EXHIBIT 1.1
3,400,000 SHARES
GLACIER WATER TRUST I
(a Delaware Business Trust)
___% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per
Trust Preferred Security)
UNDERWRITING AGREEMENT
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January __, 1998
SUTRO & CO. INCORPORATED
EVEREN SECURITIES, INC.
XXXXXXX, XXXXXX & CO.
c/o SUTRO & CO. INCORPORATED
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Equity Syndication Department
Ladies and Gentlemen:
1. Introduction.
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Glacier Water Services, Inc., a Delaware corporation ("Glacier" or
collectively, with its predecessors and wholly-owned subsidiaries, excluding
Glacier Water Trust I, the "Company") and its financing subsidiary, Glacier
Water Trust I, a Delaware business trust (the "Trust", and hereinafter together
with Glacier, the "Offerors"), propose that pursuant to the terms of this
Agreement, the Trust issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters"), for whom Sutro & Co. Incorporated,
EVEREN Securities, Inc. and Xxxxxxx, Xxxxxx & Co. are acting as representatives
(the "Representatives"), an aggregate of 3,400,000 shares of ___% Cumulative
Trust Preferred Securities having a Liquidation Amount of $25 per share (the
"Trust Preferred Securities"), to be issued under the Trust Agreement (as
hereinafter defined), the terms of which are more fully described in the
Prospectus (as hereinafter defined). The words "you" and "your" used herein
refer to the Representatives of the Underwriters.
2. Representations and Warranties of the Company.
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The Offerors, jointly and severally, represent, warrant and agree with
each of the Underwriters that:
(a) The Offerors meet the requirements for use of Form S-2 under the
Securities Act of 1933, as amended (the "Act"). A registration statement on
Form S-2 (File No. 333-40335)
under the Act, with respect to the Trust Preferred Securities, the ____% Junior
Subordinated Deferrable Interest Debentures due 2028 of Glacier (the
"Debentures"), and the Guarantee pursuant to the Guarantee Agreement (as
hereinafter defined) for the benefit of the holders of the Trust Preferred
Securities (the "Guarantee"). The aforementioned registration statement,
including a form of prospectus subject to completion, has been prepared by the
Offerors in conformity with the requirements of the Act and the rules and
regulations (the "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
(the "Trust Indenture Regulations"). Such registration statement has been filed
with the Commission under the Act; and one or more amendments to the
registration statement may also have been so filed; 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
representatives. After the execution of this Agreement, the Offerors shall file
with the Commission either (i) if the registration statement, as it may have
been amended, has been declared by the Commission to be effective under the Act,
a prospectus in the form most recently included in an amendment to the
registration statement filed with the Commission (or, if no such amendment shall
have been filed, in the registration statement), with such insertions and
changes as are required by Rule 430A under the Act or permitted by Rule 424(b)
under the Act as shall have been provided to and approved by the Representatives
prior to the filing thereof, or (ii) if the registration statement, as it may
have been amended, has not been declared by the Commission to be effective under
the Act, an amendment to the registration statement, including a form of
prospectus, necessary to permit such registration statement to become effective,
a copy of which amendment has been furnished to and approved by the
Representatives prior to the filing thereof. As used in this Agreement, the term
"Registration Statement" means the registration statement, as amended at the
time when it was or is declared effective under the Act, and, in the event of
any amendment thereto after the effective date and prior to the Closing Time (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, including (i) all
documents (or portions thereof) incorporated by reference therein filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (ii) all
financial schedules and exhibits thereto, and (iii) any information omitted
therefrom pursuant to Rule 430A under the Act and included in the Prospectus (as
hereinafter defined); the term "Preliminary Prospectus" means each prospectus
subject to completion contained in the Registration Statement or any amendment
thereto including all documents (or portions thereof) incorporated by reference
therein under the Exchange Act (including the prospectus subject to completion,
if any, included in the Registration Statement or any amendment thereto or filed
pursuant to Rule 424(a) under the Act at the time it was or is declared
effective); and the term "Prospectus" means the prospectus first filed with the
Commission pursuant to Rule 424(b) under the Act or, if no prospectus is
required to be filed pursuant to said Rule 424(b), such term, means the
prospectus included in the Registration Statement, in each case
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including the financial schedules and all documents (or portions thereof)
incorporated by reference therein under the Exchange Act.
(b) The documents incorporated by reference in the Preliminary
Prospectus or Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the Commission, as the
case may be, complied in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder (the "Exchange Act Rules
and Regulations"), and when read together and with the other information in the
Preliminary Prospectus or Prospectus, as the case may be, at the time the
Registration Statement became or becomes effective and at the Closing Time, did
not or will 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.
(c) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus and has not instituted or threatened to
institute any proceedings with respect to such an order. When any Preliminary
Prospectus was filed with the Commission it (i) contained all statements
required to be stated therein in accordance with, and complied in all material
respects with the requirements of, the Act and the Rules and Regulations, the
Trust Indenture Act and the Trust Indenture Regulations, and (ii) did not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. When the Registration
Statement or any amendment thereto was or is declared effective, it (iii)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act and the Rules and Regulations, the Trust Indenture Act
and the Trust Indenture Regulations and (iv) did not or will not include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading. When the Prospectus and when any
amendment or supplement thereto is filed with the Commission pursuant to Rule
424(b) (or, if the Prospectus or such amendment or supplement is not required to
be so filed, when the Registration Statement and when any amendment thereto
containing such amendment or supplement to the Prospectus was or is declared
effective) and at all times subsequent thereto up to and including the Closing
Time (as defined in Section 3 hereof), the Prospectus, as amended or
supplemented at any such time, (x) contained or will contain all statements
required to be stated therein in accordance with, and complied or will comply in
all material respects with the requirements of, the Act and the Rules and
Regulations, the Trust Indenture Act and the Trust Indenture Regulations and (y)
did not or will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (c) shall not apply to statements or
omissions made in any Preliminary Prospectus, the Registration Statement or any
amendment thereto, the Prospectus or any amendment or supplement thereto, that
part of the Registration Statement which constitutes the Statements of
Eligibility and Qualification under the Trust Indenture Act (Forms T-1) of the
Indenture Trustee, the Property Trustee or the Guarantee Trustee (all as
hereinafter defined), or any statements by the Offerors in reliance upon, and in
conformity with, information furnished in writing to the Offerors by or on
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behalf of the Underwriters through the Representatives expressly for use in any
of the aforementioned documents. The "Indenture Trustee" as used herein means
Wilmington Trust Company ("WTC") in its capacity as Indenture Trustee with
respect to the Junior Subordinated Indenture dated as of January __, 1998
between Glacier and WTC (the "Indenture"); the "Property Trustee" and "Delaware
Trustee" as used herein refer to WTC in its various capacities as the Property
Trustee, Delaware Trustee and the Bank with respect to the Amended and Restated
Trust Agreement dated as of January __, 1998 among Glacier, WTC, and Xxxxx X.
Xxxxx, Xxxxx X. Xxxxxx, and Xxxxxx X. Xxxxxx (the "Trust Agreement"); the
"Guarantee Trustee" as used herein refers to WTC in its capacity as Guarantee
Trustee with respect to the Guarantee Agreement dated as of January __, 1998
between Glacier and WTC (the "Guarantee Agreement"); and "Trustees" as used
herein refers collectively to the Property Trustee, the Delaware Trustee and the
Administrative Trustees (as hereinafter defined).
(d) The only subsidiaries of Glacier (other than the Trust) are GW
Services, Inc., a California corporation, Glacier Water Services International,
a Delaware corporation, GW Services International, Inc., a Delaware corporation,
and GW Mexico, Inc., a Delaware corporation (each a "Subsidiary" and
collectively the "Subsidiaries"). Each of Glacier and the Subsidiaries is duly
organized and validly existing in good standing under the laws of its
jurisdiction of organization with full power and authority (corporate and other)
to own or lease its properties and to conduct its business as described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); each of Glacier and the
Subsidiaries is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction (i) in which the conduct of its business
requires such qualification (except for those jurisdictions in which the failure
so to qualify has not had and will not have a Material Adverse Effect (as
hereinafter defined)) and (ii) in which it owns or leases property. "Material
Adverse Effect" means, when used in connection with either of the Company or the
Trust, any development, change or effect that is materially adverse to the
business, properties, assets, net worth, condition (financial or other), results
of operations or prospects of either of the Company or the Trust.
(e) The Offerors each have the full legal right, power and authority
to enter into this Agreement and the various agreements referenced herein, and
to consummate the transactions provided for herein. This Agreement has been
duly authorized, executed and delivered by the Offerors and, assuming it is a
binding agreement of yours, constitutes a legal, valid and binding agreement of
the Offerors enforceable against the Offerors in accordance with its terms
(except as such enforceability may be limited by the Permitted Exceptions, as
hereinafter defined). None of the Offerors' execution or delivery of this
Agreement, their performance hereunder, their consummation of the transactions
contemplated herein or their application of the net proceeds of the offering in
the manner set forth under the caption "Use of Proceeds" conflicts or will
conflict with or results or will result in any breach or violation of any of the
terms or provisions of, or constitutes or will constitute a default under,
causes or will cause (or permits or will permit) the maturation or acceleration
of any liability or obligation or the termination of any right under, or result
in the creation or imposition of any lien, charge, or encumbrance upon, any
property or assets of the Offerors or the Subsidiaries pursuant to the terms of
(i) the certificate or articles of incorporation or
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bylaws of Glacier or any of the Subsidiaries, (ii) the Trust Agreement, (iii)
the Guarantee Agreement, (iv) the Indenture, (v) any indenture, mortgage, deed
of trust, voting trust agreement, stockholders' agreement, note agreement or
other agreement or instrument to which the Offerors and the Subsidiaries are a
party or by which any of them are or may be bound or to which any of their
respective property is or may be subject or (vi) any statute, judgment, decree,
order, rule or regulation applicable to the Offerors and the Subsidiaries of any
government, arbitrator, court, regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, having jurisdiction over the
Offerors and the Subsidiaries, or any of their respective activities or
properties.
