EXHIBIT 1.2
2,500,000 Shares
(subject to increase of up to additional 375,000 shares
in the event of an oversubscription)
LIFE FINANCIAL CORP.
(A DELAWARE CORPORATION)
Common Stock
($0.01 par value per share)
UNDERWRITING AGREEMENT
_______________, 1997
Friedman, Billings, Xxxxxx & Co., Inc.
Lakeshore Towers
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
Life Financial Corp., a Delaware corporation (the "Company"), confirms its
agreement with you whereby the Company proposes to issue and sell to you an
aggregate of 2,500,000 shares (the "Firm Common Shares") of its authorized but
unissued common stock, $0.01 par value per share (the "Common Stock"). In
addition, the Company agrees to grant to you an option to purchase up to an
aggregate of 375,000 additional shares of Common Stock (the "Optional Common
Shares") as provided in Section 1 hereof. The Firm Common Shares and, to the
extent such option is exercised, the Optional Common Shares are hereinafter
collectively referred to as the "Common Shares."
You have advised the Company that you propose to make a public offering of
the Common Shares on the effective date of the Registration Statement (as
hereinafter defined) or as soon thereafter as in your judgment is advisable (the
"Offering").
The Company hereby confirms its agreement with you as follows:
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1. Purchase, Sale and Delivery of Common Shares. On the basis of the
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representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, (i) the Company agrees to issue and sell
to you an aggregate of 2,500,000 of the Firm Common Shares and (ii) you agree to
purchase from the Company such Firm Common Shares. The purchase price per share
to be paid by you to the Company shall be $____ per share.
The closing of the transactions contemplated by this Agreement shall be
held at 9:00 a.m. at the offices of Xxxxxxx, Xxxxxx & Xxxxxxxx, Washington,
D.C., (or such other place as may be agreed upon by the Company and the
Representative) on the third (or, if the purchase set forth in the above
paragraph is determined after 4:30 p.m., Washington, D.C. time, the fourth)
business day following the first date that any of the Common Shares are released
by you for sale to the public (the "First Closing Date"); provided, however,
that if the Prospectus (as hereinafter defined) is at any time prior to the
First Closing Date recirculated to the public, the First Closing Date shall
occur upon the later of the third (or, if the purchase set forth in the above
paragraph is determined after 4:30 p.m., Washington, D.C. time, the fourth)
business day following the first date that any of the Common Shares are released
by you for sale to the public or the date that is 48 hours after the date that
the Prospectus has been so recirculated.
Delivery of certificates for the Firm Common Shares shall be made by or on
behalf of the Company to you, for your account, against payment by you for your
account of the purchase price therefor by wire transfer or certified or official
bank check payable in next day funds to the order of the Company. The
certificates for the Firm Common Shares shall be registered in such names and
denominations as you shall have requested at least two full business days prior
to the First Closing Date, and shall be made available for checking and
packaging on the business day preceding the First Closing Date at any office of
U.S. Stock Transfer Corporation designated by you. Time shall be of the
essence, and delivery at the time and place specified in this Agreement is a
further condition to your obligation.
In addition, on the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company hereby grants to you an option to purchase any amount up to an aggregate
of 375,000 Optional Common Shares at the purchase price per share to be paid for
the Firm Common Shares, for use solely in covering any over-allotments made for
your account in the sale and distribution of the Firm Common Shares. The option
granted hereunder may be exercised at any time (but not more than once) within
30 days after the first date that any of the Common Shares are released by you
for sale to the public, upon notice by you to the Company setting forth the
aggregate number of Optional Common Shares as to which you are exercising the
option, the names and denominations in which the certificates for such shares
are to be registered and the time and place at which such certificates will be
delivered. Such time of delivery (which may not be earlier than the First
Closing Date), being herein referred to as the "Second Closing Date," shall be
determined by you, but if at any time other than the First Closing Date shall
not be earlier than three nor later than five full business days after delivery
of such notice of exercise. Certificates for the Optional Common Shares will be
made available for checking and packaging on the business day preceding the
Second Closing Date at any office of Xxxxx Fargo Bank,
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N.A. (Transfer Agent Department) designated by you. The manner of payment for
and delivery of the Optional Common Shares shall be the same as for the Firm
Common Shares purchased from the Company as specified in the two preceding
paragraphs. At any time before lapse of the option, you may cancel such option
by giving written notice of such cancellation to the Company.
