EXHIBIT 1
[.] Shares
FIRST REPUBLIC PREFERRED CAPITAL CORPORATION
[.]% NONCUMULATIVE PERPETUAL SERIES D
PREFERRED STOCK
UNDERWRITING AGREEMENT
[.], 2003
[.], 2003
Xxxxxx Xxxxxxx & Co. Incorporated
[NAMES OF OTHER CO-MANAGERS]
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
First Republic Preferred Capital Corporation, a Nevada corporation (the
"Company"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters") [.] shares of its [.]% Noncumulative
Perpetual Series D Preferred Stock, par value $[.] per share (the "Firm
Shares"). The Company also proposes to issue and sell to the several
Underwriters not more than an additional [.] shares of its [.]% Noncumulative
Perpetual Series D Preferred Stock, par value $[.] per share (the "Additional
Shares") if and to the extent that you, as Managers of the offering, shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such shares of preferred stock granted to the Underwriters in Section 2 hereof.
The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "Shares."
Each of the Shares is exchangeable, on the terms set forth in the
Certificate of Designations of the Company for the Series D Preferred Stock (the
"Certificate of Designations"), for 1/40 of a share of the [.]% Noncumulative
Perpetual Series D Preferred Stock (the "Bank Preferred Stock") of First
Republic Bank, a Nevada banking corporation (the "Bank"), which Bank Preferred
Stock is described in and subject to the conditions set forth in the Certificate
of Designations of the Bank with respect thereto (the "Bank Certificate of
Designations")
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-11 (No. 333-____), including a
prospectus, relating to the Shares. The registration statement as amended at the
time it becomes effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "Securities Act"), is
hereinafter referred to as the "Registration Statement"; the prospectus in the
form first used to confirm sales of Shares is hereinafter referred to as the
"Prospectus." If the Company has filed an abbreviated registration statement to
register additional shares of Common Stock pursuant to Rule 462(b) under the
Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration Statement.
1. Representations and Warranties. Each of the Company and the Bank,
jointly and severally, represents and warrants to and agrees with each of the
Underwriters that:
(a) Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities Act and no
stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and the
Company has complied with any request on the part of the Commission for
additional information.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and on the Closing Date (and, if any Additional Shares are
purchased, on the Option Closing Date (as defined in Section 2)), the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply, in all
material respects, with the requirements of the Securities Act and the
rules and regulations of the Commission under the Securities Act (the
"Securities Act Regulations") (including Rule 415(a) of the Securities Act
Regulations) and did not and 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 not misleading. Neither
the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and on the
Closing Date (and, if any Additional Shares are purchased, on the Option
Closing Date (as defined in Section 2)), included or will include an untrue
statement of a material fact or omitted or will 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. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Xxxxxx Xxxxxxx & Co.
Incorporated expressly for use in the Registration Statement or Prospectus.
(b) The Company and the Bank have not distributed and, prior to the
later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Shares by the Underwriters, they will not distribute
any offering materials in connection with the offering and sale of the
Shares other than the Registration Statement, the Preliminary Prospectus,
the Prospectus or other materials, if any, permitted by the Securities Act
and the Securities Act Regulations.
(c) The financial statements of the Bank included in the Prospectus
and the Registration Statement present fairly in all material respects the
financial position of the Bank and its consolidated subsidiaries as of the
dates indicated and the consolidated results of operations and consolidated
changes in financial position of such entities for the periods specified;
such financial statements comply as to form with the applicable accounting
requirements of the Securities Act and the Securities Act Regulations and
have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis. The balance sheet of the
Company included in the Prospectus and the Registration Statement presents
fairly in all material respects the financial position of the Company as of
the date indicated; such balance sheet complies as to form with the
applicable accounting requirements of the Securities Act and the Securities
Act Regulations and has been prepared in conformity with GAAP applied on a
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consistent basis. The selected financial data included in the Prospectus
and Registration Statement present fairly in all material respects the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included therein.
(d) To the knowledge of the Company and the Bank, the accountants who
certified the financial statements and supporting schedules of the Company
and the Bank and its consolidated subsidiaries included or incorporated by
reference in the Prospectus and the Registration Statement are independent
public accountants as required by the Securities Act and the Securities Act
Regulations.