(f) The Company has the duly authorized and validly issued outstanding
capitalization set forth under the caption "Capitalization" in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and will have the adjusted capitalization set forth therein at the
Closing Time, based on the assumptions set forth therein. The outstanding shares
of common stock of Glacier have been duly authorized and validly issued by
Glacier and are fully paid and nonassessable. Further, all the outstanding
shares of capital stock of the Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and, are owned directly by
Glacier, free and clear of any lien, encumbrance, security interest, claim or
other restriction whatsoever. Except as created hereby or referred to in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there are no outstanding options, warrants, rights or
other arrangements requiring Glacier at any time to issue any capital stock of
Glacier. No holders of outstanding shares of capital stock of Glacier are
entitled as such to any preemptive or other rights to subscribe for any of the
Trust Preferred Securities, the Debentures or the Common Securities (as
hereinafter defined), and neither the filing of the Registration Statement nor
the offering or sale of the Trust Preferred Securities 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 securities of Glacier.
(g) The consolidated financial statements of the Company, and the
related notes thereto, included, by incorporation or otherwise, in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) present fairly the
consolidated financial position of the Company, as of the respective dates of
such financial statements and schedules, and the consolidated results of
operations, cash flows and stockholders' equity and the other information
purported to be shown therein of the Company for the respective periods covered
thereby. Such statements and related notes have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
(except as noted therein) as certified by the independent accountants named in
subsection (h) below. The Registration Statement includes all of the financial
statements and schedules required under the Act and the Rules and Regulations to
be included in the Registration Statement. The selected and summary financial
data set forth in the Registration Statement and the Prospectus (or such
Preliminary Prospectus) under the captions "Summary Consolidated Financial and
Other Information," "Selected Consolidated Financial and Other Information,"
"Capitalization," "Glacier Water Services, Inc. Income Statement by Quarter,"
"Management's Discussion and Analysis of Financial Condition and Results of
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Operations," and "Business" present fairly the information set forth therein on
the basis stated in the Registration Statement. The pro forma financial
information included in the Registration Statement and the Prospectus (or such
Preliminary Prospectus) complies as to form in all material respects with the
applicable requirements of Article 11 of Regulation S-X and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements.
(h) Xxxxxx Xxxxxxxx LLP and Deloitte & Touche LLP, who have expressed
their opinion on those of such financial statements and schedules which are or
have been audited by them, are independent accountants as required by the Act
and the Rules and Regulations.
(i) Each of the Administrative Trustees (as hereinafter defined) of
the Trust is an employee of the Company and has been duly authorized by the
Company to execute and deliver the Trust Agreement. The Trust Agreement has
been duly authorized, and will be duly executed and delivered at the Closing
Time by Glacier, as Depositor, and Xxxxx X. Xxxxx, an individual, Xxxxx X.
Xxxxxx, an individual, and Xxxxxx X. Xxxxxx, an individual (the foregoing
individuals collectively are referred to herein as the "Administrative
Trustees") and, assuming due authorization, execution and delivery of the Trust
Agreement by the Property Trustee and the Delaware Trustee, constitutes a valid
and binding obligation of Glacier and the Administrative Trustees enforceable
against each of them in accordance with its terms, except: (i) as limited by the
effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors and court decisions with respect
thereto; (ii) as limited by the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought; and
(iii) as limited by the unenforceability under certain circumstances under law
or court decisions of provisions providing for the indemnification or
contribution to a party with respect to a liability where such indemnification
or contribution is contrary to public policy (collectively, the "Permitted
Exceptions"). The Trust Agreement conforms in all material respects to the
description thereof and all statements relating thereto in the Prospectus, and
has been duly qualified under the Trust Indenture Act.
(j) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the laws of the State of
Delaware with the power and authority (trust and other) to own its property and
conduct its business as described in the Registration Statement and Prospectus,
to issue and sell its common securities, having a Liquidation Amount of $25 per
share (the "Common Securities") to be issued under the Trust Agreement to
Glacier as contemplated by this Agreement, to issue the Trust Preferred
Securities as contemplated by this Agreement, to enter into and perform its
obligations under this Agreement and to consummate the transactions herein
contemplated; the Trust is a consolidated subsidiary of the Company and has no
subsidiaries of its own, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or the
ownership of its property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a Material
Adverse Effect on the Trust; the Trust has conducted and will conduct no
business other than the transactions contemplated by this Agreement and
described in the Prospectus; the Trust is not a party
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to or bound by any agreement or instrument other than this Agreement, the Trust
Agreement and the agreements and instruments contemplated by the Trust Agreement
and described in the Prospectus; the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this Agreement
and the Trust Agreement and that are described in the Prospectus; the Trust is
not a party to or subject to any action, suit or proceeding of any nature; the
Trust is not, and at the Closing Time will not be, to the knowledge of the
Offerors, classified as an association taxable as a corporation for United
States federal income tax purposes; and the Trust is, and at the Closing Time
will be, treated as a consolidated subsidiary of Glacier pursuant to generally
accepted accounting principles.
(k) All corporate and trust action required to be taken by the
Offerors for the authorization, issuance, sale and delivery of the Trust
Preferred Securities has been validly and sufficiently taken. At the Closing
Time, after payment therefor in accordance with the terms of this Agreement, (i)
the Trust Preferred Securities to be sold by the Trust hereunder will be validly
issued, fully paid and nonassessable undivided beneficial assets of the Trust
and will be entitled to the benefits of the Trust Agreement, and (ii) good and
marketable title to the Trust Preferred Securities will pass to the Underwriters
at the Closing Time free and clear of any lien, encumbrance, security interest,
claim or other restriction whatsoever. Except as created hereby or referred to
in the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there are no outstanding options, warrants, rights or
other arrangements requiring the Trust at any time to issue any capital stock of
the Trust. No person or entity is entitled as such to any preemptive or other
rights to subscribe for any of the Trust Preferred Securities and neither the
filing of the Registration Statement nor the offering or sale of the Trust
Preferred Securities 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 securities of the Trust. The Trust Preferred Securities
conform in all material respects to the description thereof in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and the Trust Agreement.
(l) Subject to the terms of the Trust Agreement, 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. Except as disclosed in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), there are no outstanding
rights, options or warrants to acquire any securities of the Trust, and there
are no outstanding securities convertible into or exchangeable for any such
securities and no restrictions upon the voting or transfer of any equity
securities of the Trust pursuant to Glacier's certificate or articles of
incorporation or bylaws, the Trust Agreement or any agreement or other
instrument to which either Offeror is a party or by which either Offeror is
bound.
(m) The Common Securities have been duly authorized by the Trust
pursuant to the Trust Agreement and, when issued and delivered by the Trust to
Glacier 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
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assets of the Trust and will conform to all statements relating thereto
contained in the Prospectus (or if the Prospectus is not in existence, the most
recent Preliminary Prospectus); the issuance and sale of the Common Securities
to Glacier is not subject to preemptive or other similar rights.
(n) The Indenture has been duly authorized by Glacier and will be duly
executed and delivered by Glacier at the Closing Time, and, assuming due
authorization, execution and delivery of the Indenture by and Indenture Trustee,
will constitute a valid and binding agreement of Glacier, enforceable against
Glacier in accordance with its terms, subject, as to enforcement of remedies, to
the Permitted Exceptions. The Indenture conforms in all material respects to
the description thereof contained in the Prospectus (or if the Prospectus is not
in existence, the most recent Preliminary Prospectus); and the Indenture has
been duly qualified under the Trust Indenture Act.
(o) The Debentures have been duly authorized by Glacier and will be
duly executed and delivered by Glacier at the Closing Time, and when
authenticated in the manner provided for in the Indenture and delivered against
payment therefor as described in the Prospectus, the Debentures will constitute
valid and binding obligations of Glacier, enforceable against Glacier in
accordance with their terms, except to the extent that enforcement thereof may
be limited by the Permitted Exceptions, will be in the form contemplated by, and
subject to the Permitted Exceptions, will be entitled to the benefits of, the
Indenture (as hereinafter defined) and will conform in all material respects to
the description thereof in the Prospectus (or if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(p) The Guarantee Agreement has been duly authorized by Glacier and
will be duly executed and delivered by Glacier at the Closing Time, and,
assuming due authorization, execution and delivery of the Guarantee Agreement by
the Guarantee Trustee, will constitute a valid and binding obligation of Glacier
enforceable against Glacier in accordance with its terms, except to the extent
that enforcement thereof may be limited by the Permitted Exceptions, and the
Guarantee will conform in all material respects to the description thereof
contained in the Prospectus (or if the Prospectus is not in existence, the most
recent Preliminary Prospectus); and the trust pursuant to the Guarantee has been
duly qualified under the Trust Indenture Act.