Subject to the terms and conditions hereof, you agree to make a public
offering of the Common Shares as soon after the effective date of the
Registration Statement (as hereafter defined) as in your judgment is advisable
and at the public offering price set forth on the cover page of, and on the
terms set forth in, the Prospectus.
2. Representations and Warranties of the Company. The Company represents
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and warrants to you as of the date hereof as follows:
(a) A registration statement on Form S-1 (File No. 333-______) with
respect to the Common Shares has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations of the Securities and Exchange Commission (the
"Commission") promulgated thereunder (the "Rules and Regulations"), and has been
filed with the Commission. The Company has prepared and has filed or proposes to
file prior to the effective date of such registration statement an amendment or
amendments to such registration statement, which amendment or amendments have
been or will be similarly prepared. There has been delivered to you one signed
copy of such registration statement and amendments, together with two copies of
each exhibit filed therewith. Conformed copies of such registration statement
and amendments (but without exhibits) and of the related Preliminary Prospectus
(as defined below) have been delivered to you in such reasonable quantities as
you have requested. The Company will also file with the Commission one of the
following: (i) prior to effectiveness of such registration statement, a further
amendment thereto, including the form of final prospectus, or (ii) a final
prospectus in accordance with Rules 430A and 424(b) of the Rules and
Regulations. As filed, such amendment and form of final prospectus, or such
final prospectus, shall include all Rule 430A Information (as defined below)
and, except to the extent that you shall agree to a modification, shall be in
all substantive respects in the form furnished to you prior to the date and time
that this Agreement was executed and delivered by the parties hereto or, to the
extent not completed at such date and time, shall contain only such specific
additional information and other changes (beyond that contained in the latest
Preliminary Prospectus) as the Company shall have previously advised you in
writing would be included or made therein.
The term "Registration Statement" as used in this Agreement shall mean such
registration statement at the time such registration statement becomes effective
and, in the event any post-effective amendment thereto becomes effective prior
to the First Closing Date, shall also mean such registration statement as so
amended; provided, however, that such term shall also include all Rule 430A
Information deemed to be included in such registration statement at the time
such registration statement becomes effective as provided by Rule 430A of the
Rules and Regulations. The term "Preliminary Prospectus" shall mean any
preliminary prospectus referred to in the preceding paragraph and any
preliminary prospectus included in the Registration Statement at the
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time it becomes effective that omits Rule 430A Information. The term
"Prospectus" as used in this Agreement shall mean the prospectus relating to the
Common Shares in the form in which it is first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations or, if no filing pursuant
to Rule 424(b) of the Rules and Regulations is required, shall mean the form of
final prospectus included in the Registration Statement at the time such
registration statement becomes effective. The term "Rule 430A Information" means
information with respect to the Common Shares and the offering thereof permitted
to be omitted from the Registration Statement when it becomes effective,
pursuant to Rule 430A of the Rules and Regulations.
(b) The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus, and the most recent Preliminary Prospectus
has conformed in all material respects to the requirements of the Act and the
Rules and Regulations and, as of its date, has not included any untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and at the time the Registration Statement becomes
effective, and at all times subsequent thereto up to and including each Closing
Date hereinafter mentioned, the Registration Statement and the Prospectus, and
any amendments or supplements thereto, will contain all material statements and
information required to be included therein by the Act and the Rules and
Regulations and will conform to the requirements of the Act and the Rules and
Regulations, and neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, will include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, no representation or warranty
contained in this subsection 2(b) shall be applicable to information contained
in or omitted from any Preliminary Prospectus, the Registration Statement, the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
you or any Underwriter specifically for use in the preparation thereof.
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus 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 the
State of California and in all other jurisdictions 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 would not have a
material adverse effect on the financial condition, results of operations or
business of the Company, the Bank (as defined below) and the other Subsidiaries
(as defined below), taken as a whole.