(e) Since the respective dates as of which information is given in the
Prospectus and the Registration Statement, except as may otherwise be
stated in or referred to therein: (A) there has not been any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs, business prospects or operations of (i) the
Company, whether or not arising in the ordinary course of business (a
"Company Material Adverse Effect") or (ii) the Bank and its subsidiaries
(other than the Company), whether or not arising in the ordinary course of
business (a "Bank Material Adverse Effect" and, together with a Company
Material Adverse Effect, a "Material Adverse Effect"), (B) there have been
no transactions entered into by: (i) the Company or (ii) the Bank or any of
its subsidiaries, in either case other than those in the ordinary course of
business, which are material with respect to the Company or the Bank and
its subsidiaries, as the case may be, and (C) except as disclosed in the
Prospectus and the Registration Statement, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(f) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Nevada and has
full power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and the Registration
Statement and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify or to be in good standing would not result in a Company Material
Adverse Effect.
(g) The Bank has been duly organized and is validly existing as a
Nevada banking corporation with full power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and the Registration Statement and to enter into its obligations
under this Agreement; the Bank is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Bank Material
Adverse Effect. The Bank's deposit accounts are insured by the Federal
Deposit Insurance Corporation (the "FDIC") to the fullest extent provided
under applicable law, and no proceedings for the termination or revocation
of such insurance are pending or, to the knowledge of the Bank, threatened.
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(h) The Company has no subsidiaries.
(i) Each subsidiary of the Bank (other than the Company) has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has full power and
authority to own, lease and operate its properties and conduct its business
as described in the Prospectus and the Registration Statement (or, if not
so described, as presently conducted), and is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property of the conduct of business, except
where the failure to so qualify or to be in good standing would not result
in a Bank Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Bank (other than the Company) has
been duly authorized and validly issued and is fully paid and nonassessable
and is owned, directly or through other subsidiaries of the Bank, by the
Bank; and all of the capital stock of each subsidiary of the Bank that is
owned by the Bank, directly or through other subsidiaries of the Bank, is
owned free and clear of any pledge, lien, encumbrance, claim or equity.
(j) The Company and the Bank and its subsidiaries have good and
marketable title to all properties (real and personal) owned by the Company
and the Bank and its subsidiaries, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of
any kind except such as (i) are described in the Prospectus and the
Registration Statement or (ii) do not, singly or in the aggregate, result
in a Material Adverse Effect.
(k) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus and the Registration Statement in
the column entitled "Actual" under the caption "Capitalization" (except for
(i) subsequent issuances, if any, pursuant to this Agreement, (ii) the
issuance of shares of the Company's common stock to the Bank as
contemplated in the Prospectus and the Registration Statement). The shares
of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable. None of
the outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any security holder
of the Company.
(l) All of the outstanding shares of common stock of the Bank have
been duly authorized and validly issued, are fully paid and nonassessable.
The authorized, issued and outstanding capital stock and any outstanding
short-term debt, long-term debt and capital lease obligations of the Bank
at December 31, 2002 are as set forth in the consolidated financial
statements of the Bank included in the Prospectus and the Registration
Statement, and any subsequent borrowings and issuances have been made in
the ordinary course of business.
(m) This Agreement has been duly authorized, executed and delivered by
each of the Company and the Bank.
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(n) The Shares have been duly authorized for issuance and sale to the
Underwriters and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued, fully paid and nonassessable; the Shares conform in all
material respects to the statements relating thereto contained in the
Prospectus and the Registration Statement and such description conforms in
all material respects to the provisions of the Certificate of Designations;
the relative rights, preferences, interests and powers of the Shares are as
set forth in the Certificate of Designations relating thereto; and the
issuance of the Shares is not subject to the preemptive or other similar
rights of any security holder of the Company.
(o) The Bank Preferred Stock has been duly authorized and, when issued
upon an automatic exchange (as described in the Prospectus and the
Registration Statement), will have been validly issued, fully paid and
nonassessable; the Bank Preferred Stock conforms in all material respects
to the statements relating thereto contained in the Prospectus and the
Registration Statement and such description conforms in all material
respects to the provisions of the Bank Certificate of Designations; the
relative rights, preferences, interests and powers of the Bank Preferred
Stock are as set forth in the Bank Certificate of Designations; and the
issuance of shares of the Bank Preferred Stock is not subject to the
preemptive or other similar rights of any security holder of the Bank.
