Exhibit 4.1
PURCHASE AGREEMENT
Purchase Agreement, dated as of April 13, 1998 (the 'Agreement'), by and
among UCBH Holdings, Inc., a Delaware corporation, and the other parties named
on the signature pages hereof (each of which is acting severally and not jointly
and as to itself only).
The Common Stock and Trust Preferred Securities described in the Private
Offering Memorandum will be sold in a private placement pursuant to Section 4(2)
of the Securities Act and, accordingly, are not being registered under the
Securities Act. The Common Stock and Trust Preferred Securities described
therein are being offered only to a limited number of institutional and other
accredited investors.
The Trust Preferred Securities to be issued by the Trust will be guaranteed
by the Company, to the extent described in the Private Offering Memorandum with
respect to distributions and payments upon liquidation, redemption and otherwise
(the 'Trust Preferred Securities Guarantee') pursuant to the Series A Capital
Securities Guarantee Agreement. The Trust Preferred Securities issued in
book-entry form will be issued to Cede & Co. as nominee of the DTC pursuant to
the DTC Agreement.
The entire proceeds from the sale of the Trust Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
the Common Trust Securities, as guaranteed by the Company to the extent set
forth in the Private Offering Memorandum with respect to distributions and
payments upon liquidation, redemption and otherwise (the 'Common Trust
Securities Guarantee') pursuant to the Common Securities Guarantee Agreement
(the Trust Preferred Securities Guarantee and the Common Trust Securities
Guarantee are collectively referred to as the 'Guarantees' and the Series A
Capital Securities Guarantee Agreement and the Common Securities Guarantee
Agreement are collectively referred to as the 'Guarantee Agreements'), and will
be used by the Trust to purchase the Junior Subordinated Debentures issued by
the Company. The Common Trust Securities, the Trust Preferred Securities, the
Trust Preferred Securities Guarantee and the Junior Subordinated Debentures are
collectively referred to herein as the 'Series A Securities.'
The Trust Preferred Securities and the Common Trust Securities will be
issued pursuant to the Trust Agreement. The Junior Subordinated Debentures will
be issued pursuant to the Indenture.
The Registration Rights Agreement with respect to the Trust Preferred
Securities provides, among other things, that the Company and the Trust shall
file with the Commission (i) a registration statement (the 'Exchange Offer
Registration Statement') under the Securities Act relating to trust preferred
securities with the same terms and tenor as the Trust Preferred Securities (the
'Series B Trust Preferred Securities'), the Series B Trust Preferred Securities
Guarantee (the 'Series B Trust Preferred Securities Guarantee'), and junior
subordinated debentures with the same terms and tenor as the Junior Subordinated
Debentures (the 'Series B Junior Subordinated Debentures' and, collectively with
the Series B Trust Preferred Securities and the Series B Trust Preferred
Securities Guarantee, the 'Series B Securities'), to be offered in exchange for
the Series A Trust Preferred Securities (such offer to exchange being referred
to herein as the 'Trust Preferred Securities Exchange Offer') and/or a shelf
registration statement pursuant to Rule 415 under the Securities Act relating to
the resale by certain holders of the Series A Trust Preferred Securities.
In consideration of the mutual covenants and agreements set forth herein
and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
'Affiliate' means, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person. For the purposes of this definition, 'control'
(including, with correlative meanings, the terms 'controlled by' and 'under
common control with') shall
A-1
mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
'Agency Agreement' means the Agency Agreement between the Company, the
Bank, the Trust and the Placement Agent with respect to the offering of
Securities, as amended, supplemented or modified from time to time.
'Agreement' means this Purchase Agreement, as amended, supplemented or
modified from time to time.
'Bank' means United Commercial Bank, a federally-chartered savings
bank, together with its successors.
'Business Day' means any day except a Saturday, Sunday or other day on
which commercial banks and savings institutions in the State of California
are authorized or obligated by law to close.
'Capital Securities' of any Person means Capital Stock of the Person
and Stock Equivalents of the Person.
'Capital Stock' of any Person means any and all shares of capital
stock or other equity interest of such Person.
'Closing' has the meaning set forth in Section 2.2.
'Closing Date' has the meaning set forth in Section 2.2.
'Code' means the Internal Revenue Code of 1986, as amended (or any
successor statute in effect from time to time), and the rules and
regulations promulgated thereunder.
'Commission' means the Securities and Exchange Commission and any
successor thereto.
'Common Stock' means the Common Stock, par value $10.00 per share, of
the Company, which par value shall be reduced to $0.01 per share by an
amendment to the Company's Certificate of Incorporation immediately prior
to the Closing.
'Common Trust Securities' means the Common Trust Securities issued by
the Trust to the Company.
'Company' means UCBH Holdings, Inc., a Delaware corporation, together
with its successors.
'DTC' means the Depository Trust Company.
'DTC Agreement' means the DTC Agreement between the DTC and Wilmington
Trust Company, as property trustee.
'Environmental Claim' means any written notice from any governmental
authority or third party alleging potential liability (including without
limitation potential liability for investigating costs, cleanup costs,
governmental response costs, natural resource damages, property damages,
personal injuries or penalties) arising out of, based on, or resulting from
the presence, or release into the environment of any Materials of
Environmental Concern.
'Environmental Laws' means any law, statute, rule or regulation of any
governmental, judicial, legislative, executive, administrative or
regulatory authority of the United States, or of any state, local or
foreign government or any subdivision thereof or of any governmental body
or other regulatory or administrative agency or commission, domestic or
foreign (a 'Law'), relating to pollution or protection of the environment
(including ambient air, surface water, groundwater, land surface or
subsurface strata), including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
the Resource Conservation and Recovery Act of 1976, as amended, and other
Laws relating to (i) emissions, discharges or releases of pollutants,
contaminants, chemicals, or industrial toxic or hazardous substances or
wastes (collectively known as 'Polluting Substances') or (ii) the handling,
storage, disposal, reclamation, recycling or transportation of Polluting
Substances.
'ERISA' means the Employee Retirement Income Security Act of 1974, as
amended (or any successor statute in effect from time to time).
A-2
'Exchange' means the exchange of Senior Notes by the Selling
Shareholders for shares of Common Stock pursuant to the terms of the
Exchange and Redemption Agreement.
'Exchange and Redemption Agreement' means the agreement to be entered
into among the Company and the Selling Shareholders, whereby the Company
will conduct the Exchange and then redeem all of the issued and outstanding
shares of Common Stock of the Company.
'Exchange Act' means the Securities Exchange Act of 1934, as amended
and in effect from time to time (or any successor statute in effect from
time to time), and the rules and regulations of the Commission promulgated
thereunder.
'FDIA' means the Federal Deposit Insurance Act, as amended (or any
successor statute in effect from time to time).
'FDIC' means the Federal Deposit Insurance Corporation and any
successor thereto.
'Guarantee Agreements' means the Series A Securities Guarantee
Agreement relating to the Trust Preferred Securities between the Company
and Wilmington Trust Company, as guarantee trustee, and the Common
Securities Guarantee Agreement made by the Company with respect to the
Common Trust Securities.
'HOLA' means the Home Owners' Loan Act, as amended (or any successor
statute in effect from time to time).
'Indenture' means the Indenture between the Company and Wilmington
Trust Company, as debenture trustee, as the same may be amended from time
to time in accordance with the terms thereof, providing for the issuance of
the Junior Subordinated Debentures.
'Junior Subordinated Debentures' means the Company's Junior
Subordinated Deferrable Interest Debentures issued by the Company to UCBH
Trust Co. pursuant to the Indenture, as described in the Private Offering
Memorandum.
'Lien' means, with respect to any asset, any mortgage, lien, pledge,
encumbrance, charge or security interest of any kind in respect of such
asset.
'Management' means the following members of the senior management of
the Company: Chairman, President, Chief Executive Officer, Chief Financial
Officer and any Executive Vice President.
'Material Adverse Effect' means a material adverse effect on the
financial condition, business or results of operations of the Company and
the Company Subsidiaries, taken as a whole; provided, however, that
Material Adverse Effect shall not be deemed to include the impact of the
transactions contemplated by this Agreement or any Related Agreement,
including the fees and expenses to be paid in connection with the
consummation of the transactions contemplated by this Agreement and the
Related Agreements or any impact or effect on the Company resulting from
actions taken by the Company after the Closing.
