of the Registration Statement, without exhibits, and of all
amendments thereto, as the Underwriter may reasonably request.
(e) If, during the period in which a prospectus is required by law to
be delivered by the Underwriter or any dealer, any event shall occur as a
result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or if for any other reason it shall be necessary
at any time to amend or supplement the Prospectus to comply with any law,
the Company promptly will prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus so that the Prospectus as so amended or supplemented will not
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein in light of the
circumstances existing when it is so delivered, not misleading, or so that
the Prospectus will comply with law. In case the Underwriter is required to
deliver a prospectus in connection with sales of any Notes at any time nine
months or more after the effective date of the Registration Statement, upon
the request of the Underwriter but at the expense of the Underwriter, the
Company will prepare and deliver to the Underwriter as many copies as the
Underwriter may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act.
(f) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later
than 15 months after the end of the Company's current fiscal quarter, an
earnings statement (which need not be audited) in reasonable detail,
covering a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement, which earnings statement shall
satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder
and will advise you in writing when such statement has been so made
available.
(g) The Company will, for such period up to five years from the
Closing Date, deliver to the Underwriter copies of its annual report and
copies of all other documents, reports and information furnished by the
Company to its security holders or filed with any securities exchange
pursuant to the requirements of such exchange or with the Commission
pursuant to the Act or the Exchange Act. The Company will deliver to the
Underwriter similar reports with respect to significant subsidiaries, as
that term is defined in the rules and regulations under the Act, which are
not consolidated in the Company's financial statements.
(h) No offering, sale or other disposition of any common stock or
other capital stock of the Company, or warrants, options, convertible
securities or other rights to acquire such common stock or other capital
stock (other than pursuant to employee stock option plans, outstanding
options or on the conversion of convertible securities outstanding on the
date of this Agreement) will be made for a period of 120 days after the date
of this Agreement, directly or indirectly, by the Company otherwise than
hereunder or with the prior written consent of the Underwriter.
(i) The Company will apply the net proceeds from the sale of the
Notes to be sold by it hereunder substantially in accordance with the
purposes set forth under "Use of Proceeds" in the Prospectus.
(j) So long as any of the Notes are outstanding, the Company will
furnish to the Underwriter the reports required to be filed with the Trustee
pursuant to the Indenture, concurrently with such filing.
5. Costs and Expenses. Whether or not the transactions contemplated
by this Agreement are consummated, the Company will pay (directly or by
reimbursement) all costs, expenses and fees incident to the performance of
the obligations of the Company under this Agreement, including, without
limiting the generality of the foregoing, the following: (i) accounting
fees of the Company; (ii) the fees and disbursements of counsel for the
Company; (iii) the fees and expenses of the Trustee and counsel for the
Trustee; (iv) rating agency fees, if any; (v) the cost of preparing,
printing and filing of the Registration Statement, Preliminary Prospectuses
and the Prospectus and any amendments and supplements thereto and the
printing, mailing and delivery to the Underwriter and dealers of copies
thereof and of this Agreement, any Selected Dealers Agreement, the
Underwriter's Selling Memorandum, the Blue Sky Memorandum and any
supplements or amendments thereto (excluding, except as provided below, fees
and expenses of counsel to the Underwriter); (vi) the filing fees of the
Commission; (vii) the filing fees and expenses (including legal fees and
disbursements of counsel for the Underwriter) incident to securing any
required review by the NASD of the terms of the sale of the Notes; (viii)
listing fees, if any; (ix) transfer taxes and the expenses, including the
fees and disbursements of counsel for the Underwriter incurred in connection
with the qualification of the Notes under state securities or blue sky laws;
(x) the costs of preparing the Notes; (xi) the costs and fees of any
registrar or transfer agent; and (xii) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 5. In addition, the Company will
pay all travel and lodging expenses incurred by management of the Company in
connection with any informational "road show" meetings held in connection
with the offering and will also pay for the preparation of all materials
used in connection with such meetings. The Company shall not, however, be
required to pay for any of the Underwriter's expenses (other than those
related to qualification of the Notes under state securities or blue sky
laws and those incident to securing any required review by the NASD of the
terms of the sale of the Notes) except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied or
by reason of any failure, refusal or inability on the part of the Company to
perform any undertaking or satisfy any condition of this Agreement or to
comply with any of the terms hereof on its part to be performed, unless such
failure to satisfy said condition or to comply with said terms shall be due
to the default or omission of the Underwriter, then the Company shall
promptly upon request by the Underwriter reimburse the Underwriter for all
out-of-pocket accountable expenses, including fees and disbursements of
counsel, incurred in connection with investigating, marketing and proposing
to market the Notes or in contemplation of performing its obligations
hereunder; but the Company shall not in any event be liable to the
Underwriter for damages on account of loss of anticipated profits from the
sale by it of the Notes.