(p) None of the Bank, the Company or any of the Bank's subsidiaries is
in violation of its charter or by-laws or, to the knowledge of the Bank and
the Company, in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Bank, the Company or any of the Bank's
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Bank, the Company or any of the
Bank's subsidiaries is subject, except for such defaults as would not
result in a Material Adverse Effect. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein and in the Prospectus and the Registration Statement,
(including the issuance and sale of the Shares and the use of the proceeds
from the sale of the Shares as described in the Prospectus and the
Registration Statement under the caption "Use of Proceeds") and compliance
by the Company and the Bank with their respective obligations hereunder
have been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or result in a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of their respective property or
assets pursuant to their respective articles of incorporation, charter or
by-laws or any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which it is a party or by which
it may be bound, or to which any of its property or assets is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances as would not result in a Material Adverse Effect), nor will
such action result in any violation of the provisions of their respective
articles of incorporation, charter or by-laws or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government
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instrumentality or court, domestic or foreign, having jurisdiction over
them or any of their assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or the
Bank, as applicable.
(q) Except as disclosed in the Prospectus and the Registration
Statement, the Company and the Bank and its subsidiaries are conducting
their respective businesses in compliance in all material respects with all
laws, rules, regulations, decisions, directives and orders (including,
without limitation, all regulations and orders of, or agreements with, the
FDIC and the Commissioner, Department of Business and Industry, Financial
Institutions Division, State of Nevada) applicable to them. There is no
action, suit, investigation or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or,
to the knowledge of the Company or the Bank, threatened against or
affecting the Company, the Bank or any of its subsidiaries (i) that is
required to be disclosed in the Prospectus and the Registration Statement
but that is not disclosed therein, (ii) that reasonably could be expected
to result in a Company Material Adverse Effect or a Bank Material Adverse
Effect or (iii) that reasonably could be expected to adversely affect the
consummation of the transactions contemplated in this Agreement.
(r) The Bank is the beneficial owner of at least 90% of the
outstanding common stock of the Company.
(s) There are no contracts or documents which are required to be
described in the Prospectus and the Registration Statement or to be filed
as exhibits thereto which have not been so described or filed, as required
by the Securities Act.
(t) The Company is organized and carries on its business so as to
qualify as a "real estate investment trust" (a "REIT") under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Code"),
and no transaction or other event has occurred which would cause the
Company to fail to qualify as a REIT under the Code for its current taxable
year or for future taxable years.
(u) The Company and the Bank and its subsidiaries own or possess, or
can acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary to
carry on the business now operated by them, and none of the Bank, the
Company or any of the Bank's subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Bank, the Company or any of the
Bank's subsidiaries therein, and which infringement or conflict (if the
subject of any
6
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(v) Neither the Company nor the Bank is, and upon the issuance and
sale of the Shares as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus and the Registration
Statement, neither the Company nor the Bank will be, an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended.
(w) Except as disclosed in the Prospectus, the Company (i) is the sole
owner of the mortgage loans as set forth in the Prospectus and such
ownership is free and clear of any lien, security interest or other
encumbrances, (ii) has not granted, and will not grant, any participation
or other interest or assignment, other option or rights to such loans and
(iii) has not pledged collaterally, assigned or otherwise hypothecated any
interest therein.
(x) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Company or the Bank of their respective obligations hereunder, in
connection with the offering, issuance or sale of the Shares hereunder or
the consummation of the transactions contemplated by this Agreement, except
(i) such as have been or will be obtained, (ii) as may be required under
the Securities Act or the Securities Act Regulations or state securities
laws, (iii) the filing of the Certificate of Designations and the Bank
Certificate of Designations with the appropriate authority in the State of
Nevada and (iv) where the failure to comply would not result in a Material
Adverse Effect.
(y) The Company and the Bank and its subsidiaries have filed all
Federal, state, local and foreign tax returns that are required to be filed
or have duly requested extensions thereof and have paid all taxes required
to be paid by any of them and any related assessments, fines or penalties,
except for any such tax, assessment, fine or penalty that is being
contested in good faith by appropriate proceedings, except where the
failure to do so would not result in a Material Adverse Effect; and
adequate charges, accruals and reserves have been provided for in the
financial statements referred to in Section 1(d) above in respect of all
federal, state, local and foreign taxes for all periods as to which the tax
liability of the Company or the Bank or its subsidiaries has not been
finally determined or remains open to examination by applicable taxing
authorities, except where the failure to do so would not result in a
Material Adverse Effect.