'Materials of Environmental Concern' means pollutants, contaminants,
wastes, toxic substances, petroleum and petroleum products and any other
materials regulated under Environmental Laws.
'Non-performing Assets' means the following consolidated assets of the
Company: (i) loans, securities or other assets with respect to which the
Company or the Bank have ceased recognizing interest under generally
accepted accounting principles or as to which any payments of principal or
interest are past due 90 days or more as of the applicable date and (ii)
Real Estate Owned; and references herein to the amounts of Non-performing
Assets shall mean and refer to the aggregate carrying value of such assets
as stated in the books and financial statements of the Company and the Bank
under generally accepted accounting principles.
'OTS' means the Office of Thrift Supervision and any successor
thereto.
'Person' means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or a political subdivision or an agency or instrumentality
thereof.
A-3
'Placement Agent' means Sandler X'Xxxxx & Partners, L.P., in its
capacity as private placement agent pursuant to the Agency Agreement with
respect to the offering of Securities described in the Private Offering
Memorandum.
'Preferred Stock' means the Preferred Stock, par value $.01 per share,
of the Company, to be authorized by an amendment to the Company's
Certificate of Incorporation immediately prior to the Closing.
'Previously Disclosed' means disclosed either (i) in a letter dated
the date hereof delivered from the Company to the Placement Agent or from a
Purchaser to the Company, as applicable, specifically referring to the
appropriate section of this Agreement and describing in reasonable detail
the matters contained therein, or (ii) in the Private Offering Memorandum.
'Private Offering Memorandum' means the Private Offering Memorandum,
dated March 31, 1998, as amended or supplemented by the Company at any time
prior to the Closing.
'Purchaser' means each Person (other than the Company) listed on the
signature pages of this Agreement, and its permitted successors and assigns
as provided herein, including any Person who becomes a party hereto by
executing and delivering a signature page hereto after the date of this
Agreement.
'Real Estate Owned' means the consolidated properties of the Company
acquired by foreclosure on a loan or deed-in-lieu thereof or otherwise
included in the Company's real estate owned for purposes of reporting asset
quality of the Bank in its reports filed with the OTS.
'Registration Rights Agreements' means the two Registration Rights
Agreements to be entered into among the Company and the Purchasers, as
amended, supplemented or otherwise modified from time to time, one of which
is with respect to the Trust Preferred Securities and the other of which is
with respect to the Common Stock, in each case which are sold pursuant to
the Purchase Agreement.
'Related Agreements' means the Exchange and Redemption Agreement, the
Registration Rights Agreements, the Agency Agreement, the Indenture, the
Guarantee Agreements, the DTC Agreement and the Trust Agreement.
'SAIF' means the Savings Association Insurance Fund administered by
the FDIC, and any successor thereto.
'Securities' means (i) the Trust Preferred Securities and (ii) the
Common Stock, in each case, to be issued and sold by the Company and
purchased by the Purchasers pursuant to this Agreement.
'Securities Act' means the Securities Act of 1933, as amended (or any
successor statute thereto as in effect from time to time), and the rules
and regulations of the Commission promulgated thereunder.
'Selling Shareholders' shall have the meaning set forth in the
Exchange and Redemption Agreement.
'Senior Notes' means the Company's Senior Notes which shall be
exchanged for Common Stock in accordance with the provisions of the
Exchange and Redemption Agreement.
'State' means each of the states of the United States, the District of
Columbia and the Commonwealth of Puerto Rico.
'Stock Equivalents' means, with respect to any Person, options,
warrants, calls, contracts or other rights entered into or issued by such
Person which confer upon the holder thereof the right (whether or not
contingent) to acquire any Capital Stock, voting securities or securities
convertible into or exchangeable for Capital Stock or voting securities of
such Person.
'Subsidiary' of any Person means any entity of which securities or
other ownership interests having ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions are
owned directly or indirectly by such Person.
'Taxes' means all taxes, charges, fees, levies or other governmental
assessments, including, without limitation, all net income, gross income,
gross receipts, sales, use, ad valorem, transfer, franchise, profits,
license, withholding, payroll, employment, excise, estimated, severance,
stamp, occupation, property or
A-4
other taxes, customs, dues, fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax
or additional amounts imposed by any taxing authority (domestic or
foreign).
'Tax Returns' means all foreign, federal, State and local returns
relating to Taxes.
'Trust Agreement' means the Amended and Restated Declaration of Trust
relating to the Trust among the Company, as sponsor, Wilmington Trust
Company, as property trustee, Wilmington Trust Company, as Delaware
trustee, and the Administrative Trustees named therein, as the same may be
amended from time to time in accordance with the terms thereof, providing
for the issuance of the Trust Preferred Securities.
'Trust Preferred Securities' means the trust preferred securities
initially issued by the Trust pursuant to the Trust Agreement, to be sold
to Purchasers pursuant to the Purchase Agreement.
'UCBH Trust Co.' or the 'Trust' means the Delaware trust established
by the Company.
ARTICLE II
PURCHASE AND SALE OF SECURITIES
SECTION 2.1 PURCHASE AND SALE OF SECURITIES. Subject to the terms and
conditions hereof and the representations and warranties contained herein, at
the Closing (as defined below), the Company agrees that it will issue and sell
to each Purchaser and each such Purchaser agrees, severally and not jointly and
as to itself only, that it will purchase from the Company (i) the number of
shares of Common Stock (at a price per share of $15.00), (ii) the number of
shares of Trust Preferred Securities (liquidation amount of $1,000 per security)
or (iii) a combination of Common Stock and Trust Preferred Securities, in each
case as set forth below each such Purchaser's name on the Investor Signature
Page to this Agreement.
SECTION 2.2 CLOSING. The purchase and sale of the Securities will take
place at a closing (the 'Closing') to be held at the offices of the Placement
Agent, New York, New York, on such date as all of the conditions to the parties'
obligations hereunder specified in Article IV of this Agreement (other than the
delivery of certificates, opinions and other instruments and documents to be
delivered at the Closing) have been satisfied or waived, or at such other
location, and on such other Business Day and time as the parties hereto shall
mutually agree. The date on which the Closing is to occur is referred to herein
as the 'Closing Date.'
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as
Previously Disclosed, the Company represents and warrants to, and covenants and
agrees with, the Placement Agent and each of the Purchasers as follows:
(a) Capital Structure. As of the date hereof, the authorized capital
stock of the Company consists of 3,000 shares of Common Stock and no shares
of Preferred Stock. Immediately prior to the Closing, the Company shall
amend its Certificate of Incorporation in order to increase its authorized
capital stock to 25,000,000 shares of Common Stock and 10,000,000 shares of
Preferred Stock. As of the date hereof, there were 1,000 shares of Common
Stock issued and outstanding. Other than the shares of Common Stock which
are to be issued in the Exchange, immediately prior to the Closing on the
Closing Date, the Company's outstanding Capital Stock will be as set forth
in the preceding sentence. As of the date hereof, all outstanding shares of
Common Stock have been duly authorized and validly issued and are fully
paid and nonassessable and none of the outstanding shares of Common Stock
has been issued in violation of the preemptive rights of any Person. There
are no Stock Equivalents authorized, issued or outstanding with respect to
the Capital Stock of the Company as of the date hereof.
(b) Organization, Standing and Authority of the Company. The Company
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware with full corporate power and
authority to own or lease all of its properties and assets and to carry on
its business as now
A-5
conducted and is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which its ownership or leasing of property
or the conduct of its business requires such licensing or qualification,
except where the failure to be so licensed, qualified or in good standing
would not have a Material Adverse Effect. The Company is registered as a
savings and loan holding company under the HOLA and the regulations of the
OTS thereunder. The Company has heretofore delivered true and complete
copies of the Certificate of Incorporation and Bylaws of the Company as in
effect as of the date hereof to each Purchaser which has made a written
request directly to the Company for the same.