(q) Glacier's obligations under the Guarantee Agreement are
subordinate and junior in right of payment to all Senior Debt and Subordinated
Debt of Glacier (as defined in the Indenture), subject, as to enforcement of
remedies, to the Permitted Exceptions.
(r) The Agreement as to Expenses and Liabilities between the Offerors
dated as of January __, 1998 (the "Expense Agreement") has been duly and validly
authorized by Glacier and the Trust, and will be duly executed and delivered by
Glacier and the Trust at the Closing Time and will constitute a valid and
legally binding obligation of Glacier and the Trust and conforms in all material
respects to the description thereof contained in the Prospectus (or if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
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(s) The Company and the Trust each have filed all necessary federal,
state and local income, franchise and other material tax returns and have paid
all taxes shown as due thereunder, and each of the Offerors has no knowledge of
any tax deficiency which might be assessed against the Company or the Trust
which, if so assessed, may have a Material Adverse Effect.
(t) The Company maintains insurance of the types and in amounts which
it reasonably believes to be adequate for its businesses, all of which insurance
is in full force and effect.
(u) Except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there is no pending
action, suit, proceeding or investigation or, to the Offerors' best knowledge,
threatened action, suit, proceeding or investigation before or by any court,
regulatory body or administrative agency or any other governmental agency or
body, domestic or foreign, which (i) questions the validity of the capital stock
of the Offerors or this Agreement or of any action taken or to be taken by the
Offerors pursuant to or in connection with this Agreement, (ii) is required to
be disclosed in the Registration Statement which is not so disclosed (and such
proceedings, if any, as are summarized in the Registration Statement or
incorporated therein by reference, are accurately summarized in all material
respects), or (iii) may have a Material Adverse Effect on the Company or the
Trust.
(v) Subsequent to the most recent dates as of which information is
given in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), and except as expressly contemplated therein,
neither the Company nor the Trust has incurred, other than in the ordinary
course of their respective businesses, any material liabilities or obligations,
direct or contingent, purchased any of their outstanding capital stock (other
than pursuant to the Company's publicly announced stock repurchase program
described in the Prospectus), paid or declared any dividends or other
distributions on their capital stock or entered into any material transactions
not in the ordinary course of business, and there has been no material change in
capital stock or debt or a material adverse change in the business, properties,
assets, net worth, condition (financial or other), or results of operations or
prospects of the Company or the Trust. Neither Glacier nor any of the
Subsidiaries nor the Trust (nor the manner in which any of them conducts their
business) is in breach or violation of, or in default under, any term or
provision of (i) its certificate or articles of incorporation or bylaws, (ii)
the Trust Agreement, (iii) the Guarantee Agreement, (iv) any indenture,
mortgage, deed of trust, lease, franchise, license, permit, voting trust
agreement, stockholders' agreement, note agreement or other agreement or
instrument to which it is a party or by which it is or may be bound or to which
any of its property is or may be subject, or any indebtedness, the effect of
which breach or default singly or in the aggregate may have a Material Adverse
Effect on the Company or the Trust, and there does not exist any state of facts
which constitutes an event of default (as defined in such documents) on the part
of Glacier, any of the Subsidiaries or the Trust which, with notice or lapse of
time or both, would constitute such an event of default, or (v) any statute,
judgment, decree, order, rule or regulation applicable to the Company or the
Trust or any arbitrator, court regulatory body, administrative agency or any
other governmental agency or body,
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domestic or foreign, having jurisdiction over the Company or the Trust or any of
their respective activities or properties, the effect of which breach or default
singly or in the aggregate may have a Material Adverse Effect on the Company or
the Trust.
(w) All executed agreements or copies of executed agreements filed or
incorporated by reference as exhibits to the Registration Statement, to which
Glacier, the Subsidiaries or the Trust is a party or by which any of them is or
may be bound or to which any of their assets, properties or businesses are or
may be subject have been duly and validly authorized, executed and delivered by
Glacier, the Subsidiaries or the Trust, as the case may be, and constitute the
legal, valid and binding agreements of each of Glacier, the Subsidiaries or the
Trust, as the case may be, enforceable against each of them in accordance with
their respective terms, subject, as to enforceability or remedy, to the
Permitted Exceptions. The descriptions in the Registration Statement of
contracts and other documents are accurate in all material respects and fairly
present the information required to be stated with respect thereto by the Act
and the Rules and Regulations, and there are no contracts or other documents
which are required by the Act or the Rules and Regulations to be described in
the Registration Statement or filed as exhibits to the Registration Statement
which are not described or filed as required or incorporated therein by
reference, and the executed exhibits which have been filed are complete and
correct copies of the documents of which they purport to be copies, and the
unexecuted exhibits which have been filed are reasonably correct and accurate
forms of such documents.
(x) To the knowledge of the Offerors, no labor disturbance by the
employees of the Company exists or is imminent which may have a Material Adverse
Effect on the Company.
(y) No consent, approval, authorization or order of or filing with any
court, regulatory body, administrative agency or any other governmental agency
or body, domestic or foreign, is required for the performance of this Agreement
or the consummation of the transactions contemplated hereby, except such as have
been or may be obtained under the Act, the Trust Indenture Act or may be
required under state securities or blue sky laws in connection with the
Underwriters' purchase and distribution of the Trust Preferred Securities.
(z) Each of the Company and the Trust has good and marketable title
to, or valid and enforceable leasehold interests in, all properties and assets
owned or leased by it, free and clear of all liens, encumbrances, security
interests, claims, restrictions, equities, claims and defects, except (i) such
as are described in the Registration Statement and Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), or such
as do not have a Material Adverse Effect on the value of any of such properties
or assets taken as a whole and do not materially interfere with the use made and
proposed to be made of any of such properties or assets, and (ii) liens for
taxes not yet due and payable as to which appropriate reserves have been
established and reflected in the financial statements included or incorporated
by reference in the Registration Statement. The Company and the Trust own or
lease all such properties as are necessary to their respective operations as now
conducted, and as proposed to be conducted as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent
10
Preliminary Prospectus); and the properties and businesses of the Company or the
Trust conform in all material respects to the descriptions thereof contained in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All the material leases and subleases of the Company
and under which the Company holds properties or assets as lessee or sublessee,
constitute valid leasehold interests of the Company, free and clear of any lien,
encumbrance, security interest, restriction, equity, claim or defect, are in
full force and effect, and the Company is not in default in respect of any of
the material terms or provisions of any such material leases or subleases, and
the Company has not had notice of any claim which has been asserted by anyone
adverse to the Company's rights as lessee or sublessee under either a material
lease or sublease, or affecting or questioning of the Company's rights to the
continued possession of the leased or subleased premises under any such material
lease or sublease, in all cases only which may have a Material Adverse Effect on
the Company.
(aa) Each of the Company and the Trust owns, or is licensed or
otherwise has sufficient right to use, the proprietary knowledge, inventions,
patents, trademarks, service marks, trade names, logo marks and copyrights used
in or necessary for the conduct of each of their respective businesses
(collectively "Rights") as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus). Except as disclosed
in the Prospectus, no claims have been asserted against either the Company or
the Trust by any person with respect to the use of any such Rights or
challenging or questioning the validity or effectiveness of any such Rights. The
use, in connection with the business and operations of the Company or the Trust,
of such Rights does not, to either of the Offerors' best knowledge, infringe on
the rights of any person, other than as disclosed in the Prospectus.
(ab) Each of the Company and the Trust holds all franchises, licenses,
permits, approvals, certificates and other authorizations from federal, state
and other governmental or regulatory authorities necessary to the ownership,
leasing and operation of its properties or required for the present conduct of
its respective businesses, and such franchises, licenses, permits approvals,
certificates and other governmental authorizations are in full force and effect
and each of the Company and the Trust is in compliance therewith in all material
respects except where the failure so to obtain, maintain or comply with would
not have a Material Adverse Effect on the Company or the Trust.
(ac) No Subsidiary is currently prohibited, directly or indirectly,
from paying any dividends to Glacier, from making any other distribution on any
such Subsidiary's capital stock, from repaying to Glacier any loans or advances
to such Subsidiary from Glacier or from transferring any of such Subsidiary's
property or assets to Glacier or any other Subsidiary, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(ad) To the knowledge of the Offerors, neither the Company nor the
Trust has violated any applicable environmental, safety, health or similar law
applicable to the business of either the Company or the Trust, nor any federal
or state law relating to discrimination in the hiring,
11
promotion, or pay of employees, nor any applicable federal or state wages and
hours law, nor any provisions of ERISA or the rules and regulations promulgated
thereunder, the consequences of which violation may have a Material Adverse
Effect on the Company or the Trust.
(ae) Neither the Company nor the Trust has distributed and will not
distribute prior to the Closing Time any offering material in connection with
the offering and sale of the Trust Preferred Securities other than any
Preliminary Prospectus, the Prospectus, the Registration Statement and the other
materials permitted by the Act.
(af) Neither the Company nor the Trust has at any time during the last
five years (i) made any unlawful contribution to any candidate for foreign
office, or failed to disclose fully any contribution in violation of law, or
(ii) 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.