(z) The Company and the Bank and its subsidiaries carry or are
entitled to the benefits of insurance in such amounts and covering such
risks as is generally maintained by companies of established repute engaged
in the same or similar business and of the same or similar size and
complexity, and all such insurance is in full force and effect.
(aa) The Company and the Bank and its subsidiaries possess all
material permits, licenses, approvals, consents and other authorizations
(collectively,
7
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by each of them or proposed to be operated by them as described in
the Prospectus and the Registration Statement; the Company and the Bank and
its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure to so comply would
not, singly or in the aggregate, result in a Material Adverse Effect; all
of the Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in a
Material Adverse Effect; and neither the Company nor the Bank has received
any notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate would result
in a Material Adverse Effect.
(bb) Neither the Company nor the Bank has taken, directly or
indirectly, any action designed to, or that has constituted or might
reasonably be expected to cause or result in, stabilization or manipulation
of the price of the Shares.
(cc) Shares of the Bank Preferred Stock are exempt securities under
Section 3(a)(2) of the Securities Act, and registration under the
Securities Act is not required in connection with the offer and sale of the
Bank Preferred Stock as contemplated herein.
(dd) Prior to the Closing Date, the Bank shall have filed a dated copy
of the Bank Certificate of Designations, duly authorized and adopted by the
Bank, with the Secretary of State of the State of Nevada.
(ee) Except as described in the Registration Statement and except as
would not, singly or in the aggregate, result in a Material Adverse Effect,
to the knowledge of the Company, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, "Environmental Laws"), (B) the Company and its subsidiaries
have all permits, authorization and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violations, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D)
there are no events or circumstances that might reasonably be expected to
form the basis of an order for clean up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
8
against or affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(ff) Except as described in the Registration Statement and the
Prospectus, there are no persons with registration rights or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the Securities Act.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $[.] a share (the "Purchase Price") plus accrued dividends,
if any, to the Closing Date.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to [.] Additional Shares at the
Purchase Price plus accrued dividends, if any, to the Closing Date. You may
exercise this right on behalf of the Underwriters in whole or from time to time
in part by giving written notice of each election to exercise the option not
later than 30 days after the date of this Agreement. Any exercise notice shall
specify the number of Additional Shares to be purchased by the Underwriters and
the date on which such shares are to be purchased. Each purchase date must be at
least one business day after the written notice is given and may not be earlier
than the closing date for the Firm Shares nor later than ten business days after
the date of such notice. Additional Shares may be purchased as provided in
Section 4 hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. On each day, if any, that
Additional Shares are to be purchased (an "Option Closing Date"), each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) that bears the same proportion to the total number of
Additional Shares to be purchased on such Option Closing Date as the number of
Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
The Company hereby agrees that during the period beginning on the date
hereof and continuing to and including the Closing Date, it will not offer,
sell, contract to sell or otherwise dispose of any preferred stock of the
Company or warrants to purchase preferred stock of the Company substantially
similar to the Shares (other than the Shares) without the prior written consent
of Xxxxxx Xxxxxxx & Co. Incorporated.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at $[.]
a share (the "Public Offering Price") plus accrued dividends, if any, to the
Closing Date and to certain dealers selected by you at a price that represents a
concession not in excess of $[.] a share under the Public Offering Price, and
that any Underwriter may allow, and
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such dealers may reallow, a concession, not in excess of $[.] a share, to any
Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on [.], 2003, or at such other
time on the same or such other date, not later than [.], 2003, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "Closing Date."
Payment for any Additional Shares shall be made by to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 2 or on such other date, in any event
not later than [.], 2003, as shall be designated in writing by you.