(c) Organization, Standing and Authority of the Trust. The Trust has
been duly created and is validly existing in good standing as a business
trust under the laws of the State of Delaware with the power and authority
to own property and to conduct its business as described in the Private
Offering Memorandum. The Trust is not a party to or otherwise bound by any
material agreement other than the applicable Related Agreements. The Trust
is, and will be, under current law, classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as
a corporation.
(d) Ownership of the Company Subsidiaries. The only direct or
indirect Subsidiaries of the Company consist of the Bank, Credit Card
U.S.A., Inc., U.F. Service Corporation and United Savings Insurance Agency.
Except for (i) Capital Stock of the Company Subsidiaries, (ii) stock in the
Federal Home Loan Bank of San Francisco and (iii) securities and other
interests taken in consideration of debts previously contracted, the
Company does not own or have the right to acquire, directly or indirectly,
any outstanding Capital Stock or other voting securities or ownership
interests of any corporation, bank, savings association, partnership, joint
venture or other organization. The outstanding shares of Capital Stock of
the Company Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and are directly or indirectly owned by the
Company free and clear of all Liens. No Stock Equivalents are authorized,
issued or outstanding with respect to the Capital Stock of the Company
Subsidiaries and there are no agreements, understandings or commitments
relating to the right of the Company to vote or to dispose of such Capital
Stock.
(e) Organization, Standing and Authority of the Company Subsidiaries.
The Bank is a federally-chartered savings bank duly organized and validly
existing under the laws of the United States, and the other Company
Subsidiaries are corporations duly organized, validly existing and in good
standing under the laws of their respective jurisdictions of incorporation.
The deposit accounts of the Bank are insured by the SAIF to the maximum
extent permitted by the FDIA, and the Bank has paid all premiums and
assessments required by the FDIA and the regulations thereunder. Each of
the Company Subsidiaries has full power and authority to own or lease all
of its respective properties and assets and to carry on its respective
business as now conducted and is duly licensed or qualified to do business
and is in good standing in each jurisdiction in which its ownership or
leasing of property or the conduct of its business requires such
qualification, except where the failure to be so licensed, qualified or in
good standing would not have a Material Adverse Effect. The Company has
heretofore delivered true and complete copies of the Articles of
Incorporation, Charter and Bylaws of each of the Company Subsidiaries as in
effect as of the date hereof to each Purchaser which has made a written
request directly to the Company for the same.
(f) Authority. The Company and the Trust have full corporate power
and authority to perform its obligations under this Agreement and the
Company and the Trust each have full corporate power and authority to
perform their obligations under each of the Related Agreements to which
they will become a party, and the execution, delivery and performance by
the Company and the Trust of each Related Agreement to which they will
become a party has been or, prior to the Closing, will have been duly
authorized by all necessary corporate action on the part of the Company and
the Trust.
(g) Due Execution. This Agreement constitutes, and each of the
Related Agreements to which the Company and the Trust will become a party,
when duly authorized, executed and delivered by the Company and the Trust,
will constitute valid and binding obligations of the Company and the Trust
enforceable against the Company and the Trust in accordance with their
terms, except as (i) rights to indemnity and contribution under the
Registration Rights Agreements may be limited by applicable law, (ii)
enforceability may be limited by bankruptcy, insolvency, moratorium and
similar laws affecting creditors' rights generally
A-6
and (iii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability.
(h) No Conflict. The execution, delivery and performance of this
Agreement and each of the Related Agreements by the Company and the Trust
will not conflict with or constitute a breach of, or a default under (i)
the Certificate of Incorporation, Articles of Incorporation or Charter (or
Trust Agreement in the case of the Trust), as the case may be, or the
Bylaws of the Company or any of the Company Subsidiaries, (ii) any
obligation, agreement, indenture, bond, debenture, note, instrument or any
other evidence of indebtedness to which the Company, the Trust or any of
the Company Subsidiaries is a party or as to which any of their respective
assets are subject, or (iii) any law, ordinance, order, license, rule or
other regulation or demand of any court or governmental agency, arbitration
panel or authority applicable to the Company and the Trust or any of the
Company Subsidiaries, except, in the case of clause (i) above, provided
that the Certificate of Incorporation is amended to modify the
capitalization of the Company in the manner described in the Private
Placement Memorandum and, in the case of clauses (ii) and (iii) above, for
such conflicts, breaches or defaults which would not, individually or in
the aggregate, have a Material Adverse Effect. Except for compliance with
applicable federal and State securities laws in connection with this
Agreement and the performance by the Company of its obligations under the
Registration Rights Agreements, except as Previously Disclosed, no consent,
approval, order or other authorization of any governmental, administrative
or regulatory body or agency is legally required by or on behalf of the
Company, the Trust or the Company Subsidiaries in connection with the
execution, delivery and performance of this Agreement and each of the
Related Agreements to which the Company or the Trust is or will become a
party. The representations and warranties set forth in clause (iii) of the
second preceding sentence and in the preceding sentence, insofar as it
relates to federal and state securities law requirements are made in
reliance on the representations and warranties of the Purchasers contained
in this Agreement.
(i) Status of Certain Securities. The shares of Common Stock, the
Series A Securities and the Series B Securities issuable pursuant to the
Related Agreements have been authorized by all necessary corporate action
on the part of the Company and the Trust. When the Common Stock and the
Trust Preferred Securities are delivered to the Purchasers at the Closing
against payment therefor as provided in the Purchase Agreement, the Common
Stock and the Trust Preferred Securities will each be duly authorized,
validly issued and fully paid and nonassessable and, with respect to the
Series A Securities, will represent undivided beneficial ownership
interests in the assets of the Trust, and the issuance of the Common Stock
and the Series A Securities will not be in violation of the pre-emptive
rights of any Person. When the Common Trust Securities are delivered to the
Company at the Closing against payment therefore as provided in the Trust
Agreement, they will be duly authorized, validly issued and fully paid and
nonassessable, and will not be issued in violation of the preemptive rights
of any Person. When the Series B Securities are issued in accordance with
the Trust Agreement in exchange for the Series A Securities pursuant to the
Trust Preferred Securities Exchange Offer in accordance with the Trust
Agreement and the Registration Rights Agreement with respect to the Trust
Preferred Securities, such Series B Securities will be validly issued and
fully paid and nonassessable, and will represent undivided beneficial
ownership interests in the assets of the Trust, and the issuance of the
Series B Securities will not be in violation of preemptive rights of any
Person. At the Closing Date, the Junior Subordinated Debentures will have
been duly executed by the Company and, when authenticated in the manner
provided for in the Indenture and delivered by the Company to the Trust
against payment therefor as described in the Private Offering Memorandum,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the extent
that (A) enforceability may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
moratorium and similar laws affecting creditors' rights generally and (B)
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
When the Series B Junior Subordinated Debentures are issued in accordance
with the Indenture in exchange for the Junior Subordinated Debentures
pursuant to the Trust Preferred Securities Exchange Offer in accordance
with the Trust Agreement and the Registration Rights Agreement with respect
to the Trust Preferred Securities, such Series B Junior Subordinated
Debentures will have been duly executed by the Company and when
authenticated in the manner provided for in the Indenture and delivered by
the Company to the Trust, will constitute valid and binding obligations of
the Company, enforceable against the
A-7
Company in accordance with their terms, except to the extent that (A)
enforceability may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), moratorium and similar
laws affecting creditors' rights generally and (B) enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(j) Regulatory Reports. The Company and the Bank have duly filed with
the OTS and the FDIC, as the case may be, in correct form the reports
required to be filed under applicable laws and regulations and such reports
were in all material respects complete and accurate and in compliance with
the requirements of applicable laws and regulations, provided that
information as of a later date shall be deemed to modify information as of
an earlier date; and the Company has previously delivered or made available
to each Purchaser which has requested the same in writing directly to the
Company accurate and complete copies of all such reports. In connection
with the most recent examinations of the Company and the Bank by the OTS,
neither the Company nor the Bank was required to correct or change any
action, procedure or proceeding which the Company or the Bank believes has
not been corrected or changed as requested.
(k) Financial Statements.