(ag) Neither the Company nor the Trust nor any of their officers,
directors, trustees, 5% or more stockholders or affiliates (within the meaning
of the Rules and Regulations) has taken, directly or indirectly, any action
designed to stabilize or manipulate the price of any security of either Glacier
or the Trust which has constituted or which might in the future reasonably be
expected to cause or result in stabilization or manipulation of the price of any
security of Glacier or the Trust to facilitate the sale or resale of the Trust
Preferred Securities or otherwise.
(ah) There are no contracts, agreements or understandings between the
Company or the Trust or each of them individually, and any person granting such
person the right to require either Glacier or the Trust to file a registration
statement under the Act with respect to any securities of Glacier or the Trust
owned or to be owned by such person or to require Glacier or the Trust to
include such securities under the Registration Statement (other than those that
have been disclosed in the Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), that have not been waived with respect
to the Registration Statement.
(ai) Neither the Company nor the Trust is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(aj) The Offerors have received approval to have the Trust Preferred
Securities quoted on the American Stock Exchange (the "AMEX"), subject to
official notice of issuance, and the Offerors know of no reason or set of facts
which is likely to adversely affect such approval.
3. Purchase, Sale and Delivery of the Securities; Closing.
------------------------------------------------------
On the basis of the foregoing representations and warranties and
subject to the terms and conditions herein set forth, the Offerors agree that
the Trust will issue and sell to each Underwriter, severally and not jointly,
and each Underwriter agrees, severally and not jointly, to
12
purchase from the Trust, at a purchase price of $25 per share (the "Purchase
Price"), the respective number of Trust Preferred Securities set forth in
Schedule I opposite the name of such Underwriter.
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
Glacier of the Common Securities) will be used to purchase the Debentures,
Glacier hereby agrees to pay in same day funds at the Closing Time directly to
the Underwriters, a commission of _______ per Trust Preferred Security purchased
by the Underwriters and delivered by the Trust pursuant to this Agreement (the
"Underwriting Commission").
Payment of the Purchase Price and the Underwriting Commission for the
Trust Preferred Securities shall be made at the offices of Milbank, Tweed,
Xxxxxx & XxXxxx, Los Angeles, California, or at such other place as shall be
agreed upon by the Representatives and the Offerors, at 7:00 a.m., California
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) business day after the date hereof, or such other time not
later than 10 business days after such date as shall be agreed upon by the
Representatives and the Offerors (such time and date of payment and delivery is
herein called the "Closing Time"). Payment shall be made to the Trust by wire
transfer of same day funds to the Trust or its order to an account designated by
the Trust, against delivery to the Representatives for the respective accounts
of the Underwriters of certificates for the Trust Preferred Securities to be
purchased by them.
Unless otherwise agreed, the Trust Preferred Securities to be
purchased by each Underwriter in book-entry form and in authorized denominations
and registered in the name of the nominee of The Depository Trust Company
("DTC"), shall be delivered by or on behalf of the Offerors through the
facilities of DTC for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
same day funds to the Trust or its order to an account designated by the Trust
at the offices of Milbank, Tweed, Xxxxxx & XxXxxx, Los Angeles, California, or
at such other place as shall be agreed upon by the Representatives and the
Offerors, at the Closing Time. The place of the closing and the Closing Time
may be varied by agreement among the Representatives and the Offerors. Delivery
of the Trust Preferred Securities may be made by credit through full fast
transfer to the accounts at DTC designated by the Underwriters.
Time shall be of the essence, and delivery of the Trust Preferred
Securities at the time and place specified pursuant to this Agreement is a
further condition of the obligations of each Underwriter hereunder.
The Offerors hereby acknowledge that the wire transfer by or on behalf
of the Underwriters of the purchase price for any Trust Preferred Securities
does not constitute closing of a purchase and sale of the Trust Preferred
Securities. Only execution and delivery of a receipt (by facsimile or
otherwise) for the Trust Preferred Securities by the Representatives on behalf
of the Underwriters indicates completion of the closing of a purchase of the
Trust Preferred Securities from the Offerors. Furthermore, in the event that
funds are wired to the Offerors on behalf of the
13
Underwriters prior to the completion of the closing of a purchase of Trust
Preferred Securities, the Offerors hereby acknowledge that until the
Representatives execute and deliver a receipt for the Trust Preferred
Securities, by facsimile or otherwise, the Offerors will not by entitled to the
wired funds and shall return the wired funds to the Representatives as soon as
practicable (by wire transfer of same-day funds) upon demand. In the event that
the closing of a purchase of Trust Preferred Securities is not completed and the
wired funds are not returned by the Offerors to the Representatives on the same
day the wired funds were received by the Offerors, the Offerors jointly and
severally agree to pay to the Representatives in respect of each day the wired
funds are not returned by it, in same-day funds, interest at the Prime Rate as
stated in the Wall Street Journal on the date hereof on the amount of such wired
funds.
4. Public Offering of the Shares.
-----------------------------
It is understood that the Underwriters propose to make a public
offering of the Trust Preferred Securities at the price and upon the other terms
set forth in the Prospectus.
5. Covenants of the Offerors.
-------------------------
The Offerors jointly and severally covenant and agree with each of the
Underwriters that:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as practicable.
If required, the Offerors will file the Prospectus and any amendment or
supplement thereto with the Commission in the manner and within the time period
required by Rule 424(b) under the Act. During any time when a prospectus
relating to the Trust Preferred Securities is required to be delivered under the
Act, the Offerors (i) will comply with all requirements imposed upon it by the
Act and the Rules and Regulations to the extent necessary to permit the
continuance of sales of or dealings in the Trust Preferred Securities in
accordance with the provisions hereof and of the Prospectus, as then amended or
supplemented, and (ii) will not file with the Commission the Prospectus or the
amendment referred to in Section 2(a) hereof, any amendment or supplement to
such Prospectus or any amendment to the Registration Statement of which the
Representatives shall not previously have been advised and furnished with a copy
a reasonable period of time prior to the proposed filing and as to which filing
the Representatives shall not have given their consent.
(b) As soon as the Offerors are advised or obtain knowledge thereof,
the, Offerors will advise the Representatives or their counsel (i) when the
Registration Statement, as amended, has become effective; if the provisions of
Rule 430A promulgated under the Act will be relied upon, when the Prospectus has
been filed in accordance with said Rule 430A and when any post-effective
amendment to the Registration Statement becomes effective; or (ii) of any
request made by the Commission for amending the Registration Statement, for
supplementing any Preliminary Prospectus or the Prospectus or for additional
information, or (iii) of the issuance by the Commission
14
of any stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or the institution or threat of any investigation or
proceeding for that purpose, and will use its best efforts to prevent the
issuance of any such order and, if issued, to obtain the lifting thereof as soon
as possible.
(c) The Offerors will (i) use their best efforts to arrange for the
qualification of the Trust Preferred Securities, the Debentures and the
Guarantee for offer and sale under the state securities or blue sky laws of such
jurisdictions as the Representatives may designate, (ii) continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Trust Preferred Securities, and (iii) make such
applications, file such documents and furnish such information as may be
required for the purposes set forth in clauses (i) and (ii); provided, however,
-------- -------
that the Offerors shall not be required to qualify as a foreign corporation or
file a general or unlimited consent to service of process in any such
jurisdiction.
(d) The Offerors consent to the use of the Prospectus (and any
amendment or supplement thereto) by the Underwriters and all dealers to whom the
Trust Preferred Securities may be sold, if any such Prospectus is used, in
connection with the offering or sale of the Trust Preferred Securities and for
such period of time thereafter as the Prospectus is required by law to be
delivered in connection therewith. If, at any time when a Prospectus relating to
the Trust Preferred Securities is required to be delivered under the Act, any
event occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading,
or if it becomes necessary at any time to amend or supplement the Prospectus to
comply with the Act or the Rules and Regulations, the Offerors promptly will so
notify the Representatives and, subject to Section 5(a) hereof and at the
Offerors, expense, will prepare and file with the Commission an amendment to the
Registration Statement or an amendment or supplement to the Prospectus which
will correct such statement or omission or affect such compliance, each such
amendment or supplement to be reasonably satisfactory to counsel to the
Underwriters.
(e) As soon as practicable, but in any event not later than 45 days
after the end of the 12-month period beginning on the day after the end of the
fiscal quarter of the Offerors during which the effective date of the
Registration Statement occurs (90 days in the event that the end of such fiscal
quarter is the end of the Offerors' fiscal year), the Offerors will make
generally available to its security holders, in the manner specified in Rule
158(b) of the Rules and Regulations, and to the Representatives, an earnings
statement which will be in the detail required by, and will otherwise comply
with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules
and Regulations, which statement need not be audited unless required by the Act
or the Rules and Regulations, covering a period of at least 12 consecutive
months after the effective date of the Registration Statement.
15
(f) The Offerors will maintain a Transfer Agent and, if necessary
under the jurisdiction of incorporation of the Offerors, a Registrar (which may
be the same entity as the Transfer Agent) for the Trust Preferred Securities.
(g) The Offerors will furnish, without charge, to the Representatives
or on the Representatives' order, at such place as the Representatives may
designate, copies of the Preliminary Prospectus, the Registration Statement and
any pre-effective or post-effective amendments thereto (two of which copies will
be signed and will include all financial statements and exhibits) and the
Prospectus, and all amendments and supplements thereto, in each case as soon as
available and in such quantities as the Representatives may reasonably request.