The Firm Shares and Additional Shares shall be registered in such names and
in such denominations as you shall request in writing not later than one full
business day prior to the Closing Date or the applicable Option Closing Date, as
the case may be. The Firm Shares and Additional Shares shall be delivered to you
on the Closing Date or an Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefore.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than _____ (New York City time) on the date hereof and the
following further conditions:
(a) The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and on the Closing Date no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the Securities Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. The Prospectus shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) On the Closing Date, the Shares shall be rated at least "BB"
by Standard & Poor's Rating Services, a division of XxXxxx-Xxxx, Inc.,
and "BBB-" by Fitch IBCA, Inc. and the Company shall have delivered to
the Underwriters a letter dated the Closing Date, from each such
rating agency, or other evidence satisfactory to the Underwriters,
confirming that the Shares have such ratings; and there shall not have
occurred any downgrading, nor shall any notice have been
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given of any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole or the Bank and its
subsidiaries, taken as a whole, on each case, from that set forth in
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(b)(i) above and to the
effect that (i) the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date; (ii) the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date; and (iii) there has been no Company Material Adverse
Effect; and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are contemplated by the Commission.
(d) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Bank, to the effect set forth in Section 5(b)(i) above and to the
effect that (i) the representations and warranties of the Bank contained in
this Agreement are true and correct as of the Closing Date; (ii) the Bank
has complied with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied hereunder on or before the Closing
Date; and (iii) there has been no Bank Material Advese Effect.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxxx Chance US LLP, special counsel for the Company and the
Bank, dated the Closing Date, to the effect that:
(i) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not
result in a Company Material Adverse Effect.
11
(ii) The Registration Statement, at the time that it became
effective, and the Prospectus, as of its date and as of the Closing
Date (in each case, other than documents incorporated by reference and
the financial statements and other financial and statistical
information therein, as to which such counsel need not express an
opinion), complied as to form in all material respects with the
applicable requirements of the Securities Act and the rules and
regulations promulgated thereunder.
(iii) The Company is not, and upon the issuance and sale of the
Shares as contemplated by this Agreement and the application of the
net proceeds therefrom as described in the Prospectus under the
caption "Use of Proceeds" will not be, an "investment company" as that
term is defined in the Investment Company Act of 1940, as amended.
(iv) For its initial taxable year ended December 31, 1999, and
for its taxable years ended December 31, 2000, December 31, 2001 and
December 31, 2002, the Company was organized and has operated in
conformity with the requirements for qualification as a REIT under the
Code, and the Company's present and proposed method of operation, as
represented by the Company, will permit the Company to continue to so
qualify.
(v) Nothing has come to the attention of such counsel that would
lead such counsel to believe that the Prospectus (except for the
documents incorporated by reference therein and the financial
statements and other financial and statistical information therein, as
to which such counsel need not express any opinion), as of its date or
the Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(f) The Underwriters shall have received on the Closing Date an
opinion of Lionel, Xxxxxx & Xxxxxxx, special Nevada counsel to the Company
and the Bank, dated as of the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Nevada and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus.
(ii) The Bank has been duly incorporated and is validly existing
as a banking corporation in good standing under the laws of the State
of Nevada and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus.
(iii) The authorized, issued and outstanding capital stock of the
Company, as of the date hereof, is as described in the Prospectus
under the heading "Capitalization." All of the shares of common stock,
par value $0.01 per share, of the Company shown as issued and
outstanding under such descriptions (the "Common Stock") are duly
authorized and validly issued, and are fully paid
12
and non-assessable under Chapter 78 of the Nevada Revised Statutes
(the "NGCL" ). To the knowledge of such counsel, the Common Stock is
owned by the Bank free and clear of any security interest, mortgage,
pledge, lien, or encumbrance. The Common Stock conforms to the
statements relating thereto contained in the Prospectus and such
description conforms to the provisions of the Articles of
Incorporation of the Company. The relative rights, preferences,
interests and powers of the Common Stock are as set forth in the
Articles of Incorporation of the Company and Nevada law; and the
issuance of the Common Stock is not subject to the preemptive or other
similar rights of any security holder of the Company under Nevada law,
the Company's Articles of Incorporation or Bylaws or, to the knowledge
of such counsel, any contract or agreement by which the Company is
bound.
(iv) The Shares have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued and fully
paid and non-assessable; the Shares conform to the statements relating
thereto contained in the Prospectus and such description conforms to
the provisions of the Certificate of Designations; the relative
rights, preferences, interests and powers of the Shares are as set
forth in the Certificate of Designations relating thereto; and the
issuance of the Shares is not subject to the preemptive or other
similar rights of any security holder of the Company under Nevada law,
the Company's Articles of Incorporation or Bylaws or, to the knowledge
of such counsel, any contract or agreement by which the Company is
bound.