(i) The Private Offering Memorandum includes consolidated balance
sheets of the Company as of December 31, 1997 and 1996 and consolidated
statements of operations, stockholders' equity and cash flows of the
Company for each of the years ended December 31, 1997, 1996 and 1995,
accompanied by the related audit report of Price Waterhouse LLP. The
foregoing financial statements, including the related notes where
applicable (the 'Company Financial Statements'), fairly present the
consolidated financial condition of the Company as of the respective
dates set forth therein, and the consolidated results of operations,
stockholders' equity and cash flows of the Company for the respective
periods or as of the respective dates set forth therein.
(ii) The Company Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently
applied during the periods involved, except as stated therein. The books
and records of the Company and the Company Subsidiaries are being
maintained in material compliance with applicable legal and accounting
requirements, and such books and records accurately reflect in all
material respects all dealings and transactions in respect of the
business, assets, liabilities and affairs of the Company and the Company
Subsidiaries.
(iii) Except to the extent (x) reflected, disclosed or provided for
in the consolidated balance sheet of the Company as of December 31, 1997
(including related notes) and (y) of liabilities incurred since such
date in the ordinary course of business, neither the Company nor any of
the Company Subsidiaries has any liabilities, whether absolute, accrued,
contingent or otherwise, which would have a Material Adverse Effect.
(iv) The accountants who certified the Company Financial Statements
included in the Private Offering Memorandum are independent public
accountants within the meaning of the Securities Act.
(l) Material Adverse Change. Since December 31, 1997, (i) neither the
Company nor any of the Company Subsidiaries has incurred any material
liability (on a consolidated basis), except in the ordinary course of
business consistent with past practice (excluding the incurrence of
expenses or obligations in connection with this Agreement, any Related
Agreement or any of the transactions contemplated hereby or thereby) and
except for such liability or liabilities as would not, individually or in
the aggregate, have a Material Adverse Effect, and (ii) no events or
developments involving the Company or the Company Subsidiaries have
occurred which, individually or in the aggregate, (A) have had a Material
Adverse Effect, or (B) materially impair the ability of the Company to
perform its obligations under this Agreement, any Related Agreement to
which it will become a party or any of the Securities.
(m) Environmental Matters.
(i) To the knowledge of the Company, the Company and the Company
Subsidiaries are in compliance with all Environmental Laws, except for
any violations of any Environmental Law which would not, individually or
in the aggregate, have a Material Adverse Effect. Neither the Company
nor any Company Subsidiary has received any communication alleging that
the Company or any Company
A-8
Subsidiary is not in such compliance and, to the knowledge of the
Company, there are no present circumstances that would prevent or
interfere with the continuation of such compliance.
(ii) To the knowledge of the Company, none of the properties owned,
leased or operated by the Company or the Company Subsidiaries has been
or is in violation of or liable under any Environmental Law, except for
any such violations or liabilities which would not individually or in
the aggregate have a Material Adverse Effect.
(iii) To the knowledge of the Company, there are no past or present
actions, activities, circumstances, conditions, events or incidents that
would reasonably form the basis of any Environmental Claim or other
claim or action or governmental investigation that would result in the
imposition of any liability arising under any Environmental Law against
the Company or any Company Subsidiary or against any Person whose
liability for any Environmental Claim the Company or any Company
Subsidiary has or may have retained or assumed either contractually or
by operation of law, except such as would not have a Material Adverse
Effect.
(n) Allowance for Loan Losses. The allowance for loan losses
reflected in the consolidated balance sheets included in the Company
Financial Statements is adequate in all material respects as of their
respective dates under the requirements of generally accepted accounting
principles to provide for reasonably anticipated losses on outstanding
loans net of recoveries. The Real Estate Owned reflected in the
consolidated balance sheets included in the Company Financial Statements is
carried at the lower of cost or fair value, less estimated costs to sell,
as required by generally accepted accounting principles.
(o) Tax Matters. The Company and the Company Subsidiaries have timely
filed all Tax Returns required by applicable law to be filed by them
(including, without limitation, estimated tax returns, income tax returns,
information returns and withholding and employment tax returns) and have
paid, or where payment is not required to have been made, have set up an
adequate reserve or accrual for the payment of, all Taxes required to be
paid in respect of the periods covered by such Tax Returns, except in all
cases where the failure to have timely filed such Tax Returns or have paid
or have set up an adequate reserve or accrual for the payment of all such
Taxes would not have a Material Adverse Effect. As of the date hereof,
there is no audit examination, assessed deficiency, deficiency litigation
or refund litigation with respect to any Taxes of the Company or any of the
Company Subsidiaries. All Taxes due with respect to completed and settled
examinations or concluded litigation relating to the Company have been paid
in full or adequate provision has been made for any such Taxes on the
Company's consolidated balance sheet in accordance with generally accepted
accounting principles. The Company has not executed an extension or waiver
of any statute of limitations on the assessment or collection of any
material tax due that is currently in effect.
(p) ERISA. Each 'employee benefit plan' (as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
('ERISA'), other than any 'multiemployer plan' (as defined in Section 3(37)
or Section 4001(a)(3) of ERISA)) that is sponsored, maintained or
contributed to by the Company (a 'Company Plan') is in compliance in all
material respects with all presently applicable provisions of ERISA, except
where any such noncompliance would not reasonably be expected to have a
Material Adverse Effect; no 'reportable event' (as defined in Section 4043
of ERISA or the regulations thereunder), other than an event as to which
the 30- day statutory notice period is waived by regulation, has occurred
with respect to any Company Plan that is a 'pension plan' (as defined in
Section 3(2) of ERISA (each such Company Plan, a 'Company Pension Plan');
the Company has not incurred and does not expect to incur any material
liability with respect to any Company Pension Plan under (i) Title IV of
ERISA (with respect to the termination of, or withdrawal from, any such
plan) or (ii) Sections 412 or 4971 of the Code; and each Company Pension
Plan has received a determination letter from the Internal Revenue Service
regarding the qualification of such plan under Section 401(a) of the Code,
and to the knowledge of the Company, nothing has occurred, whether by
action or by failure to act, that would cause the loss of such
qualification.
(q) Litigation. There are no actions, suits, investigations or legal
proceedings pending against, or to the knowledge of the Company, threatened
against, or affecting the Company or any of the Company Subsidiaries or
their respective properties before any court or governmental body or agency
which would reasonably be expected to have a Material Adverse Effect or
which in any manner challenge the legality,
A-9
validity or enforceability of this Agreement, any of the Related Agreements
or any of the Securities, or which would reasonably be expected to
materially impair the ability or obligation of the Company to perform fully
on a timely basis its obligations under this Agreement, or the Company or
the Trust to perform fully on a timely basis their obligations under any
Related Agreement to which they will become a party.
(r) Compliance with Laws. Each of the Company and the Company
Subsidiaries has all permits, licenses, certificates of authority, orders
and approvals of, and has made all filings, applications and registrations
with, federal, State, local and foreign governmental or regulatory bodies
that are necessary in order to permit it to carry on its business as it is
presently being conducted and the absence of which would have a Material
Adverse Effect; all such permits, licenses, certificates of authority,
orders and approvals are in full force and effect; and to the knowledge of
the Company, no suspension or cancellation of any of the same is
threatened.
(s) No Default or Violation. Neither the Company nor any of the
Company Subsidiaries currently is in violation of its Certificate of
Incorporation, Articles of Incorporation or Charter, as the case may be, or
its Bylaws, and neither the Company nor any of the Company Subsidiaries is
in violation of any applicable federal, state or local law or ordinance or
any order, rule or regulation of any federal, state, local or other
governmental agency or body (including, without limitation, all banking,
securities, safety, health, environmental, zoning, anti-discrimination,
antitrust, and wage and hour laws, ordinances, orders, rules and
regulations), or in default with respect to any order, writ, injunction or
decree of any court, or in default under any order, license, regulation or
demand of any governmental agency, where any of such violations or defaults
would, individually or in the aggregate, reasonably be expected (i) to have
a Material Adverse Effect or (ii) materially adversely impair the ability
of the Company to perform on a timely basis any obligation which it has
under this Agreement, or the Company or the Trust to perform on a timely
basis any obligation which they have under any Related Agreement to which
they will become a party and none of the Company, the Trust nor any of the
Company Subsidiaries has received any notice or communication from any
federal, state or local governmental authority asserting that the Company,
the Trust or such Company Subsidiary is in violation of any of the
foregoing which would reasonably be expected to have any effect set forth
in clauses (i) or (ii) above. Neither the Company, the Trust nor any of the
Company Subsidiaries is subject to any regulatory or supervisory cease and
desist order, agreement, written directive, memorandum of understanding or
written commitment, and none of them has received any written communication
requesting that they enter into any of the foregoing.