(d) The only subsidiaries of the Company are Life Savings Bank, Federal
Savings Bank (the "Bank"), ___________________ and ___________________
(individually, a "Subsidiary" and collectively, the "Subsidiaries").
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(e) The Bank has been duly organized and is validly existing as a federal
savings bank in good standing under the laws of the United States, and each of
the other Subsidiaries has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
respective incorporation. All of the issued and outstanding capital stock of
each of the Subsidiaries has been duly authorized and validly issued, is fully
paid and nonassessable, and is owned by the Company in each case free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or equity,
except for ______________.
(f) Each of the Subsidiaries has full corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus; each of the Subsidiaries is in possession of and is operating
in compliance in all material respects with all authorizations, licenses,
permits, consents, certificates, orders and other governmental authorizations
material to or required for the conduct of its business, all of which are valid
and in full force and effect, and has received no notice of any proceeding or
action relating to the revocation or modification of any such authorization,
license, permit, consent, certificate, order or other governmental
authorization; each of the Subsidiaries is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in which the
ownership or leasing of properties or the conduct of its business requires such
qualification, except for jurisdictions in which the failure to so qualify would
not have a material adverse effect on the financial condition, results of
operations or business of the Company and the Subsidiaries, taken as a whole;
and neither the Company nor any of the Subsidiaries has received notice of any
proceeding in any such jurisdiction revoking, limiting or curtailing, or seeking
to revoke, limit or curtail, such power and authority or qualification.
(g) The deposits of the Bank are insured by the Federal Deposit Insurance
Corporation ("FDIC") up to legally applicable limits, and no proceedings for the
termination or revocation of such insurance are pending or, to the best
knowledge of the Company, threatened, and no approvals by or filings with the
Office of Thrift Supervision ("OTS"), FDIC or Board of Governors of the Federal
Reserve System ("Federal Reserve Board") are necessary to consummate the
Offering, except such as have already been obtained and are in effect.
(h) The Company has, and upon consummation of the Offering will have, an
authorized capitalization as set forth under the heading "Description of Capital
Stock" in the Prospectus. All of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully
paid and nonassessable. Except as described in the Prospectus, no Common Stock
is issued and outstanding and no stockholder of the Company or other person has
any right, option or warrant to acquire any Common Stock. Except as disclosed
in or contemplated by the Prospectus and the financial statements of the Company
and the related notes thereto included in the Prospectus, the Company does not
have outstanding any options to purchase, or any preemptive rights or other
rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, convertible securities or
obligations. The description of the Company's stock option, stock bonus and
other stock plans or arrangements, and the options or other rights to be
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granted and exercised thereunder set forth in the Prospectus, accurately and
fairly presents the information required to be shown with respect to such plans,
arrangements, options and rights.
(i) The Common Shares to be sold by the Company hereunder have been duly
authorized and, when issued, delivered and paid for in the manner set forth in
this Agreement, will be validly issued, fully paid and nonassessable, and will
conform to the description thereof contained in the Prospectus. No preemptive
rights or other rights to subscribe for or purchase exist with respect to sale
of the Common Shares by the Company pursuant to this Agreement. The
certificates used to evidence shares of Common Stock are in due and proper form.
(j) No approval, consent or authority of the stockholders of the Company
or the Board of Directors of the Company or any governmental agency or any other
third party will be required for the issuance and sale of the Common Shares to
be sold by the Company as contemplated herein or the entering into of this
Agreement, except such as have already been obtained.