(v) The Bank Preferred Shares have been duly authorized and, when
issued pursuant to the Bank Certificate of Designations, will have
been validly issued and fully paid and non-assessable; the Bank
Preferred Shares conform to the statements relating thereto contained
in the Prospectus and such description conforms to the provisions of
the Bank Certificate of Designations; the relative rights,
preferences, interests and powers of the Bank Preferred Shares are as
set forth in the Bank Certificate of Designations; and the issuance of
the Bank Preferred Shares is not subject to the preemptive or other
similar rights of any security holder of the Bank under Nevada law,
the Bank's Articles of Incorporation or Bylaws or, to the knowledge of
such counsel, any contract or agreement by which the Bank is bound.
(vi) This Agreement has been duly authorized, executed and
delivered on behalf of each of the Company and the Bank.
(vii) The execution, delivery as of the date hereof by the
Company and the Bank of this Agreement and the consummation of the
transactions contemplated herein and in the Prospectus, (including the
issuance and sale of the Shares and the use of the proceeds from the
sale of the Shares as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company and the Bank with
their respective obligations hereunder will not, whether with or
13
without the giving of notice or passage of time or both, result in any
violation of the provisions of their respective charter or by-laws or
any applicable law, statute, rule or regulation or, to the knowledge
of such counsel, any judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over them or any of their assets, properties or
operations, except that such counsel need not express any opinion as
to any Blue Sky laws.
(viii) The certificate representing the Shares complies in all
material respects with the requirements of the NGCL and the applicable
requirements of the Articles of Incorporation and the Bylaws of the
Company.
(ix) Except as previously made or obtained, as the case may be,
to the knowledge of such counsel, no authorization, approval, consent,
order, registration, qualification or decree of any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations under this Agreement or
in connection with the issuance and sale of the Shares or the
consummation of the transactions contemplated by this Agreement
(except that such counsel need not express any opinion with respect to
any Blue Sky laws).
(x) To the knowledge of such counsel, there is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending or
threatened, against or affecting the Company or the Bank or its
subsidiaries which is not disclosed in the Prospectus which,
individually or in the aggregate, might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of this Agreement or the performance by
the Company or the Bank of its obligations hereunder.
(g) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx X. Xxxxxxxxx, Senior Vice President and General Counsel
of the Bank, dated as of the Closing Date to the effect that:
(i) The Bank is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not
result in a Bank Material Adverse Effect.
(ii) The Company has no subsidiaries.
(iii) The Bank is an insured depository under the Federal Deposit
Insurance Act and, to the knowledge of such counsel, no proceeding for
the termination or revocation of such insurance is pending or
currently threatened.
14
(iv) The execution and delivery of this Agreement by the Company
and the Bank and the consummation of the transactions contemplated
herein and in the Prospectus and compliance by the Company and the
Bank with their respective obligations under this Agreement will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of their respective property or assets
pursuant to, any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
either is a party or by which either may be bound, or to which any of
their property or assets is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect).
(v) There is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of such
counsel, threatened, against or affecting the Company or the Bank or
its subsidiaries that is not disclosed in the Registration Statement
which, individually or in the aggregate, might reasonably be expected
to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets
of the Company or the Bank or the consummation of the transactions
contemplated by this Agreement or the performance by the Company or
the Bank of its obligations hereunder.
(vi) Each of the Bank, its subsidiaries and the Company has good
and marketable title to all properties (real and personal) owned by
them, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except
such as (i) are described in the Prospectus and the Registration
Statement or (ii) do not, singly or in the aggregate, result in a
Material Adverse Effect.
(vii) No approval, authorization, consent, order or decree of any
Federal or Nevada court or governmental authority or agency is
required for the consummation by the Company or the Bank of the
transactions contemplated by this Agreement or in connection with the
sale of the Shares hereunder, except such as have been obtained or
rendered, as the case may be, or as may be required under the Federal
securities or state securities laws.
(h) The Underwriters shall have received on the Closing Date an
opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Nevada.
(ii) The Shares have been duly authorized by the Company for
issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement
against payment
15
of the consideration set forth therein, will be validly issued, fully
paid and non-assessable under chapter 78 of the NGCL and the Articles
of Incorporation or Bylaws of the Company.