(t) Certain Contracts. Neither the Company nor any Company Subsidiary
is in default or in non-compliance, which default or non-compliance would
reasonably be expected to have a Material Adverse Effect, under any
contract, agreement, commitment, arrangement, lease, insurance policy or
other instrument to which it is a party or by which its assets, business or
operations may be bound or affected, whether entered into in the ordinary
course of business or otherwise and whether written or oral, and there has
not occurred any event that with the lapse of time or the giving of notice,
or both, would constitute such a default or non-compliance.
(u) Insurance. The Company and each Company Subsidiary is insured for
reasonable amounts with financially sound and reputable insurance companies
against such risks as companies engaged in a similar business would, in
accordance with good business practice, customarily be insured and has
maintained all insurance required by applicable laws and regulations,
except where the failure to be so insured would not have a Material Adverse
Effect. Neither the Company nor any of the Company Subsidiaries has
received any notice of cancellation or notice of a material amendment of
any such insurance policy or bond or is in default under such policy or
bond, no coverage thereunder is being disputed and all material claims
thereunder have been filed in a timely fashion, except where any such
cancellation, default or dispute would not, individually or in the
aggregate, have a Material Adverse Effect.
(v) Properties. All real and personal property owned by the Company
or any of the Company Subsidiaries or presently used by any of them in
their respective business is in an adequate condition (ordinary wear and
tear excepted) and is sufficient to carry on the business of the Company
and the Company Subsidiaries in the ordinary course of business consistent
with their past practices. The Company and the Company Subsidiaries have
good and marketable title free and clear of all Liens to all of the
A-10
material properties and assets, real and personal, reflected on the
consolidated balance sheet of the Company as of December 31, 1997 included
in the Company Financial Statements or acquired after such date, except (i)
for Liens for current taxes not yet due or payable, (ii) for pledges to
secure deposits and other Liens incurred in the ordinary course of its
banking business, (iii) for such Liens, if any, which would not,
individually or in the aggregate, have a Material Adverse Effect and (iv)
as reflected on the consolidated balance sheet of the Company as of
December 31, 1997 included in the Company Financial Statements. All real
and personal property which is material to the Company's business on a
consolidated basis and leased or licensed by the Company or any Company
Subsidiary is held pursuant to leases or licenses which are valid and
enforceable in accordance with their respective terms and such leases will
not terminate or lapse prior to the Closing Date, except where such
invalidity, unenforceability, termination or lapse would not, individually
or in the aggregate, have a Material Adverse Effect.
(w) Certain Fees. Except for fees and expenses payable by the Company
to the Placement Agent pursuant to the Agency Agreement, no fees or
commissions will be payable by the Company or any of the Company
Subsidiaries to brokers, finders, investment bankers or banks pursuant to
any agreement entered into by the Company or any of the Company
Subsidiaries with respect to the Exchange or the Redemption, the offer and
sale of the Securities of the Company or of any shares of Capital Stock of
the Company Subsidiaries, or any of the other transactions contemplated by
this Agreement or the Related Agreements.
(x) No Debt. Except for (i) the Senior Notes payable to the Selling
Shareholders with an aggregate outstanding principal balance of $17.1
million as of the date hereof, plus accrued and unpaid interest, and (ii)
the Junior Subordinated Debentures to be issued pursuant to the Indenture,
the Company, on an unconsolidated basis, does not have any outstanding
Indebtedness (as defined in the Indenture).
(y) Similar Offerings. Neither the Company nor the Trust has,
directly or indirectly, solicited any offer to buy or offered to sell, and
will not, directly or indirectly, solicit any offer to buy or offer to
sell, in the United States or to any United States citizen or resident, any
security which is or would be integrated with the sale of the Common Stock
and/or Trust Preferred Securities in a manner that would require the Common
Stock and/or the Trust Preferred Securities to be registered under the
Securities Act.
(z) Regulation M. The Company has not taken and will not take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price
of the Common Stock and/or the Trust Preferred Securities.
(aa) 144A Eligibility. The Trust Preferred Securities issued to
'qualified institutional buyers,' as defined in Rule 144A of the General
Rules and Regulations of the Commission under the Securities Act, are
eligible for resale pursuant to Rule 144A and will not be, at the Closing
Date, of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system.
(bb) No General Solicitation. None of the Trust, the Company, or any
of their affiliates (as such term is defined in Rule 501(b) under the
Securities Act, 'Affiliates') or any person acting on its or any of their
behalf (other than the Placement Agent, as to whom the Company and the
Trust make no representation) has engaged or will engage, in connection
with the offering of the Securities, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities
Act.
(cc) No Registration. It is not necessary in connection with the
offer, sale and delivery of the Securities in the manner contemplated by
this Agreement and the Private Offering Memorandum to register the
Securities under the Securities Act or to qualify the Trust Agreement, the
Indenture or the Guarantee Agreements under the Trust Indenture Act of
1939, as amended.
(dd) Memorandum. The Private Offering Memorandum does not, and at the
Closing Date will not, include an untrue statement of a material fact or
omit 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.
(ee) Disclosure. None of the representations and warranties of the
Company or any of the information or documents which have been Previously
Disclosed pursuant hereto are false or misleading in any material respect
or contain any untrue statement of a material fact, or omit to state any
material fact required to be
A-11
stated or necessary to make any such information or document, at the time
and in light of the circumstances, not misleading. Copies of all documents
referred to in this Section 3.1 are true, correct and complete copies
thereof and include all amendments, supplements and modifications thereto
and all waivers thereunder.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
(a) Investment Intent. Each Purchaser, severally and not jointly and as to
itself only, represents and warrants to, and covenants and agrees with, the
Company that the Securities to be acquired by it hereunder are being acquired
for its own account for investment and with no intention of distributing or
reselling such Securities or any part thereof or interest therein in any
transaction which would be in violation of the securities laws of the United
States of America or any State, without prejudice, however, to a Purchaser's
right, subject to the provisions of this Agreement and the Registration Rights
Agreements, at all times to sell or otherwise dispose of all or any part of such
Securities under an effective registration statement under the Securities Act
and other applicable State securities laws or under an exemption from such
registration requirements, and subject, nevertheless, to the disposition of a
Purchaser's property being at all times within its control. Each Purchaser,
severally and not jointly and as to itself only, further represents and warrants
to the Company that such Purchaser has no present agreement, understanding, plan
or intent to transfer the Securities to be purchased by it to any transferee.
(b) Transfer Restrictions. If a Purchaser should decide to dispose of any
of the Securities purchased pursuant hereto, such Purchaser understands and
agrees that it may do so only pursuant to an effective registration statement
under the Securities Act or as set forth below: (i) to the Company, (ii) to any
Person reasonably believed by such Purchaser to be a 'qualified institutional
buyer' (as defined in Rule 144A under the Securities Act) in compliance with
Rule 144A under the Securities Act, (iii) pursuant to an exemption from
registration set forth in Rule 144 under the Securities Act, (iv) to any Person
who is reasonably believed by such Purchaser to be an 'accredited investor' (as
defined in Rule 501(a) under the Securities Act) and who, prior to such
transfer, furnishes to the Purchaser and the Company a signed letter confirming
its status as an accredited investor and agreeing to the restrictions on
transfer of the Securities set forth in this Agreement or (v) to any Affiliate
of such Purchaser pursuant to an applicable exemption under the Securities Act.