(k) The Company has full legal right, power and authority to enter into
this Agreement and to perform the transactions contemplated hereby. This
Agreement has been duly and validly authorized by the Company and upon due
execution and delivery by the Company and the other parties thereto will
constitute the valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to limitations imposed by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity) and subject to any bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other laws, now
or hereafter in effect, relating to or limiting creditors' rights generally. The
making and performance of this Agreement by the Company and the consummation of
the transactions herein contemplated will not violate any provisions of the
Certificate of Incorporation or Bylaws, or other organizational document of the
Company or any of the Subsidiaries, and will not conflict with, result in the
breach or violation of, or constitute, either by itself or upon notice or the
passage of time or both, a default under any agreement, mortgage, deed of trust,
lease, franchise, license, indenture, permit or other instrument to which the
Company or any of the Subsidiaries is a party or by which the Company, any of
the Subsidiaries or any of their respective properties may be bound or affected,
any statute or any authorization, judgment, decree, order, rule or regulation of
any court or any regulatory body, administrative agency or other governmental
body applicable to the Company, any of the Subsidiaries or any of their
respective properties, except where any violation, conflict, breach or default,
whether individually or in the aggregate, would not have a material adverse
effect on the condition (financial or otherwise), business, properties, result
of operations, management or prospects of the Company or the Subsidiaries, taken
as a whole (hereinafter, a "Material Adverse Effect"). No consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body is required for the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby,
except for compliance with the Act, the Blue Sky laws applicable to the public
offering of the Common Shares by the Underwriter and the clearance of such
offering with the National Association of Securities Dealers, Inc. (the "NASD").
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(l) The accountants, Xxxxx Xxxxxxxx, LLP, Deloitte & Touche, LLP and Price
Waterhouse LLP, each of whom certified portions of the financial statements and
supporting schedules included in the Registration Statement, are each
independent public accountants within the meaning of the Code of Ethics of the
American Institute of Certified Public Accountants; and such accountants are,
with respect to the Company and each of the Subsidiaries, independent certified
public accountants as required by the Act and the Rules and Regulations.
(m) The financial statements and schedules of the Company, and the related
notes thereto, included in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company as of the respective
dates of such financial statements and schedules, and the consolidated results
of operations and changes in financial position of the Company for the
respective periods covered thereby. Such statements, schedules and related
notes have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis as certified by the independent
accountants named in subsection 2(l). No other financial statements or
schedules are required to be included in the Registration Statement. The other
financial, statistical and pro forma information and related notes included in
the Registration Statement and the Prospectus (i) present fairly the information
shown therein on a basis consistent (except as otherwise noted therein) with the
audited financial statements of the Company included therein and (ii) are in
compliance in all material respects with the requirements of the Act.
(n) Neither the Company nor any of the Subsidiaries are (i) in violation
or default of any provision of their respective Certificate of Incorporation,
Charter or Articles of Incorporation, as the case may be, or Bylaws or other
organizational documents or (ii) except as disclosed in the Prospectus and
except as to defaults which individually or in the aggregate would not have a
Material Adverse Effect, in breach of or default with respect to any provision
of any agreement, judgment, decree, order, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument to which it is a party
or by which it or any of its properties are bound and, except as to defaults
which individually or in the aggregate would not have a Material Adverse Effect,
there does not exist any state of facts which constitutes an event of default on
the part of the Company as defined in such documents or which, with notice or
lapse of time or both, would constitute such an event of default.
(o) There are no contracts or other documents required to be described in
the Registration Statement or to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations which have not been
described or filed as required. The contracts so described in the Prospectus
are in full force and effect on the date hereof; the descriptions thereof or
references thereto are correct in all material respects; and except as to
defaults that individually or in the aggregate would not be material to the
Company, neither the Company, any of the Subsidiaries, nor, to the knowledge of
the Company, any other party is in material breach of or default under any of
such contracts.
(p) Except as disclosed in the Prospectus, there are no legal or
governmental actions, suits or proceedings pending or, to the knowledge of the
Company, threatened to which the Company or
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any of the Subsidiaries is or may be a party or of which property owned or
leased by the Company or any of the Subsidiaries is or may be the subject, which
actions, suits or proceedings might, individually or in the aggregate, prevent
or adversely affect the transactions contemplated by this Agreement or are
likely to result in a Material Adverse Effect, and no labor disturbance by any
employee of the Company or any of the Subsidiaries exists or is imminent which
might be expected to affect adversely the Company's condition, properties,
business, results of operations or prospects. Except as disclosed in the
Prospectus, no enforcement proceeding, whether formal or informal, has been
commenced against the Company or any of the Subsidiaries by the OTS, the FDIC
or, to the Company's knowledge, any other governmental authority, nor have any
such proceedings been instituted, threatened or recommended. Except as disclosed
in the Prospectus, neither the Company, any of the Subsidiaries, nor any of
their respective officers or directors is a party or subject to the provisions
of any regulatory action, injunction, judgment, decree or order of any court,
regulatory body, administrative agency or other governmental body affecting the
business of the Company or any of the Subsidiaries.