6. Conditions of Obligations of the Underwriter. The obligations of
the Underwriter to purchase the Notes on the Closing Date are subject to the
condition that all representations and warranties of the Company contained
herein are true and correct, at and as of the Closing Date, the condition
that the Company shall have performed all of its covenants and obligations
hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the Regulations under the Act and in accordance with Section 4(a) hereof;
no stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, or any part thereof shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of
the Underwriter.
(b) The Underwriter shall have received on the Closing Date, the
opinion of ▇▇▇▇▇, ▇▇▇▇▇▇ Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P.,
counsel for the Company, dated the Closing Date, addressed to the
Underwriter, to the effect that:
(i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its
properties and conduct its business as described in the Prospectus. The
Company is qualified as a foreign corporation to do business in the
States of North Dakota and Minnesota. The Company is a "small business
issuer" as such term is defined in Rule 405 in Regulation S-B under the
Act.
(ii) Each subsidiary of the Company has been duly organized and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with corporate power and
authority to own or lease its properties and conduct its business as
described in the Prospectus. None of the Subsidiary Banks are required
to be qualified to transact business as a foreign corporation in any
jurisdiction. The outstanding shares of capital stock of each
subsidiary have been duly authorized and validly issued, are fully paid
and nonassessable and are owned, directly by the Company, free and
clear of all liens, encumbrances and security interests, other than
security interests specifically disclosed in the Prospectus. To the
knowledge of such counsel, no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to
convert any obligations into any shares of capital stock or ownership
interests in each such subsidiary are outstanding.
(iii) The Company has the corporate power and authority to enter
into this Agreement and to authorize, issue and sell the Notes as
contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes the
valid and binding agreement of the Company in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting the
rights of creditors generally, by general principles of equity and,
with respect to Section 7 hereof, by the public policy underlying the
federal or state securities laws.
(iv) The Company has all requisite corporate power to execute,
deliver and perform its obligations under the Indenture. The Indenture
has been duly and validly authorized by all requisite corporate action,
duly executed and duly delivered by the Company and constitutes a valid
and binding instrument of the Company, enforceable against the Company
in accordance with its terms 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 Notes have been duly and validly authorized,
and, when executed, authenticated, issued and delivered in accordance
with the terms of the Indenture, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the
Indenture, 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
Notes and the Indenture conform, as to legal matters, to the
descriptions thereof contained in the Registration Statement and the
Prospectus. The Indenture complies in all material respects with the
Trust Indenture Act.
(v) The Company has authorized and outstanding capital stock as
described in the Prospectus. The outstanding shares of the Company's
capital stock have been duly authorized and validly issued and are
fully paid and nonassessable. No preemptive or, to the knowledge of
such counsel, other similar subscription rights of shareholders of the
Company, or of holders of warrants, options, convertible securities or
other rights to acquire shares of capital stock of the Company, exist.
To the knowledge of such counsel, no rights to register outstanding
shares of the Company's capital stock, or shares issuable upon the
exercise of outstanding warrants, options, convertible securities or
other rights to acquire shares of such capital stock, exist which have
not been validly exercised or waived with respect to the Registration
Statement. The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectus.
(vi) The Registration Statement has become effective under the
Act and the Indenture has been qualified under the Trust Indenture Act,
and, to the knowledge of such counsel, no stop order proceedings with
respect thereto have been instituted or are pending or threatened by
the Commission.
(vii) The Registration Statement, the Prospectus and each
amendment or supplement thereto comply as to form in all material
respects with the requirements of the Act and the Regulations
thereunder (except that such counsel need express no opinion as to the
financial statements and related schedules included therein).
(viii) The descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings, contracts
and other documents (A) in the Prospectus under the captions "Risk
Factors -- Subordination," "--Dependence on Dividends From Subsidiary
Banks," "--Potential Liability for Undercapitalized Subsidiary," "--
Government Regulation and Recent Legislation," "Business --
Properties," "Management -- Stock Incentive Plan," "--Incentive Bonus
Plan," "--Employment Agreements," "Limitations of Directors' Liability
and Indemnification," "Certain Transactions, "Supervision and
Regulation" and "Description of Notes" and (B) in the Registration
Statement in Item 24, are accurate summaries and fairly present the
information called for with respect to such matters.