In connection with any transfer of any Securities other than (i) any transfer
pursuant to an effective registration statement or (ii) any transfer by a
qualified institutional buyer, the Company may require that the transferor of
any such Securities provide to the Company an opinion of counsel experienced in
the area of United States securities laws selected by the transferor (which may
include in-house counsel of a transferor), which counsel shall be and the form
and substance of which opinion shall be, reasonably satisfactory to the Company,
to the effect that such transfer does not require registration of such
Securities under the Securities Act or any State securities laws. In connection
with any transfer pursuant to clause (ii) above, the Company may request
reasonable certification as to the status of the transferor's transferee as a
qualified institutional buyer. Each Purchaser agrees to the imprinting, so long
as appropriate, on the certificates representing the shares of Common Stock and
the Trust Preferred Securities, a legend substantially similar to the foregoing
sentences. Such legend may be removed if and when the applicable Securities are
disposed of pursuant to an effective registration statement under the Securities
Act or in the opinion of counsel to the Company experienced in the area of
United States securities laws such legend is no longer required under applicable
requirements of the Securities Act. The certificates evidencing the Securities
also shall bear any other legends required by applicable federal or State
securities laws, which legends may be removed when, in the opinion of counsel to
the Company experienced in the applicable securities laws, the same are no
longer required under the applicable requirements of such securities laws. The
Company agrees that it will provide each Purchaser, upon written request, with a
certificate or certificates evidencing the Securities not bearing such legend at
such time as such legend is no longer applicable.
(c) Stop Transfer Instructions. Each Purchaser agrees that the Company
shall be entitled to make a notation on its records and give instructions to any
transfer agent of the Securities in order to implement the restrictions on
transfer set forth in Section 3.2(b) of this Agreement.
(d) Qualified Institutional Buyer; Accredited Investor; Non-U.S.
Person. Each Purchaser, severally and not jointly and as to itself only,
represents and warrants to, and covenants and agrees with, the Company that (i)
at the time it was offered the Securities, it was, (ii) at the date hereof, it
is, and (iii) at the Closing, it will be, a 'qualified institutional buyer' as
such term is defined in Rule 144A, an 'accredited investor' as defined in
A-12
Rule 501(a) or a non-U.S. person in compliance with the requirements of
Regulation S, in each case, of the General Rules and Regulations of the
Commission under the Securities Act, and has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Securities, and has so
evaluated the merits and risks of such investment, is able to bear the economic
risk of such investment and, at the present time, is able to afford a complete
loss of such investment.
(e) Due Execution. Each Purchaser, severally and not jointly and as to
itself only, represents and warrants to the Company that this Agreement has
been, and each Related Agreement to which it will become a party will be, duly
executed and delivered by it or on its behalf and constitutes, or will
constitute, as applicable, a valid and binding obligation of such Purchaser,
enforceable against the Purchaser in accordance with its terms, except that (i)
rights to indemnity and contribution under the Registration Rights Agreements
may be limited by applicable law, (ii) enforceability may be limited by
bankruptcy, insolvency, moratorium and similar laws affecting creditors' rights
generally and (iii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(f) No Conflict. Each Purchaser, severally and not jointly and as to
itself only, represents and warrants to the Company that (i) the execution,
delivery and performance of this Agreement and each of the Related Agreements to
which it will become a party do not and will not, as applicable, conflict with
or constitute a breach or a default under (i) its articles of incorporation,
charter or other organizational document or bylaws, as applicable, (ii) any
obligation, agreement, indenture, bond, debenture, note, instrument or any other
evidence of indebtedness to which it is a party or as to which its assets are
subject or (iii) any law, ordinance, order, license, rule or other regulation or
demand of any court or governmental agency, arbitration panel or authority
applicable to it.
(g) Access to Information. Each Purchaser acknowledges receipt of the
Private Offering Memorandum and further acknowledges that prior to the date
hereof and, subject to the Company's compliance with its obligations pursuant to
Section 5.1(a) hereof, on and subsequent to the date hereof, it has been
afforded (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the
terms and conditions of the offering of the Securities and the merits and risks
of investing in the Securities and (ii) access to information about the Company
and the Company's financial condition, results of operations, business,
properties, management and prospects sufficient to enable it to evaluate its
investment in the Securities. Each Purchaser also acknowledges that all
information, financial or otherwise, included in the Private Offering Memorandum
has been provided by the Company for evaluation by prospective Purchasers. Each
Purchaser further acknowledges that the information relating to the Company and
the Company Subsidiaries is the sole responsibility of the Company. Each
Purchaser agrees and acknowledges that the Placement Agent has made no
recommendation or warranty and assumes no responsibility as to the accuracy or
completeness of any such information.
(h) Reliance of Others on Purchasers' Representations. Each Purchaser
understands and acknowledges that (i) the Securities are being offered and sold
without registration under the Securities Act in a private placement that is
exempt from the registration provisions of the Securities Act and (ii) such
exemption depends in part on, and that the Company, its counsel and the
Placement Agent will rely upon, the accuracy and truthfulness of the
representations and warranties of such Purchaser set forth in this Agreement,
and such Purchaser hereby consents to such reliance.
(i) Governmental Authorization.
(i) Except for any required compliance by a Purchaser with applicable
federal and State securities laws, each Purchaser, severally and not
jointly and as to itself only, represents and warrants to the Company that
no consent, approval, order or other authorization of any governmental,
administrative or regulatory body or agency is legally required by or on
behalf of the Purchaser in connection with the execution, delivery and
performance of this Agreement and each Related Agreement to which it will
become a party.
(ii) Each Purchaser, severally and not jointly and as to itself only,
represents and warrants that upon consummation of the transactions
contemplated by Section 2.1 hereof, (A) it will not, directly or
indirectly, through one or more subsidiaries or transactions or by acting
in concert with one or more persons or
A-13
companies (whether conclusively or through a rebuttable presumption of
concerted action), be in control of the Company or the Bank, as defined in
12 C.F.R. Section 574.4(a), and will not be subject to a rebuttable
determination of control under 12 C.F.R. Section 574.4(b); and (B) it does
not have any agreements or understandings, written or tacit, with respect
to the exercise of control, directly or indirectly, over the management or
policies of the Company or the Bank, including agreements (except for this
Agreement) relating to voting, acquisition or disposition of the Company's
or the Bank's Capital Stock. Each Purchaser acknowledges that if such
Purchaser is deemed to be so acting in concert with one or more persons or
companies or to have such an agreement or understanding, then such
Purchaser could be in violation of certain federal statutes and
regulations, including, without limitation, bank regulatory and antitrust
laws, and such Purchaser could be subject to fines and other penalties in
respect of such violation.
(iii) Each Purchaser, severally and not jointly and as to itself only,
represents and warrants to the Company that it has not purchased any Trust
Preferred Securities in a block of less than $100,000 liquidation amount
and that it will not sell Trust Preferred Securities to a subsequent
purchaser in a block of less than $100,000 liquidation amount.
(j) Information Provided. Each Purchaser represents and warrants that, in
considering its investment in the Securities, such Purchaser has not relied, and
such Purchaser acknowledges and agrees that it is not entitled to rely, on any
information which is not contained in the Private Offering Memorandum. Each
Purchaser understands and acknowledges that, to the extent he has received or
inspected projections prepared by the Company relating to the future financial
condition and results of operations of the Company and its subsidiaries
(including, without limitation, any business plan of the Company), such
projections are subject to a number of assumptions and conditions, and no
assurance can be made that the Company's future financial condition and results
of operations will not materially deviate from such projections, particularly if
economic or other conditions differ from the assumptions utilized in preparing
such projections (the Purchaser also understands and acknowledges that the
Company does not undertake or assume any obligation to notify the Purchaser or
otherwise amend, revise or supplement such projections in the event such
projections are not realized or the underlying assumptions are changed).
ARTICLE IV
CONDITIONS PRECEDENT TO THE CLOSING
SECTION 4.1 CONDITIONS TO OBLIGATIONS OF THE PARTIES. The respective
obligations of each of the parties hereto to fulfill their obligations under
Section 2.1 hereof at the Closing shall be subject to the satisfaction or waiver
prior to the Closing of the following conditions:
(a) All requirements prescribed by law which are necessary to the
consummation of the transactions contemplated by this Agreement and the
Related Agreements shall have been satisfied.
(b) No party to this Agreement or the Related Agreements shall be
subject to any order, decree or injunction of a court or agency of
competent jurisdiction which enjoins or prohibits the consummation of any
of the transactions contemplated by this Agreement or the Related
Agreements.
(c) No statute, rule or regulation shall have been enacted, entered,
promulgated, interpreted, applied or enforced by any governmental authority
which prohibits, restricts or makes illegal consummation of any of the
transactions contemplated by this Agreement or the Related Agreements.