(q) Except as disclosed in the Prospectus, the Company and each of the
Subsidiaries have good and marketable title to all of their respective
properties and assets, free and clear of all liens, charges, encumbrances or
restrictions, except such as would not materially adversely affect the value of
such properties and assets and would not interfere with the use made or proposed
to be made of such properties and assets by the Company or a Subsidiary; all of
the leases and subleases material to the business of the Company or any of the
Subsidiaries or under which the Company or any of the Subsidiaries holds
properties described in the Prospectus are in full force and effect; and the
Company and the Subsidiaries have no notice of any material claim of any sort
which has been asserted by anyone adverse to the rights of the Company or a
Subsidiary as owner or as lessee or sublessee under any of the leases or
subleases mentioned above, or materially affecting or questioning the rights of
the Company or a Subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease. Except as disclosed in the
Prospectus and other than such leases and properties as are immaterial in the
aggregate, the Company and the Subsidiaries own or lease all properties as are
necessary to their respective operations as now conducted or as proposed to be
conducted.
(r) Since the respective dates as of which information is given in the
Registration Statement and Prospectus, and except as described in or
specifically contemplated by the Prospectus: (i) neither the Company nor any of
the Subsidiaries has incurred any material liabilities or obligations, indirect,
direct or contingent, or entered into any material verbal or written agreement
or other transaction whether or not arising in the ordinary course of business
or which could result in a material reduction in the future earnings of the
Company; (ii) there has not been any material increase in the consolidated long-
term debt of the Company or in the aggregate dollar or principal amount of the
assets held by the Company or the Bank which are classified as substandard,
doubtful or loss or loans which are 90 days or more past due or real estate
acquired by foreclosure; (iii) there has not been any material adverse change in
the condition (financial or otherwise), business, properties, results of
operations or prospects of the Company or any of the Subsidiaries, other than
changes resulting from changes in the economy generally; (iv) there has not been
any material
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adverse change in the aggregate dollar amount of the deposits or consolidated
net worth or spread of the Company or the Bank; (v) there has been no material
adverse change in the relationship between the Company or any of its
Subsidiaries and their respective insurance carriers, including, without
limitation, cancellation or other termination of a fidelity bond or any other
type of insurance coverage; (vi) there has been no material change in the
management of the Company or any of the Subsidiaries compared to the information
disclosed in the Prospectus; (vii) neither the Company nor any of the
Subsidiaries have sustained any material loss or interference with their
respective businesses or properties from fire, flood, windstorm, earthquake,
accident or other calamity, whether or not covered by insurance; (viii) the
Company has not paid or declared any dividends or other distributions with
respect to its capital stock and the Company is not in default in the payment of
principal or interest on any outstanding debt obligations; and (ix) there has
not been any change in the capital stock of the Company (other than upon the
sale of the Common Shares hereunder and pursuant to the Reorganization, as
described in the Prospectus).
(s) Except as disclosed in or specifically contemplated by the Prospectus,
the Company and the Subsidiaries have sufficient trademarks, trade names, patent
rights, copyrights, licenses, approvals and governmental authorizations to
conduct their respective businesses as now conducted; the expiration of any
trademarks, trade names, patent rights, copyrights, licenses, approvals or
governmental authorizations would not have a Material Adverse Effect; and the
Company has no knowledge of any material infringement by it of trademark, trade
name rights, patent rights, copyrights, licenses, trade secret or other similar
rights of others, and, to the Company's knowledge, there is no claim being made
against the Company or any of the Subsidiaries regarding trademark, trade name,
patent, copyright, license, trade secret or other infringement which could have
a Material Adverse Effect.
(t) Neither the Company nor any of the Subsidiaries have been advised or
have any reason to believe that the Company or any of the Subsidiaries is not
conducting business in compliance with all applicable laws, rules and
regulations; except as disclosed in the Prospectus or where failure to be so in
compliance would not have a Material Adverse Effect or where it is already in
the process of complying.