(ix) Such counsel does not know of any contracts, agreements,
documents or instruments required to be filed as exhibits to the
Registration Statement, incorporated by reference into the Prospectus,
or described in the Registration Statement or the Prospectus which are
not so filed, incorporated by reference or described as required; and
insofar as any statements in the Registration Statement or the
Prospectus constitute summaries of any contract, agreement, document or
instrument to which the Company is a party, such statements are
accurate summaries and fairly present the information called for with
respect to such matters.
(x) Such counsel knows of no legal or governmental proceeding,
pending or threatened, before any court or administrative body or
regulatory agency, to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or Prospectus and are not so described, or
statutes or regulations that are required to be described in the
Registration Statement or the Prospectus that are not so described.
(xi) The execution and performance of this Agreement, the
Indenture and the Notes and the consummation of the transactions herein
and therein contemplated do not and will not conflict with or result in
a violation of or default under the charter or bylaws of the Company or
any of its subsidiaries, or under any statute, permit, judgment,
decree, order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries, including Bank Regulators, or any of their
properties, or under any lease, contract, indenture, mortgage, loan
agreement or other agreement or other instrument or obligation known to
such counsel to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any property or assets of the Company or any of its subsidiaries is
subject, except such agreements, instruments or obligations with
respect to which valid consents or waivers have been obtained by the
Company or any of its subsidiaries.
(xii) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in connection with the execution
and delivery of this Agreement, the Indenture and the Notes and the
consummation of the transactions herein and therein contemplated (other
than as may be required by state securities and blue sky laws, as to
which such counsel need express no opinion) except such as have been
obtained or made, specifying the same.
(xiii) The Company is not, and immediately upon completion of the
sale of Notes contemplated hereby will not be, required to register as
an "investment company" under the Investment Company Act of 1940, as
amended.
(xiv) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended.
(xv) Each of the Subsidiary Banks are national banking
associations duly organized, validly existing and in good standing
under the laws of the United States and have the requisite power to
carry on their respective businesses as now conducted. The Minnesota
Bank is authorized to conduct the business of banking in the State of
Minnesota. The Bismarck Bank is authorized to conduct the business of
banking in the State of North Dakota. The Bismarck Bank and the
Minnesota Bank are members of the Federal Reserve Bank of Minneapolis,
and are each duly authorized to operate a banking business.
(xvi) The Company has all necessary approvals of the Board of
Governors to own the stock of its subsidiaries. Except as disclosed in
the Prospectus, to the knowledge of such counsel, neither the Company
nor any Subsidiary Bank is subject to any cease and desist order,
written agreement or memorandum of understanding with, or are a party
to any commitment letter or similar undertaking to, or are subject to
any order or directive by, or is a recipient of any extraordinary
supervisory agreement letter from, or has adopted any board resolutions
at the request of any of the Bank Regulators, and, to the knowledge of
such counsel, neither the Company nor any Subsidiary Bank has been
advised by any of the Bank Regulators that it is contemplating issuing
or requesting (or is considering the appropriateness of issuing or
requesting) any such order, directive, written agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter,
board resolutions or similar undertaking. To the knowledge of such
counsel, neither the Company nor any subsidiary has received notice of
or has knowledge of any basis for any proceeding or action relating
specifically to the Company or its subsidiaries for the revocation or
suspension of any such consent, authorization, approval, order,
license, certificate or permit or any other action or proposed action
by any regulatory authority having jurisdiction over the Company or its
subsidiaries that would have a material adverse effect on the Company
or any subsidiary.
(xvii) The Company is a "small business issuer" as such term is
defined in Rule 405 and Regulation S-B under the Act.
(xviii) Such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Closing Date (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to the Closing Date (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading or that, as of the Closing Date
either the Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to the
Closing Date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading; and they do not know of any
amendment to the Registration Statement required to be filed.
In rendering any such opinion, such counsel may rely (i) as to matters
of fact, to the extent such counsel deems reasonable, on certificates of
responsible officers of the Company and public officials provided that the
extent of such reliance is specified in such opinion and (ii) as to matters
involving the application of laws of any jurisdiction other than the States
of Louisiana or Delaware, to the extent satisfactory in form and scope to
counsel for the Underwriter, upon the opinions of bank regulatory or local
counsel acceptable to counsel for the Underwriter provided that such counsel
shall also state that such opinions of bank regulatory or local counsel are
satisfactory to them and that the Underwriter is justified in relying on
such opinions of such counsel, and copies of such opinions shall be
delivered to the Underwriter and counsel for the Underwriter.