(d) The Company shall have completed the sale of the Securities as
contemplated by this Agreement and shall have received gross proceeds from
the sale of the Common Stock and the Trust Preferred Securities of at least
$135.0 million and $20.0 million, respectively.
(e) Each of the parties hereto shall have received (i) a counterpart
to this Agreement, duly executed and delivered by the parties hereto, and
(ii) a counterpart of each Related Agreement to which it is a party, in
form and substance satisfactory to the parties, which shall have been duly
executed and delivered by each of the applicable parties.
A-14
SECTION 4.2 CONDITIONS TO OBLIGATIONS OF THE PURCHASERS. The obligations
of each of the Purchasers to fulfill its obligations under Section 2.1 hereof
shall be subject to the satisfaction or waiver prior to the Closing of the
following conditions:
(a) Each of the representations and warranties of the Company
contained in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as if
made on the Closing Date (or on the date when made in the case of any
representation or warranty which specifically relates to an earlier date);
the Company shall have performed, in all material respects, each of its
covenants and agreements contained in this Agreement to be performed prior
to the Closing; and the Placement Agent shall have received a certificate
signed by the Chief Executive Officer and the Chief Financial Officer of
the Company, dated the Closing Date, to the foregoing effect.
(b) Each of the representations and warranties of the Selling
Shareholders contained in the Exchange and Redemption Agreement shall be
true and correct in all material respects as of the date of such agreement
and as of the Closing Date as if made on the Closing Date (or on the date
when made in the case of any representation or warranty which specifically
relates to an earlier date); the Selling Shareholders shall have performed,
in all material respects, each of their covenants and agreements contained
in the Exchange and Redemption Agreement to be performed prior to the
Closing; and the Company shall have received a certificate signed by the
principal executive officer of each of the Selling Shareholders, dated the
Closing Date, to the foregoing effect.
(c) The Company shall have delivered to each Purchaser or its duly
authorized representative a certificate evidencing shares of Common Stock
or Trust Preferred Securities, as the case may be, in each case registered
in the name of the Purchaser, sufficient to evidence the Securities to be
issued and sold by the Company and purchased by the Purchaser, against
payment therefor to the Company, as such investment has been identified on
the Investor Signature Page to this Agreement.
(d) The Company shall have obtained the requisite stockholder approval
of an amendment to its Certificate of Incorporation to increase its
authorized Common Stock to 25,000,000 shares, revise the par value per
share of Common Stock to $0.01 per share and to authorize 10,000,000 shares
of Preferred Stock, and the Company shall have filed with the Secretary of
State of the State of Delaware the appropriate documentation in order to
effect such amendment.
(e) All of the current directors of the Company and the Bank shall
have resigned and Messrs. Xxx, Wu, Downing, Fell and Xxxx shall have been
elected directors of the Company and the Bank.
(f) At the Closing Date, the Placement Agent shall have received the
favorable opinion, dated as of the Closing Date, of Xxxxxx Xxxxx, L.L.P.,
counsel for the Company and the Trust, in form and substance reasonably
satisfactory to counsel for the Placement Agent. Such counsel may state
that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of Trustees of the Trust,
officers of the Company and the Bank and certificates of public officials.
Such counsel may also rely, as to matters of law other than the laws of the
United States, on opinions of counsel reasonably satisfactory to counsel
for the Placement Agent.
(g) At the Closing Date, the Placement Agent shall have received the
favorable opinion, dated as of the Closing Date, of Xxxxxxxx, Xxxxxx &
Finger special Delaware counsel for the Company and the Trust, in form and
substance reasonably satisfactory to counsel for the Placement Agent.
(h) At the Closing Date, the Placement Agent shall have received an
opinion, dated as of the Closing Date, of Xxxxxx Xxxxx, L.L.P., special tax
counsel to the Company and the Trust, substantially to the effect that (i)
the Junior Subordinated Debentures will be classified as indebtedness for
United States federal income tax purposes, (ii) the Trust will be
classified as a grantor trust for United States federal income tax
purposes, and (iii) the statements set forth in the Private Offering
Memorandum under the caption 'Certain Federal Income Tax Consequences With
Respect to the Capital Securities' constitute, in all material respects, a
fair and accurate summary of the principal United States federal income tax
consequences of the ownership and disposition of the Series A Trust
Preferred Securities under current law. Such opinion may be conditioned on,
among other things, the initial and continuing accuracy of the facts,
financial and other
A-15
information, covenants and representations set forth in certificates of
officers of the Company and other documents deemed necessary for such
opinion.
(i) At the Closing Time, the Securities will be eligible for quotation
on the Private Offerings, Resales and Trading through Automated Linkages
('PORTAL') System of the National Association of Securities Dealers, Inc.
(j) The Placement Agent shall have received such other certificates,
opinions, documents and instruments related to the transactions
contemplated hereby as may have been reasonably required by it and are
customary for transactions of this type, and all corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement, shall be
reasonably satisfactory in form and substance to it and its counsel.
SECTION 4.3 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligations of
the Company to fulfill its obligations under this Agreement, including without
limitation the obligations set forth in Section 2.1 hereof, shall be subject to
the satisfaction, or waiver prior to the Closing, of the following conditions:
(a) Each of the representations and warranties of the Purchasers
contained in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as if
made on the Closing Date. Payment by each Purchaser of the applicable
consideration for each of the Securities to be issued and sold by the
Company shall be deemed an affirmation by each such Purchaser of the
representations and warranties set forth in Section 3.2 of this Agreement.
(b) Each Purchaser shall have delivered to the Company the applicable
consideration for each of the Securities to be issued and sold by the
Company and purchased by the Purchaser pursuant to this Agreement, as set
forth on the Investor Signature Page to this Agreement, such amount to be
payable by wire transfer of immediately available funds to an account with
a bank designated by the Company, by notice to each of the Purchasers to be
provided no later than two Business Days prior to the Closing Date.
(c) No party to this Agreement (other than the Company) shall be in
material breach of this Agreement unless such breach shall have been waived
in writing by each of the other parties to this Agreement.
ARTICLE V
COVENANTS
SECTION 5.1 INVESTIGATION AND CONFIDENTIALITY.
(a) Prior to the Closing, the Company shall permit each Purchaser and its
representatives reasonable access to its properties and personnel, and shall
disclose and make available to each Purchaser all books, papers and records
relating to the assets, stock ownership, properties, operations, obligations and
liabilities of the Company and the Company Subsidiaries, including, but not
limited to, all books of account (including the general ledger), tax records,
minute books of meetings of boards of directors (and any committees thereof) and
shareholders, organizational documents, bylaws, material contracts and
agreements, filings with any regulatory authority, accountants' work papers,
litigation files, loan files, plans affecting employees, and any other business
activities or prospects in which a Purchaser may have a reasonable interest,
provided that such access shall be reasonably related to the transactions
contemplated hereby and not unduly interfere with the Company's normal
operations, and provided further that in the event that any of the foregoing are
in the control of any third party, the Company shall use its best efforts to
cause such third party to provide access to such materials to each Purchaser who
shall request the same. In the event that the Company is prohibited by law from
providing any of the access referred to in the preceding sentence to a
Purchaser, it shall use its best efforts to obtain promptly waivers thereof so
as to permit such access. The Company shall make the directors, officers,
employees and agents and authorized representatives (including counsel and
independent public accountants) of the Company and the Company Subsidiaries
available to confer with a Purchaser and its representatives, provided that such
access shall be reasonably related to the transactions contemplated hereby and
not unduly interfere with normal operations.
(b) All information furnished to a Purchaser by the Company previously in
connection with the transactions contemplated by this Agreement or pursuant
hereto shall be treated as the sole property of the Company and each
A-16
Purchaser covenants, severally and not jointly and as to itself only, that it
shall use its best efforts to keep confidential all such information and shall
not directly or indirectly use such information for any competitive or other
commercial purposes. The obligation to keep such information confidential shall
continue for five years from the date hereof but shall not apply to (i) any
information which (x) a Purchaser can establish by convincing evidence was
already in its possession prior to the disclosure thereof by the Company; (y)
was then generally known to the public; or (z) became known to the public
through no fault of a Purchaser; or (ii) disclosures pursuant to a legal
requirement or in accordance with an order of a court of competent jurisdiction,
provided that a Purchaser shall use its best efforts to give the Company at
least ten Business Days prior notice thereof and shall limit such disclosure to
the minimum amount required by such legal requirement or court order.