(h) The Offerors will not, directly or indirectly, without the prior
written consent of Sutro & Co. Incorporated, issue, offer, sell, grant any
option to purchase or otherwise dispose (or announce any issuance, offer, sale,
grant of any option to purchase or other disposition) of any shares of the Trust
Preferred Securities or any securities convertible into, or exchangeable or
exercisable for, shares of Trust Preferred Securities or Debentures or any debt
securities substantially similar to the Debentures or equity securities
substantially similar to the Trust Preferred Securities for a period of 180 days
after the date hereof, except pursuant to this Agreement, or as contemplated by
the Prospectus.
(i) The Offerors will cause the Trust Preferred Securities to be duly
included for listing on the AMEX prior to the Closing Time.
(j) Neither the Offerors nor any of their officers or directors, 5% or
more stockholders nor affiliates of any of them (within the meaning of the Rules
and Regulations) will take, directly or indirectly, any action designed to
stabilize or manipulate the price of any security of the Offerors or which has
constituted or might in the future reasonably be expected to cause or result in
the stabilization or manipulation of the price of any security of the Offerors
to facilitate the sale or resale of the Trust Preferred Securities or otherwise.
(k) Each of the Offerors will apply the net proceeds of the offering
received by it in the manner set forth under the caption "Use of Proceeds" in
the Prospectus.
(l) The Offerors will timely file all such reports, forms or other
documents as may be required from time to time, under the Act, the Rules and
Regulations, the Exchange Act, and the Exchange Act Regulations, and all such
reports, forms and documents filed will comply as to form and substance with the
applicable requirements under the Act, the Rules and Regulations, the Exchange
Act and the Exchange Act Rules and Regulations.
6. Expenses.
--------
(a) Regardless of whether the transactions contemplated in this
Agreement are consummated, and regardless of whether for any reason this
Agreement is terminated, Glacier will
16
pay, and hereby agrees to indemnify each Underwriter against, all fees and
expenses incident to the performance of the obligations of the Offerors under
this Agreement, including, but not limited to, (i) fees and expenses of
accountants and counsel for the Offerors, (ii) all costs and expenses incurred
in connection with the preparation, duplication, printing, filing, delivery and
shipping of copies of the Registration Statement and any pre-effective or post-
effective amendments thereto, any Preliminary Prospectus and the Prospectus and
any amendments or supplements thereto (including postage costs related to the
delivery by the Underwriters of any Preliminary Prospectus or Prospectus, or any
amendment or supplement thereto), this Agreement, the Trust Agreement, the
Indenture and the Guarantee Agreement and all other documents in connection with
the transactions contemplated herein, including the cost of all copies thereof,
(iii) fees and expenses relating to qualification of the Trust Preferred
Securities under state securities or blue sky laws, including the cost of
preparing and mailing the preliminary and final blue sky memoranda and filing
fees and reasonable disbursements and fees of counsel and other related
expenses, if any, in connection therewith, (iv) filing fees of the Commission
and the National Association of Securities Dealers, Inc. ("NASD") relating to
the Trust Preferred Securities, the Debentures and the Guarantee, (v) any fees
and expenses in connection with the listing of the Trust Preferred Securities on
the AMEX, (vi) costs and expenses incident to the preparation, issuance and
delivery to the Underwriters of any certificates evidencing the Trust Preferred
Securities, including transfer agent's and registrar's fees and any applicable
transfer taxes incurred in connection with the delivery to the Underwriters of
the Trust Preferred Securities to be sold by the Offerors pursuant to this
Agreement, (vii) costs and expenses of advertising relating to the offering of
the Trust Preferred Securities (other than as shall have been specifically
approved by the Representatives to be paid for by the Underwriters), (viii) the
fees and expenses of the Indenture Trustee, including the fees and disbursements
of counsel for the Indenture Trustee in connection with the Indenture and the
Debentures, (ix) the fees and expenses of the Property Trustee, the Delaware
Trustee and the Guarantee Trustee, including the fees and disbursements of
counsel for the Delaware Trustee in connection with the Trust Agreement, (x) the
costs and charges of any transfer agent or registrar, and (xi) the cost of
qualifying the Trust Preferred Securities with DTC.
(b) If the purchase of the Trust Preferred Securities as herein
contemplated is not consummated for any reason other than the Underwriters'
default in performing any material obligation of the Underwriters under this
Agreement, Glacier shall reimburse the several Underwriters for their reasonable
out-of-pocket expenses (including reasonable counsel fees and disbursements) in
connection with any investigation made by them, and any preparation made by them
in respect of marketing of the Trust Preferred Securities or in contemplation of
the performance by them of their obligations hereunder.
7. Conditions of the Underwriters' Obligations.
-------------------------------------------
The obligation of each Underwriter to purchase and pay for the Trust
Preferred Securities set forth opposite the name of such Underwriter in Schedule
I is subject to the continuing accuracy of the representations and warranties of
the Offerors herein as of the date hereof and at the Closing Time as if they had
been made at the Closing Time; the accuracy at the Closing Time of the
17
statements of officers or trustees of the Offerors made pursuant to the
provisions hereof; the performance by the Offerors at the Closing Time of its
covenants and agreements hereunder; and the following additional conditions:
(a) If the Offerors have elected to rely on Rule 430A under the Act,
the Registration Statement shall have been declared effective not later than
5:00 p.m. (or in the case of a registration statement filed pursuant to Rule
462(b) under the Act relating to the Trust Preferred Securities, not later than
10:00 p.m.), Washington D.C. time on the date of this Agreement, or at such
later time as shall have been consented to by you, and the Prospectus
(containing the information omitted pursuant to Rule 430A) shall have been filed
with the Commission not later than the Commission's close of business on the
second business day following the date hereof or such later time and date to
which the Representatives shall have consented; if the Offerors do not elect to
rely on Rule 430A, the Registration Statement shall have been declared effective
not later than 10:00 a.m., California time, on the date hereof or such later
time and date to which the Representatives shall have consented; if required, in
the case of any changes in or amendments or supplements to the Prospectus in
addition to those contemplated above, the Offerors shall have filed such
Prospectus as amended or supplemented with the Commission in the manner and
within the time period required by Rule 424(b) under the Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Offerors or the
Representatives, shall be contemplated by the Commission; and the Offerors shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall not have advised the Offerors that the
Registration Statement, or any amendment thereto, contains an untrue statement
of fact which, in the Representatives' opinion, is material, or omits to state a
fact which, in the Representatives' opinion, is material and is required to be
stated therein or is necessary to make the statements therein not misleading, or
that the Prospectus, or any supplement thereto, contains an untrue statement of
fact which, in the Representatives' opinion, is material, or omits to state a
fact which, in the Representatives' opinion, is material and is required to be
stated therein or is necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) At or prior to the Closing Time, the Representatives shall have
received from Manatt, Xxxxxx & Xxxxxxxx, LLP, counsel to the Underwriters, such
opinion or opinions with respect to the issuance and sale of the Trust Preferred
Securities, the Registration Statement and the Prospectus and such other related
matters as the Representatives reasonably may request, and such counsel shall
have received such documents and other information as they request to enable
them to pass upon such matters.
(d) At the Closing Time, the Representatives shall have received the
favorable opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Company,
dated as of the Closing Time, to the effect that:
18
(i) Each of Glacier and the Subsidiaries has been duly incorporated
and is validly existing as a corporation or limited liability company in good
standing under the laws of its jurisdiction of incorporation. To the best of
such counsel's knowledge, each of Glacier and the Subsidiaries is duly qualified
to do business as a foreign corporation and is in good standing in all other
jurisdictions where it owns or leases real property, except where the failure to
so qualify would not have a Material Adverse Effect on the Company.
(ii) The Trust has no subsidiaries of its own, and is duly qualified
to transact business in and is in good standing in Delaware.
(iii) Each of Glacier, the Subsidiaries and the Trust has full
corporate power and corporate authority, or full trust power and trust
authority, as the case may be, to own and lease its assets and properties and
conduct its business as now being conducted and as described in the Registration
Statement. To the best of such counsel's knowledge, each of Glacier, the
Subsidiaries and the Trust has all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to carry on its business as
described in the Registration Statement, except where the failure to have such
governmental licenses, permits, consents, orders, approvals, and other
authorizations would not have a Material Adverse Effect on the Company or the
Trust.
(iv) The authorized, and, to the best of such counsel's knowledge,
issued and outstanding capital stock of the Company is as set forth under the
caption "Capitalization" in the Prospectus.
(v) Glacier owns of record and, to the best of such counsel's
knowledge, owns beneficially all of the authorized, issued and outstanding
Common Securities of the Trust and such Common Securities are owned by Glacier
free and clear of all perfected, and to the best of such counsel's knowledge
other, liens, encumbrances, claims, security interests or other defects of
title whatsoever, except for liens, encumbrances, claims or security interests
described in the Prospectus.
(vi) Glacier owns of record and, to the best of such counsel's
knowledge owns beneficially, all of the authorized, issued and outstanding
capital securities of each of the Subsidiaries and such capital securities are
owned by Glacier free and clear of all perfected, and to such counsel's best
knowledge other, liens, encumbrances, claims, security interests or other
defects of title whatsoever, except for liens, encumbrances, claims or security
interests described in the Prospectus.