(c) The Underwriter shall have received from ____________, counsel
for the Trustee, an opinion dated the Closing Date, and in form satisfactory
to counsel for the Underwriter, to the effect that:
(i) The Trustee has been duly incorporated and is validly
existing in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to authorize,
execute, deliver and perform its obligations under the Indenture.
(ii) The Indenture has been duly authorized, executed and
delivered by the Trustee and is a valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms,
except as enforceability may be limited by general equitable principles
and by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally.
(iii) The Notes being delivered on such Closing Date have been
duly authenticated by the Trustee in accordance with the Indenture.
In rendering such opinion such counsel may rely as to matters of fact,
to the extent they deem proper, on certificates of appropriate officers of
the Trustee and of public officials.
(d) On or prior to the Closing Date, the form and validity of the
Notes and the Indenture, the legality and sufficiency of the corporate
proceedings and matters relating to the incorporation of the Company and
other matters incident to the issuance of the Notes, the form of the
Registration Statement and the Prospectus and of any amendment thereof or
supplement thereto filed prior to the Closing Date (other than financial
statements and schedules and other financial or statistical data included
therein), the authorization, execution, and delivery of this Agreement and
the description of the Notes and the Indenture contained in the Prospectus
shall have been reasonably approved by the Underwriter based on the opinion
of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriter. In connection
with such opinion, the Company shall have furnished to such counsel such
documents as they may have requested for the purpose of enabling them to
pass upon such matters, and such counsel may rely upon representations or
certificates of public officials, of the Trustee and of appropriate officers
of the Company. In addition, in giving such opinion, such counsel may rely
as to matters of law, other than the law of the United States and the State
of Minnesota, upon an opinion or opinions of local counsel, who may be
counsel for the Company, which states that the Underwriter is entitled to
rely thereon, provided that any such opinion or opinions are delivered to
the Underwriter and that ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall state that they
have no reason to believe that such opinions are not correct.
(e) The Underwriter shall have received on each of the date hereof
and the Closing Date, a signed letter, dated as of the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to the
Underwriter, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, to the effect that they are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the related rules and
regulations and containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any change or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in your judgment, is
material and adverse to the Company and makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Notes
being delivered at the Closing Date on the terms and in the manner
contemplated in the Prospectus.
(g) The Underwriter shall have received on the Closing Date a
certificate or certificates of the chief executive officer and the chief
financial officer of the Company to the effect that, as of the Closing Date,
each of them severally represents as follows:
(i) The Prospectus was filed with the Commission pursuant to Rule
424(b) within the applicable period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5 of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been initiated or are, to his knowledge, threatened by the
Commission.
(ii) The representations and warranties of the Company set forth
in Section 1 of this Agreement are true and correct at and as of the
Closing Date, and the Company has performed all of its obligations
under this Agreement to be performed at or prior to the Closing Date.
(h) The Company shall have furnished to the Underwriter such further
certificates and documents as the Underwriter may reasonably have requested.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in
all material respects reasonably satisfactory to the Underwriter and to
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriter.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriter hereunder may be terminated by
the Underwriter by notifying the Company of such termination in writing or
by facsimile at or prior to the Closing Date. In such event, the Company
and the Underwriter shall not be under any obligation to each other (except
to the extent provided in Sections 5 and 7 hereof).
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriter, each officer and director thereof, and each person, if any, who
controls the Underwriter within the meaning of the Act, against any losses,
claims, damages or liabilities to which the Underwriter or such persons may
became subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus or the Prospectus, including any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein
a material fact required to be stated therein, or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made, or (iii) any act or failure to act or any alleged act or
failure to act by the Underwriter in connection with, or relating in any
manner to, the Notes or the offering contemplated hereby, and which is
included as part of or referred to in any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arising out of or
based upon matters covered by (i) or (ii) above, and will reimburse the
Underwriter and each such controlling person for any legal or other expenses
reasonably incurred by the Underwriter or such controlling person in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement, or omission or alleged omission, made in the Registration
Statement, any Preliminary Prospectus or the Prospectus, including any
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished to the Company by the Underwriter specifically
for use therein; and provided, further, that the Company shall not be liable
in the case of any matter covered by clause (iii) above to the extent that
it is determined in a final judgment by a court of competent jurisdiction
that such losses, claims, damages or liabilities resulted directly from any
such acts or failures to act undertaken or omitted to be taken by the
Underwriter through its gross negligence or willful misconduct.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer or
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Underwriter will be liable in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission has been made in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for use therein.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity or
contribution may be sought pursuant to this Section 7, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 7(a) or (b) or contribution provided
for in Section 7(d) shall be available with respect to a proceeding to any
party who shall fail to give notice of such proceeding as provided in this
Section 7(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by the
failure to give such notice, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or
they may have to the indemnified party otherwise than on account of the
provisions of Section 7(a), (b) or (c). In case any such proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party and shall pay as incurred the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay promptly as
incurred the reasonable fees and expenses of the counsel retained by the
indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and the indemnified party shall have reasonably concluded that there
may be a conflict between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it or other indemnified parties which are
different from or additional to those available to the indemnifying party.