SECTION 5.2 RULE 144 AND RULE 144A REPORTING.
With a view to making available to holders of Securities the benefits of
certain rules and regulations of the Commission which may permit the sale of the
Securities to the public without registration, the Company agrees from and after
the Closing at all times to:
(a) make and keep public information available, as those terms are
understood and defined in Rules 144 and 144A under the Securities Act (or
any successors thereto); and
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 SURVIVAL OF PROVISIONS. The representations, warranties and
covenants of the Company and the Purchasers made herein and each of the
provisions of Articles V and VI shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of any Purchaser
or the Company, as the case may be, (ii) acceptance of any of the Securities and
payment by the Purchasers therefor, or (iii) the transfer of any Securities or
interest therein by any Purchaser, provided that no transferee may claim the
benefit of any such representation or warranty.
SECTION 6.2 TERMINATION. This Agreement may be terminated (as between the
party electing so to terminate it and the counterparty to which termination is
directed) by giving written notice of termination to the applicable counterparty
at any time prior to the Closing:
(a) By the Company (i) if any of the conditions specified in Sections
4.1 and 4.3 of this Agreement has not been met or waived by it pursuant to
the terms of this Agreement by 5:00 p.m., Eastern Time on ___________, 1998
or (ii) if the Placement Agent shall have failed to deliver to the Company
by 5:00 p.m., Eastern Time, on ___________, 1998, validly executed and
delivered signature pages to this Agreement reflecting binding and
enforceable commitments (subject to the terms of this Agreement) on the
part of Purchasers to purchase at least $135.0 million of Common Stock and
$20.0 million of Trust Preferred Securities; provided, however, that no
such commitment from any single purchaser or group of purchasers acting in
concert to purchase Common Stock shall be for a number of shares of Common
Stock which exceeds 9.9% of the aggregate number of shares of Common Stock
for which such signature pages are delivered; and provided further that no
such commitment from any single purchaser to purchase Trust Preferred
Securities is in a block having a liquidation amount less than $100,000; or
(b) By any Purchaser if any of the conditions specified in Sections
4.1 and 4.2 of this Agreement has not been met or waived by such Purchaser
pursuant to the terms of this Agreement by 5:00 p.m., Eastern Time, on
___________, 1998.
SECTION 6.3 WAIVER; AMENDMENTS.
(a) No failure or delay on the part of the Company or any Purchaser in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be
A-17
available to the Company or any Purchaser at law or in equity. No waiver of or
consent to any departure by the Company or any Purchaser from any provision of
this Agreement shall be effective unless signed in writing by the party entitled
to the benefit thereof. Except as otherwise provided herein, no amendment,
modification or termination of any provision of this Agreement shall be
effective unless signed in writing by or on behalf of the Company and each
Purchaser. Any amendment, supplement or modification of or to any of this
Agreement, any waiver of any provision of this Agreement, and any consent to any
departure from the terms of any provision of this Agreement, shall be effective
only in the specific instance and for the specific purpose for which made or
given. Except where notice is specifically required by this Agreement, no notice
to or demand on any party hereto in any case shall entitle another party hereto
to any other or further notice or demand in similar or other circumstances.
(b) The Company shall not, directly or indirectly, pay or cause to be paid
any remuneration, whether by way of dividends, redemption premiums, fees or
otherwise, to any holder of any Securities as consideration for or as an
inducement to any consent, waiver or amendment of any of the terms and
provisions of this Agreement unless such remuneration is paid to all Purchasers;
provided, however, that this Section 6.3(b) does not restrict the Company's
ability to deal individually with any Purchaser or any subsequent holder with
respect to any settlement of a dispute or in the ordinary course of business.
SECTION 6.4 COMMUNICATIONS. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to any Purchaser, initially at the address set forth below its
name on the Investor Signature Page to this Agreement, and thereafter at
such other address, notice of which is given in accordance with this
Section 6.4;
(ii) if to the Company, initially at 000 Xxx Xxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: President; and thereafter at such
other address notice of which is given in accordance with this Section 6.4;
and
(iii) if to the Placement Agent, initially at Two World Xxxxx Xxxxxx,
000xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx; and
thereafter at such other address notice of which is given in accordance
with this Section 6.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being sent by certified mail, return receipt requested, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery.
SECTION 6.5 COSTS, EXPENSES AND TAXES. The Company agrees to pay all
reasonable costs and expenses incurred by it in connection with the negotiation,
preparation, typing, reproduction, execution, delivery and performance of this
Agreement and the Related Agreements and any amendment or supplement or
modification hereof or thereof (except to the extent otherwise provided in the
Registration Rights Agreements), including without limitation, attorneys fees
and expenses and all reasonable costs and expenses incurred by it in connection
with the Company's administration of this Agreement and any Related Agreement.
The Company shall pay all reasonable costs and expenses (including, without
limitation, attorneys' fees and expenses), if any, incurred by the Purchasers in
connection with any waiver, amendment or modification of any provision of this
Agreement or any Related Agreement with respect to an obligation of, or
requested by, the Company. In addition, the Company shall pay any and all stamp,
transfer and other similar taxes payable in connection with the execution and
delivery of this Agreement or the original issuance of any Securities, and shall
save and hold each Purchaser harmless from and against any and all liabilities
with respect to or resulting from any delay in paying, or omission to pay, such
taxes.
SECTION 6.6 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
A-18
SECTION 6.7 BINDING EFFECT; ASSIGNMENT. Prior to the Closing, the rights
and obligations of any Purchaser under this Agreement may not be assigned to any
other Person except with the prior written consent of the Company and the
Placement Agent, and after the Closing the rights and obligations of any
Purchaser may be assigned by such Purchaser to any Person purchasing Securities
from the Purchaser contemporaneously with such assignment (provided the rights
so assigned shall apply to the Securities so purchased), subject to the
provisions of Section 3.2(b), provided that the rights of a Purchaser pursuant
to Section 5.2 hereof may not be assigned to any Person other than an Affiliate
of such Purchaser. The rights and obligations of the Company under this
Agreement may not be assigned by the Company without the consent of each
Purchaser. Except as expressly provided in this Agreement, this Agreement shall
not be construed so as to confer any right or benefit upon any Person other than
the parties to this Agreement, and their respective successors and permitted
assigns. This Agreement shall be binding upon the Company and each Purchaser,
and their respective successors and permitted assigns.
SECTION 6.8 GOVERNING LAW. This Agreement shall be deemed to be a contract
made under the laws of the State of Delaware, and for all purposes shall be
construed in accordance with the laws of said state, without regard to
principles of conflict of laws.
SECTION 6.9 SEVERABILITY OF PROVISIONS. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability only without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 6.10 HEADINGS AND GENDER. The Article and Section headings and
Table of Contents used or contained in this Agreement are for convenience of
reference only and shall not affect the construction of this Agreement. Use of a
particular gender herein shall be considered to represent the masculine,
feminine or neuter gender whenever appropriate.
SECTION 6.11 INTEGRATION. This Agreement (including documents delivered
pursuant hereto) and the Related Agreements constitute the entire agreement
among the parties with respect to the subject matter thereof and there are no
promises or undertakings with respect thereto not expressly set forth or
referred to herein or therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
UCBH HOLDINGS, INC.
By: /s/ Xxxxx X. Xx
--------------------------
Name: Xxxxx X. Xx
Title: President and Chief Executive Officer
A-19
Investor Signature Page to the Purchase Agreement
__________________________________
Name of Investor
By: __________________________________
Name:
Title:
Address:__________________________
__________________________________
__________________________________
Number of Shares of Common Stock proposed to be purchased
(at $15.00 per share) ______ shares
Aggregate liquidation amount of Trust Preferred Securities
proposed to be purchased (Minimum purchase $100,00 liquidation
amount and increments of $1,00 thereafter) $____________
A-20