(iii) The Bank Shares have been duly authorized by the Bank for
issuance and, when issued and delivered by the Bank pursuant to the
Bank's certificate of designation relating to the Bank Shares in
exchange for the Shares, will be validly issued, fully paid and
non-assessable under chapter 78 of the NGCL and the Articles of
Incorporation or Bylaws of the Bank.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and the Bank.
(v) The Registration Statement has been declared effective under
the Securities Act; to the knowledge of such counsel, the Prospectus
has been filed pursuant to Rule 424(b) of the Securities Act
Regulations in the manner and within the time period required by Rule
424(b); and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
(vi) The Registration Statement and the Prospectus (in each case,
other than documents incorporated by reference and the financial
statements and supporting schedules and other financial or statistical
data included therein or omitted therefrom, as to which no opinion is
rendered), as of their respective effective or issue dates, as the
case may be, each appeared on its face to be appropriately responsive
in all material respects to the applicable requirements of the
Securities Act and the Securities Act Regulations.
(vii) Although such counsel is not passing upon or assuming
responsibility for the accuracy, completeness or fairness of the
statements included or incorporated by reference in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein and has made no independent check or verification thereof,
nothing has come to the attention of such counsel which has led it to
believe that the Registration Statement (except for the documents
incorporated by reference therein and the financial statements and
supporting schedules and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need not
express any opinion), at the time the Registration Statement became
effective, 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 the documents incorporated by reference therein and the
financial statements and supporting schedules and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need not express any opinion), as of its date or on the
Closing Date, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary
16
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
With respect to Section 5(e)(v) and Section 5(h)(vii), Xxxxxxxx Chance US
LLP and Sidley Xxxxxx Xxxxx & Xxxx LLP may state that their beliefs are based
upon their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification,
except as specified. With respect to the opinion of Sidley Xxxxxx Xxxxx & Xxxx
LLP, such opinion may state that such counsel expresses no opinion as to the
laws, rules or regulations of any other jurisdiction or as to the municipal laws
or the laws, rules or regulations of any local agencies or governmental
authorities of or within the State of New York or as to any matters arising
thereunder or relating thereto and that to the extent that any of the matters
set forth in such counsel's opinion are governed by or arise under the laws of
the State of Nevada, such counsel has relied without independent investigation
upon the opinion of Xxxxxx Xxxxxx & Xxxxxxx as to all matters governed by or
arising under the laws of the State of Nevada, and all such matters are subject
to the qualifications, exceptions, assumptions and limitations set forth in such
opinion.
The opinions of Xxxxxxxx Chance US LLP, Lionel, Xxxxxx & Xxxxxxx and Xxxxxx
X. Xxxxxxxxx described in Sections 5(e), (f) and (g) above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
(i) The Underwriters shall have received, on each of the date hereof
and on the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from KPMG LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(j) The National Association of Securities Dealers shall not have
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) The Shares shall have been approved for quotation on the Nasdaq
National Market, subject only to official notice of issuance.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares to be sold on such Option Closing Date and other matters related to the
issuance of such Additional Shares.
17
6. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, each of the Company and the Bank, jointly and
severally covenants with each Underwriter as follows:
(a) To comply with the requirements of Rule 430A, if applicable, and
will notify you immediately (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Shares for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such
purposes. To use reasonable efforts to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) To furnish to you, without charge, [.] signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 6(d) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as you may
reasonably request.
(c) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(d) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
18
(e) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(f) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the
twelve-month period ending [.], 2004 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(g) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing
costs associated there-with, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws
as provided in Section 6(e) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or
Legal Investment memorandum, (iv) all filing fees and the reasonable fees
and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the
National Association of Securities Dealers, Inc., (v) all fees and expenses
in connection with the preparation and filing of the registration statement
on Form 8-A relating to the Shares and all costs and expenses incident to
listing the Shares on the Nasdaq National Market, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of any
transfer agent, registrar or depositary, (viii) the costs and expenses of
the Company and the Bank relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering of the
Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show, (ix)
the document production charges and expenses associated with printing this
Agreement and (x) all other costs and expenses incident to the performance
of the obligations of the Company and the Bank hereunder for which
provision is not otherwise made in this Section. It is understood, however,
that except as provided in this Section, Section 7 entitled "Indemnity and
Contribution", and the last paragraph of Section 9 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements
of their counsel, stock transfer taxes payable on resale
19
of any of the Shares by them and any advertising expenses connected with
any offers they may make.