It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm at any time for all
such indemnified parties. Such firm shall be designated in writing by the
Underwriter and shall be reasonably satisfactory to the Company in the case
of parties indemnified pursuant to Section 7(a) and shall be designated in
writing by the Company and shall be reasonably satisfactory to the
Underwriter in the case of parties indemnified pursuant to Section 7(b).
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
Section 7(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriter on the other from the
offering of the Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriter on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriter 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 bears to the total underwriting
discounts and commissions received by the Underwriter, 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 on the one hand or the Underwriter on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contributions pursuant to
this Section 7(d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 7(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions or proceedings in respect thereto) referred to
above in this Section 7(d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), the Underwriter shall not be required to
contribute any amount in excess of the underwriting discounts and
commissions applicable to the Notes purchased by the Underwriter; and no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have, and the
obligations of the Underwriter under this Section 7 shall be in addition to
any liability which the Underwriter may otherwise have.
8. Notices. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriter, to ▇▇▇▇
▇▇▇▇▇▇▇▇ Incorporated, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: J. ▇▇▇▇▇ ▇▇▇▇▇, with copies to ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.; and if to the Company, to BNCCORP,
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, with
copies to Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P.,
Place St. ▇▇▇▇▇▇▇, ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
9. Termination. This Agreement may be terminated by you by notice
to the Company as follows:
(a) at any time prior to the earlier of (i) the time the Notes are
released by you for sale or (ii) 4:00 p.m., Minneapolis time, on the first
business day following the later of the date on which the Registration
Statement becomes effective or the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any material adverse
change in or affecting the condition, financial or otherwise, of the Company
and its subsidiaries taken as a whole or the business affairs, management,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (ii) any outbreak or escalation of hostilities
or declaration of war or national emergency after the date hereof or other
national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial markets
of the United States would, in your judgment, make the offering or delivery
of the Notes impracticable or inadvisable, (iii) suspension of trading in
securities on the New York Stock Exchange or the American Stock Exchange or
limitation on prices (other than limitations on hours or numbers of days of
trading) for securities on either such exchange, or a halt or suspension of
trading in securities generally which are quoted on the Nasdaq National
Market, or (iv) declaration of a banking moratorium by either federal or New
York State authorities; or
(c) as provided in Section 6 of this Agreement.
10. Written Information. For all purposes under this Agreement
(including, without limitation, Section 1, Section 2 and Section 7 hereof),
the Company understands and agrees with you that the following constitutes
the only written information furnished to the Company by or through the
Underwriter specifically for use in preparation of the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto: (i) the information relating to stabilization on page
two of the Preliminary Prospectus and the Prospectus, and (ii) the
information set forth under the caption "Underwriting" in the Preliminary
Prospectus and the Prospectus.
11. Successors. This Agreement has been and is made solely for the
benefit of and shall be binding upon the Underwriter, the Company and their
respective successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Notes merely because of such
purchase.
12. Miscellaneous. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants in this Agreement shall remain in full force and
effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of the Underwriter or controlling person
thereof, or by or on behalf of the Company or its directors and officers and
(c) delivery of and payment for the Notes under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of
this Agreement is held to be invalid, illegal or unenforceable under any
applicable law or rule in any jurisdiction, such provision will be
ineffective only to the extent of such invalidity, illegality or
unenforceability in such jurisdiction or any provision hereof in any other
jurisdiction
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Minnesota.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the
Underwriter in accordance with its terms.
Very truly yours,
BNCCORP, Inc.
By:_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chairman of the Board and Chief
Executive Officer
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
By:_______________________________
J. ▇▇▇▇▇ ▇▇▇▇▇
Its:______________________________
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