(vii) Glacier has the corporate power and corporate authority to sell
and deliver the Debentures to the Trust in exchange for the proceeds from the
sale of the Trust Preferred Securities. The issuance, sale and delivery of the
Debentures in accordance with the terms and conditions of this Agreement and the
Indenture have been duly authorized by all necessary actions of Glacier.
19
(viii) The Trust Preferred Securities have been approved for listing
on the AMEX, subject to official notice of issuance.
(ix) Except as disclosed in or specifically contemplated by the
Prospectus, to the best of such counsel's knowledge, there are no outstanding
options, warrants or other rights issued by the Trust calling for the issuance
of, and no commitments, plans or arrangements of the Trust to issue, any shares
of capital stock of the Trust or any security convertible into or exchangeable
for capital stock of the Trust.
(x) The Registration Statement has become effective under the Act, and
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or preventing the use of the
Prospectus has been issued and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission; and any required
filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) of
the Rules and Regulations has been made in the manner and within the time period
required by such Rule 424(b).
(xi) The Registration Statement and the Prospectus comply as to form
in all material respects with the requirements of the Act and the Rules and
Regulations (it being understood, however, that such counsel need express no
opinion with respect to the financial statements, financial statement schedules
and other financial and statistical data included in the Registration Statement
and the Prospectus, or the Statements of Eligibility of the Trustee on Form T-1
filed as exhibits to the Registration Statement).
(xii) To the best of such counsel's knowledge, there are no
franchises, leases, contracts, agreements or documents of a character required
to be described in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described or filed as
required.
(xiii) To the best of such counsel's knowledge, there are no legal or
governmental actions, suits or proceedings pending or overtly threatened in
writing against the Company or the Trust which are required to be described in
the Prospectus which are not described as required.
(xiv) Glacier has the corporate power and corporate authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by each of the Offerors.
(xv) To the best of such counsel's knowledge, no approval,
authorization, order, consent, registration, filing, qualification, license or
permit of or with any person, court, regulatory, administrative or other
governmental agency or body is required to be obtained by the Offerors in
connection with the offering, issuance or sale of the Trust Preferred
Securities, the Guarantee and the Debentures by the Offerors, except (i) such as
have been obtained and are in full
20
force and effect under the Act and the Rules and Regulations and the Credit
Agreement between Glacier, GW Services, Inc. and Tokai Bank of California dated
February 14, 1994, as amended, and such as may be required under applicable blue
sky or insurance laws of any jurisdiction, and (ii) the qualification of the
Trust Agreement, the Guarantee Agreement and the Indenture under the Trust
Indenture Act.
(xvi) To the best of such counsel's knowledge, neither of the Offerors
is in breach or violation of, or default under, with or without notice or lapse
of time or both, its corporate charter, bylaws or governing document (including
without limitation, the Trust Agreement). The execution and delivery of this
Agreement by the Offerors and the consummation of the transactions therein
contemplated by the Offerors will not (i) conflict with, result in the breach or
violation of, or constitute, either by itself or upon notice or the passage of
time or both, a default under any agreement, mortgage, deed of trust, lease,
indenture or other instrument filed as or incorporated by reference as an
exhibit to the Registration Statement, except where such conflict, breach,
violation or default would not have a Material Adverse Effect on the Company or
the Trust; or (ii) violate any of the provisions of the certificate or articles
of incorporation or bylaws or governing documents, (including, without
limitation, the Trust Agreement) of the Offerors, or (iii) to such counsel's
knowledge, cause Glacier, the Subsidiaries or the Trust to violate the Delaware
General Corporation Law (the "DGCL"), any present United States Federal or
California statute, rule or regulation or franchise, license or permit
applicable to the Company, Glacier, the Subsidiaries or the Trust, or (iv) to
such counsel's knowledge, cause the Glacier, the Subsidiaries or the Trust to
violate any order, judgment or decree binding on any of them, except that no
opinion is rendered in this paragraph as to blue sky laws.
(xvii) To the best of such counsel's knowledge, no holders of
securities of the Offerors have rights, which have not been waived, to the
registration of capital stock of the Offerors or other securities, because of
the filing of the Registration Statement by the Offerors or the offering
contemplated thereby.
(xviii) Neither of the Company nor the Trust is an "investment
company" within the meaning of the Investment Company Act or a company
"controlled" by an "investment company".
(xix) No California transfer taxes are required to be paid in
connection with the sale and delivery of the Trust Preferred Securities to the
Underwriters hereunder.
(xx) Each of the Indenture, the Trust Agreement and the Guarantee
Agreement has been duly qualified under the Trust Indenture Act, has been duly
authorized, executed and delivered by Glacier and is a valid and legally binding
obligation of Glacier, enforceable in accordance with its terms, subject, as to
enforcement of remedies, to the Permitted Exceptions.
21
(xxi) The Debentures have been duly authorized, executed and
delivered by Glacier and when authenticated by the Indenture Trustee in the
manner provided for in the Indenture and delivered against payment therefore
will be entitled to the benefits of the Indenture and are legal, valid and
binding obligations of Glacier enforceable against Glacier in accordance with
their terms, subject, as to enforcement of remedies, to the Permitted
Exceptions.
(xxii) The Expense Agreement has been duly authorized, executed and
delivered by Glacier, and is a valid and legally binding obligation of Glacier
enforceable in accordance with its terms, subject, as to enforcement of
remedies, to the Permitted Exceptions.
(xxiii) The statements in the Prospectus under the captions,
"Description of the Trust Preferred Securities", "Description of Junior
Subordinated Debentures", "Description of Guarantee", "Expense Agreement" and
"Relationship Among the Trust Preferred Securities, the Junior Subordinated
Debentures and the Guarantee," insofar as such statements constitute matters of
law applicable to the Offerors or summaries of documents, fairly present the
information required to be included therein all material respects.
(xxiv) The statements set forth in the Prospectus under the captions,
"Certain Federal Income Tax Consequences" and "ERISA Considerations" constitute
a fair and accurate summary of the matters addressed therein, based upon current
law and the assumptions stated or referred to therein.
In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx may rely
(i) as to matters involving the application of laws of any jurisdiction other
than California or federal law, to the extent deemed proper and specified in
such opinion, upon the opinion of local counsel of good standing believed by
them to be reliable and who are satisfactory to counsel for the Underwriters;
and (ii) as to matters of fact, to the extent deemed proper, on the
representations and warranties of the Company and the Trust contained herein or
in the Trust Agreement, the Indenture, the Guarantee Agreement, or on
certificates of responsible officers of Glacier, the Subsidiaries, the Trust and
public officials.
In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall
additionally state that nothing has come to their attention that has caused them
to believe that the Registration Statement (except for financial statements and
schedules and other financial or statistical data included or incorporated by
reference therein, as to which counsel need make no statements), at the time it
became effective and at the Closing Time, 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 the
Prospectus (except for financial statements and schedules and other financial or
statistical data included or incorporated by reference therein, as to which
counsel need make no statement), at the date hereof or at the Closing Time,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
22
(e) At the Closing Time, the Representatives shall have received, the
favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel
to 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 Business Trust Act, 12 DEL. C.
Sections 3801 et seq. (the "Delaware Act"), with the trust power and authority
to (i) own its own property and conduct its business as described in the
Prospectus, (ii) execute and deliver, and perform its obligations under, this
Agreement, and (iii) issue and perform its obligations under the Trust Preferred
Securities.
(ii) The Trust Agreement constitutes a valid and binding obligation of
each of Glacier and the Trustees, and is enforceable against each of Glacier and
the Trustees in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Act, all necessary
trust action has been taken on the part of the Trust to duly authorize the
execution and delivery of this Agreement by the Trust and the performance of its
obligations hereunder.
(iv) The Trust Preferred Securities and Common Securities have been
duly authorized for issuance by the Trust Agreement and, when issued and
delivered in accordance with the terms of the Trust Agreement and this Agreement
and as described in the Prospectus, will be validly issued and (subject to
paragraph (v) below) fully paid and nonassessable undivided beneficial interests
in the assets of the Trust. The holders of the Trust Preferred Securities will
be entitled to the benefits of the Trust Agreement (subject to the limitations
set forth in paragraph (b) above).
(v) The holders of the Trust Preferred Securities in their capacity as
such, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the DGCL. Such
opinion may note that the holders of the Trust Preferred Securities may be
required to make payment or provide indemnity or security as set forth in the
Trust Agreement.
(vi) Under the Trust Agreement and the Delaware Act, the issuance of
the Trust Preferred Securities is not subject to preemptive rights.
(vii) The issuance and sale by the Trust of the Trust Preferred
Securities and the Common Securities, the execution, delivery and performance by
the Trust of this Agreement, and the consummation by the Trust of the
transactions contemplated by this Agreement do not (i) violate any of the
provisions of the Certificate of Trust or the Trust Agreement or (ii) violate
any applicable Delaware law or administrative regulation.
(viii) Assuming that the Trust derives no income from or connected
with services provided within the State of Delaware and has no assets,
activities (other than having a
23
Delaware trustee as required by the Delaware Act and the filing of documents
with the Secretary of State of the State of Delaware) or employees in the State
of Delaware, no filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any Delaware court or Delaware
governmental authority or agency (other than as may be required under the
securities or blue sky laws of the State of Delaware as to which such counsel
may express no opinion) is necessary or required to be obtained by the Trust
solely in connection with the due authorization, execution and delivery of this
Agreement by the Trust or the offering, issuance, sale or delivery of the Trust
Preferred Securities by the Trust in accordance with the Trust Agreement and the
Prospectus.