(h) To use reasonable efforts to effect and maintain the quotation of
the Shares on the Nasdaq National Market and will file with the Nasdaq
National Market all documents and notices required by the Nasdaq National
Market.
(i) To not without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated, (i) offer, sell, contract to sell, pledge, or otherwise
dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establishing
or increasing a put equivalent position or liquidating or decreasing a call
equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") with respect to, any
securities with characteristics and terms similar to or convertible into,
or exercisable or exchangeable for, the Shares or Bank Preferred Stock; or
(ii) publicly announce an intention to effect any such transaction, for a
period of 30 days after the date of this Agreement.
(j) During the period when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act, to file all documents
required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations of the Commission thereunder.
(k) To advise the Underwriters promptly, and if requested by the
Underwriters, will confirm such advice in writing, so long as delivery of a
prospectus relating to the Shares by an underwriter or dealer may be
required under the Securities Act or the Securities Act Regulations, of (i)
any material change in the Company's or the Bank's condition (financial or
otherwise), prospects, earnings, business or properties or (ii) any new
material information relating to the Company or the Bank or relating to any
matter stated in the Prospectus or the Registration Statement which comes
to the attention of the Company.
(l) To cooperate with the Underwriters and use its reasonable best
efforts to permit the Shares to be eligible for clearance and settlement
through the facilities of DTC.
(m) To use the proceeds received by it from the sale of the Shares in
the manner specified in the Prospectus under "Use of Proceeds."
(n) The Company and the Bank will each continue to use their
respective commercially reasonable best efforts to cause the Company to
continue to qualify as a REIT under the Code.
20
7. Indemnity and Contribution. (a) Each of the Company and the Bank,
jointly and severally, agrees to indemnify and hold harmless each Underwriter,
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each
affiliate of any Underwriter within the meaning of Rule 405 under the Securities
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Bank and their respective directors and
officers who sign the Registration Statement and each person, if any, who
controls the Company or the Bank within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company and the Bank to such Underwriter,
but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 7(a) or 7(b), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party,
upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated, in the case of parties indemnified pursuant to Section 7(a),
and by the Company and the Bank, in the case of parties indemnified
pursuant to Section 7(b). The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a
21
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Bank on the one hand
and the Underwriters on the other hand from the offering of the Shares or
(ii) if the allocation provided by clause 7(d)(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 7(d)(i) above but also the
relative fault of the Company and the Bank on the one hand and of the
Underwriters 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. The relative benefits
received by the Company and the Bank on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares shall be
deemed to be in the same respective proportions as the net proceeds from
the offering of the Shares (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Public Offering Price of the Shares.
The relative fault of the Company and the Bank on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or the Bank, on the one hand or by
the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(e) The Company, the Bank and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in Section
7(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages
22
and liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company and the Bank contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter,
any person controlling any Underwriter or any affiliate of any Underwriter
or by or on behalf of the Company, the Bank, their respective officers or
directors or any person controlling the Company or the Bank and (iii)
acceptance of and payment for any of the Shares.
8. Termination. The Underwriters may terminate this Agreement by notice
given by you to the Company or the Bank, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on, or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the Nasdaq National
Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange
or the Chicago Board of Trade, (ii) trading of any securities of the Company or
the Bank shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any moratorium
on commercial banking activities shall have been declared by Federal or New York
State authorities or (v) there shall have occurred any outbreak or escalation of
hostilities, or any change in financial markets or any calamity or crisis that,
in your judgment, is material and adverse and which, singly or together with any
other event specified in this clause (v), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on a Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite
23
the names of all such non-defaulting Underwriters, or in such other proportions
as you may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on an
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option
Closing Date or (ii) purchase not less than the number of Additional Shares that
such non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
24
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
FIRST REPUBLIC PREFERRED CAPITAL CORPORATION
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
FIRST REPUBLIC BANK
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
[NAMES OF OTHER CO-MANAGERS]
Acting severally on behalf of themselves and
the several Underwriters named in Schedule I
hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
25
SCHEDULE I
Number of Firm
Shares To Be
Underwriter Purchased
Xxxxxx Xxxxxxx & Co. Incorporated ..............................
[NAMES OF OTHER CO-MANAGERS]. ..................................
[NAMES OF OTHER UNDERWRITERS]. .................................
Total .................................................