(ix) After due inquiry on January __, 1998, limited to, and solely to
the extent disclosed thereupon, court dockets for active cases in the Court of
Chancery of the State of Delaware in and for New Castle County, Delaware, of the
Superior Court of the State of Delaware in and for New Castle County, Delaware,
and of the United States District Court sitting in the State of Delaware, such
counsel is not aware of any legal or governmental proceeding pending against the
Trust.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance, transfer and
other similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(f) At the Closing Time, the Representatives shall have received, the
favorable opinion, dated as of Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A.,
counsel to Wilmington Trust Company, as Property Trustee under the Trust
Agreement, Indenture Trustee under the Indenture, and Guarantee Trustee under
the Guarantee Agreement, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) Wilmington Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of the State
of Delaware.
(ii) Wilmington Trust Company has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement, the Indenture and
the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement have been duly authorized, executed and delivered by Wilmington Trust
Company and constitutes a legal, valid and binding obligation of Wilmington
Trust Company, enforceable against Wilmington Trust Company, in accordance with
its terms.
24
(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 bylaws 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 Sates of America governing the banking or trust powers of Wilmington
Trust Company is required for the execution, delivery or performance by the
Wilmington Trust Company of the Trust Agreement, the Indenture and the Guarantee
Agreement.
(g) At the Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs or
prospects of the Trust or the Company, whether or not arising in the ordinary
course of business, and the Representatives shall have received a certificate of
the President or a Vice President of Glacier and of the chief financial or chief
accounting officer of Glacier and a certificate of an Administrative Trustee of
the Trust, and dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties in
Section 2 hereof are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Trust or Glacier, as the
case may be, has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been initiated or
threatened by the Commission.
(h) Xxxxxx Xxxxxxxx LLP shall furnish to the Representatives letters
(which may refer to letters previously delivered to the Representatives), dated
as of the date this Agreement is executed and the Closing Time, in form, and
substance satisfactory to the Representatives, with respect to the financial
statements and financial information included or incorporated by reference in
the Registration Statement and Prospectus, stating in effect that:
(i) They are independent accountants within the meaning of the Act
and the Rules and Regulations and the Exchange Act and the Exchange Act
Regulations.
(ii) In their opinion, the consolidated financial statements of the
Company audited by them and included or incorporated by reference in the
Registration Statement and Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and the Act Regulations
with respect to registration statements on Form S-2 and the Exchange Act and the
Exchange Act Regulations.
(iii) On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
25
(a) Reading the minutes of the meetings of the stockholders, the board
of directors, executive committee and audit committee of Glacier and the boards
of directors and executive committees of the Subsidiaries as set forth in the
minute books through a specified date not more than three business days prior to
the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information as
described in SAS No. 71, Interim Financial Information, on the unaudited
condensed consolidated interim financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus and reading the unaudited interim
financial data, if any, for the period from the date of the latest balance sheet
included or incorporated by reference in the Registration Statement and
Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and the Trust
who have responsibility for financial and accounting matters regarding the
specific items for which representations are requested below; nothing has come
to their attention as a result of the foregoing procedures that caused them to
believe that:
(1) the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the Registration
Statement and Prospectus, do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act and the
Exchange Act Regulations thereunder;
(2) any material modifications should be made to the unaudited
condensed consolidated interim financial statements, included or
incorporated by reference in the Registration Statement and Prospectus, for
them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim
financial data and at the specified date not more than five business days
prior to the date of the delivery of such latter, there was any change in
the capital stock or the long-term debt (other than scheduled repayments of
such debt) or any decreases in stockholders' equity of the Company on a
consolidated basis as compared with the amounts shown in the latest balance
sheet included or incorporated by reference in the Registration Statement
and the Prospectus, or (ii) for the period from the date of the latest
available financial data to a specified date not more than three business
days prior to the delivery of such letter, there was any change in the
capital stock or the long-term debt (other than scheduled repayments of
such debt) or any decreases in stockholders' equity of the Company on a
consolidated basis, except in all instances for changes or decreases which
the Registration Statement and Prospectus discloses have occurred or may
occur, or Xxxxxx Xxxxxxxx LLP shall state any specific changes or
decreases.
26
The letter shall also state that Xxxxxx Xxxxxxxx LLP has carried out
certain other specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus and which
are specified by the Representatives and agreed to by Xxxxxx Xxxxxxxx LLP, and
has found such amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the Company
identified in such letter.
(i) On or before the date any of the Trust Preferred Securities are
released by the Representatives for sale to the public and at the Closing Time,
the Trust Preferred Securities shall be listed on the AMEX.
(j) The NASD, upon its review of the terms of the public offering of
the Trust Preferred Securities, shall not have objected to the fairness and
reasonableness of the underwriting terms and arrangements as proposed in this
Agreement or the Underwriters' participation in the offering.
(k) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Trust
Preferred Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Offerors, in connection with the issuance and sale of the Trust
Preferred Securities as herein contemplated shall be reasonably satisfactory in
form and substance to the Representatives and Manatt, Xxxxxx & Xxxxxxxx, LLP,
counsel for the Underwriters.
(l) If any condition specified in this Section 7 shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Offerors, in
writing or by telephone or telegraph confirmed in writing, at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 6 hereof, and except
that Sections 6 and 8 shall survive any such termination and will remain in full
force and effect.
8. Indemnification.
---------------
(a) The Offerors agree, jointly and severally, to indemnify and hold
harmless each Underwriter and each of its partners, officers, directors and
employees and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any
and all losses, claims, damages or liabilities, and any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Trust Preferred Securities), joint
or several which arises out of or based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement or
any amendment or supplement thereto, including information deemed to be part of
the
27
Registration Statement pursuant to Rule 430A of the Rules and Regulations,
if applicable, the Prospectus or any Preliminary Prospectus, or any amendment or
supplement thereto, or any blue sky application or other document, and any
amendment or supplement thereto, executed by the Offerors specifically for the
purpose of qualifying, or based upon written information furnished by the
Offerors filed in any state or other jurisdiction in order to qualify, any or
all of the Trust Preferred Securities under the securities or blue sky laws
thereof 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 not misleading, and will reimburse, as incurred, such Underwriter
or such controlling persons for any legal or other expenses incurred by such
Underwriter or such controlling persons in connection with investigating,
defending or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action; provided, however, that the Offerors
-------- -------
will 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 any untrue statement
or alleged untrue statement or omission or alleged omission made in any of such
documents in reliance upon and in conformity with information furnished in
writing to the Offerors on behalf of such Underwriter through the
Representatives expressly for use therein, and provided, further, that such
-------- -------
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage,
liability or action purchased Trust Preferred Securities which are the subject
thereof to the extent that any such loss, claim, damage, liability or action (i)
results from the fact that such Underwriter failed to send or give a copy of the
Prospectus (as amended or supplemented) to such person at or prior to the
confirmation of the sale of such Trust Preferred Securities to such person in
any case where such delivery is required by the Act, and (ii) arises out of or
is based upon an untrue statement or omission of a material fact contained in
such Preliminary Prospectus that was corrected in the Prospectus (as amended and
supplemented), unless such failure resulted from noncompliance by the Offerors
with Section 5 hereof or failure of the Offerors to timely furnish copies of
such Prospectus to the Underwriters. The indemnity agreement in this paragraph
(a) shall be in addition to any liability which the Offerors may otherwise have.
(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Offerors, each of its directors, each of its
officers who has signed the Registration Statement, and each person, if any, who
controls the Offerors within the meaning of Section 15 of the Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Offerors to each Underwriter, but only with reference to written information
relating to such Underwriter and specifically included in the Prospectus. This
indemnity shall be in addition to any liability which such Underwriter may
otherwise have. The Offerors acknowledge that the statements set forth in the
bottom paragraph on the inside of the cover page of the Prospectus and the table
and the second, fourth and eighth paragraph under the heading "Underwriting" in
the Prospectus constitute the only information furnished in writing by the
several Underwriters for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to
28
be made against one or more indemnifying parties under this Section 8, notify
such indemnifying party or parties of the commencement thereof; but the omission
to so notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under subsection (a)
or (b) of this Section 8 or to the extent that the indemnifying party was not
adversely affected by such omission. In case any such action is brought against
an indemnified party and it notifies an indemnifying party or parties of the
commencement thereof, the indemnifying party or parties against which a claim is
to be made will be entitled to participate therein and, to the extent that it or
they may wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
-------- -------
defendants in any such action include both the indemnified party and the
indemnifying party, and the indemnified party has reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and otherwise to participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified
party, and the indemnified party under this Section 8 for any legal or other
expenses (other than the reasonable costs of investigation) subsequently
incurred by such indemnified party in connection with the defense thereof unless
(i) the indemnified party has employed separate counsel in connection with the
assumption of such different or additional legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the lead Underwriter in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions), or (ii) the indemnifying party has not employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, or (iii) the indemnifying party has authorized in writing the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party, which will not be unreasonably withheld, unless such
indemnified party waived its rights under this Section 8 in writing in which
case the indemnified party may effect such settlement without such consent.
(d) The Company agrees to indemnify the Trust against all losses,
claims, damages or liabilities due from the Trust to the extent provided in
Section 8(a) hereof.
(e) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party
29
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) (i) in such proportion as is appropriate to reflect the
relative benefits received by each of the contributing parties, on the one hand,
and the party to be indemnified, on the other hand, 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 each of the contributing parties, on the one hand,
and the party to be indemnified, on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. Relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Offerors or by the Underwriters, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this paragraph (e) shall be deemed to include any
legal or other expenses reasonable incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (e), the Underwriters shall not
be required to contribute any amount in excess of the underwriting discount or
compensation applicable to the Trust Preferred Securities purchased by the
Underwriters hereunder. The Underwriters' obligations to contribute pursuant to
this paragraph (e) are several in proportion to their respective underwriting
obligations, and not joint. 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. For purposes of this paragraph (e), (i) each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter and (ii) each director of the Offerors, each officer of the
Offerors who has signed the Registration Statement, and each person, if any, who
controls the Offerors within the meaning of Section 15 of the Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Offerors,
subject in each case to this paragraph (e). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect to which a claim for contribution may
be made against another party or parties under this paragraph (e), notify such
party or parties from whom contribution may be sought, but the omission so to
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation (x) it or they may have
hereunder or otherwise than under this paragraph (e), or (y) to the extent that
such party or parties were not adversely affected by such omission. The
contribution agreement set forth above shall be in addition to any liabilities
which any indemnifying party may otherwise have.
9. Representations, etc. to Survive Delivery.
-----------------------------------------
The respective representations, warranties, agreements, covenants,
indemnities and statements of, and on behalf of, the Offerors and their officers
and trustees, and the Underwriters, respectively, set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters, and will survive
delivery
30
of and payment for the Trust Preferred Securities. Any successors to the
Underwriters shall be entitled to the indemnity, contribution and reimbursement
agreements contained in this Agreement.
10. Effective Date and Termination.
------------------------------
(a) This Agreement shall become effective (i) if at the time of
execution of this Agreement the Registration Statement has not become effective,
at 8:00 a.m., California time, on the first full business day following the
effectiveness of the Registration Statement, or (ii) if at the time of execution
of this Agreement the Registration Statement has been declared effective, at
8:00 a.m., California time, on the first full business day following the date of
execution of this Agreement; but this Agreement shall nevertheless become
effective at such earlier time after the Registration Statement becomes
effective as you may determine on and by notice to the Company or by release of
any of the Trust Preferred Securities for sale to the public. For the purposes
of this Section 10(a), the Trust Preferred Securities shall be deemed to have
been so released upon the release for publication of any newspaper advertisement
relating to the Trust Preferred Securities or upon the release by you of notices
(i) advising Underwriters that the Trust Preferred Securities are released for
public offering, or (ii) offering the Trust Preferred Securities for sale to
securities dealers, whichever may occur first. Until such time as this
Agreement shall have become effective, it may be terminated by the Offerors, by
notifying you, or by you, as Representatives of the several Underwriters, by
notifying Glacier; provided, however, that the provisions of this Section and of
-------- -------
Section 6 and Section 8 hereof shall at all times be effective.
(b) This Agreement (except for the provisions of Sections 6 and 8
hereof) may be terminated by the Representatives by notice to the Offerors in
the event that the Offerors have failed to comply in any respect with any of the
provisions of this Agreement required on its part to be performed at or prior to
the Closing Time, or if any of the representations or warranties of the Offerors
are not accurate in any respect or if the covenants, agreements or conditions
of, or applicable to the Offerors herein contained have not been complied with
in any respect or satisfied within the time specified at or prior to the Closing
Time, or if prior to the Closing Time:
(i) the Company or the Trust shall have sustained a loss by
strike, fire, flood, accident or other calamity of such a character as to
interfere materially with the conduct of the business and operations of the
Company or the Trust, regardless of whether or not such loss was insured;
(ii) trading in the Trust Preferred Securities shall have been
suspended by the Commission or the AMEX or trading in securities generally
on the AMEX, New York Stock Exchange or the Nasdaq National Market shall
have been suspended or a material limitation on such trading shall have
been imposed or minimum or maximum prices shall have been established on
any such market system;
(iii) a banking moratorium shall have been declared by New York,
California or United States authorities;
31
(iv) there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power or an outbreak
or escalation of any other insurrection or armed conflict involving the
United States; or
(v) there shall have been a material adverse change in (A)
general economic, political or financial conditions or (B) the present or
prospective business or condition (financial or other) of the Company or
the Trust, that, in each case, in the Representatives' judgment makes it
impracticable or inadvisable to make or consummate the public offering,
sale or delivery of the Trust Preferred Securities on the terms and in the
manner contemplated in the Prospectus and the Registration Statement.
(c) Termination of this Agreement pursuant to Section 10(b) shall be
without liability of any party to any other party other than as provided in
Sections 6 and 8 hereof.
11. Substitution of Underwriters.
----------------------------
If one or more of the Underwriters shall fail or refuse (otherwise
than for a reason sufficient to justify the termination of this Agreement under
the provisions of Section 7 or 10 hereof) to purchase and pay for the number of
Trust Preferred Securities agreed to be purchased by such Underwriter or
Underwriters upon tender to you of such Trust Preferred Securities in accordance
with the terms hereof, and the number of such Trust Preferred Securities shall
not exceed 10% of the Trust Preferred Securities required to be purchased at the
Closing Time, then, each of the non-defaulting Underwriters shall purchase and
pay for (in addition to the number of such Trust Preferred Securities which it
has severally agreed to purchase hereunder) that proportion of the number of
Trust Preferred Securities which the defaulting Underwriter or Underwriters
shall have so failed or refused to purchase at such Closing Time, which the
number of Trust Preferred Securities agreed to be purchased by such non-
defaulting Underwriter bears to the aggregate number of Trust Preferred
Securities so agreed to be purchased by all such non-defaulting Underwriters at
such Closing Time. In such case, you shall have the right to postpone the
Closing Time to a date not exceeding seven full business days after the date
originally fixed as such Closing Time pursuant to the terms hereof in order that
any necessary changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be made.
If one or more of the Underwriters shall fail or refuse (otherwise
than for a reason sufficient to justify the termination of this Agreement under
the provisions of Section 7 or 10 hereof) to purchase and pay for the number of
Trust Preferred Securities agreed to be purchased by such Underwriter or
Underwriters upon tender to you of such Trust Preferred Securities in accordance
with the terms hereof, and the number of such Trust Preferred Securities shall
exceed 10% of the Trust Preferred Securities required to be purchased by all the
Underwriters at the Closing Time, then (unless within 48 hours after such
default arrangements to your satisfaction shall have been made for the purchase
of the defaulted Trust Preferred Securities by an Underwriter or Underwriters)
and subject to the provisions of Section 11 hereof, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or on
the part of the Offerors except as otherwise provided
32
in Sections 6 and 8 hereof. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this paragraph. Nothing
in this Section 11, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
12. Notices.
-------
All communications hereunder shall be in writing and if sent to the
Representatives shall be mailed or delivered or telegraphed and confirmed by
letter or telecopied and confirmed by letter to Sutro & Co. Incorporated, 000
Xxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Equity Syndication Department; or, if sent to the Offerors shall be mailed or
delivered or telegraphed and confirmed by letter or telecopied and confirmed by
letter c/o Glacier Water Services, Inc., 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxx X. Xxxxxx.
13. Successors.
----------
This Agreement shall inure to the benefit of and be binding upon the
Offerors and each Underwriter and the Offerors' and each Underwriter's
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that the
representations, warranties, indemnities and contribution Agreements of the
Offerors contained in this Agreement shall also be for the benefit of any person
or persons, if any, who control any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, and except that the Underwriters'
indemnity and contribution agreements shall also be for the benefit of the
directors or trustees of the Offerors, the officers or trustees of the Offerors
who have signed the Registration Statement, any person or persons, if any, who
control the Offerors within the meaning of Section 15 of the Act or Section 20
of the Exchange Act. No purchaser of Trust Preferred Securities from the
Underwriters will be deemed a successor because of such purchase.
14. Applicable Law; Jurisdiction.
----------------------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without giving effect to the choice of law
or conflict of law principles thereof. Each party hereto consents to the
jurisdiction of each court in which any action is commenced seeking indemnity or
contribution pursuant to Section 8 above and agrees to accept, either directly
or through an agent, service of process of each such court.
15. Counterparts.
------------
33
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of which together shall be
deemed to be one and the same instrument.
34
If the forgoing correctly sets forth our understanding, please
indicate the Underwriters' acceptance thereof in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
us.
Very truly yours,
GLACIER WATER SERVICES, INC.
By:________________________________________
Name:
Title:
GLACIER WATER TRUST I
By:________________________________________
Name:
Title: Administrative Trustee
Accepted as the date first above written:
SUTRO & CO. INCORPORATED
EVEREN SECURITIES, INC.
XXXXXXX, XXXXXX & CO.
By: SUTRO & CO. INCORPORATED
By: ____________________________________
Name:
Title:
Acting on its own behalf and as the Representative of the several Underwriters
referred to in the foregoing Agreement
35
SCHEDULE I
UNDERWRITERS
Underwriting Agreement dated January __, 1998
Number of
---------
Trust Preferred
---------------
Securities
----------
Name
----
SUTRO & CO. INCORPORATED
EVEREN SECURITIES, INC.
XXXXXXX, XXXXXX & CO.
-------------
Total 3,400,000