(u) Except as disclosed in the Prospectus, neither the Company nor any of
the Subsidiaries is in violation of any directive from the FDIC, the OTS or any
other governmental authority, including _______________________________, and the
Company and the Subsidiaries are in compliance with all federal and state laws
and regulations that regulate or relate to its business, including, without
limitation, the Financial Institutions Recovery, Reform and Enforcement Act of
1989 ("FIRREA"), the Federal Deposit Insurance Act (the "FDIA"), the National
Housing Act (the "NHA"), the Federal Deposit Insurance Corporation Improvement
Act of 1991 ("FDICIA") and all other applicable laws and regulations where the
failure to comply would have a Material Adverse Effect.
(v) The Company and the Subsidiaries have filed or caused to be filed all
material federal, state and foreign income and franchise tax returns and have
paid all taxes shown as due
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thereon; and the Company has no knowledge of any tax deficiency which has been
asserted or threatened in writing against the Company or any of the Subsidiaries
which would have a Material Adverse Effect on the Company or any of the
Subsidiaries.
(w) Neither the Company nor any of the Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(x) The Company has not distributed any offering material in connection
with the offering and sale of the Common Shares other than the Preliminary
Prospectus, the Prospectus, the Registration Statement and the other materials
permitted by the Act.
(y) The Company and the Subsidiaries maintain insurance of the types and
in the amounts generally deemed adequate for their businesses, including, but
not limited to, insurance covering real and personal property owned or leased by
the Company or the Subsidiaries against theft, forgery, damage, destruction,
acts of vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
(z) Neither the Company nor any of the Subsidiaries has at any time during
the last five years (i) made any unlawful contribution to any candidate for
foreign office, or failed to disclose fully any contribution in violation of
law, or (ii) made any payment to any federal or state governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof, the effect of which would have a Material Adverse
Effect.
(aa) All material transactions between the Company or the Subsidiaries and
their respective officers and directors and their affiliates have been
accurately disclosed in the Prospectus; and the terms of such transactions are
fair to the Company or the Subsidiaries, as the case may be.
(bb) Except as disclosed in the Prospectus or Registration Statement, the
Company has not: (i) placed any securities within the last 18 months; (ii) had
any material dealings with any member of the NASD or any person related to or
associated with such member, other than discussions and meetings relating to the
proposed Offering and routine purchases and sales of U.S. Government and agency
securities and other assets; (iii) entered into a financial or management
consulting agreement except as contemplated hereunder and except for the
engagement letter with the Representative, dated ________________; or (iv)
engaged any intermediary between the Representative and the Company in
connection with the Offering, and no person is being compensated in any manner
for such service.
(cc) The Company has not taken, directly or indirectly, any action designed
to cause or result in, or which has constituted or which reasonably might be
expected to constitute, the stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of the Common Stock.
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(dd) The Company has not relied upon you or your legal counsel for any
legal, tax or accounting advice in connection with the Offering (except with
respect to the qualification of the Shares for offering and sale under the
securities laws of certain states).
(ee) To their respective knowledge, none of the Company or any of the
Subsidiaries is in violation of any Federal, state, local or foreign law or
regulation relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), including, without limitation, laws
and regulations relating to emissions, discharges, releases or threatened
releases of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum and petroleum products ("Materials of
Environmental Concern"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, "Environmental Laws"), which
violation includes, but is not limited to, noncompliance with any permits or
other governmental authorizations required for the operation, as now conducted
or proposed to be conducted (as described in the Prospectus), of the business of
the Company or any of the Subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, and none of the Company or
any of the Subsidiaries has received any communication (written or oral),
whether from a governmental authority, citizens group, employee or otherwise,
that alleges that the Company or any of the Subsidiaries is in violation of any
such Environmental Laws, and there are no circumstances known to the Company
that are reasonably likely to lead to such violation in the future. In
addition, except as set forth in the Prospectus, there is no claim, action,
cause of action, investigation or notice (written or oral) by any person or
entity alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property damages,
personal injuries, attorney's fees or penalties arising out of, based on or
resulting from (a) the presence or release into the environment of any Material
of Environmental Concern at any location owned, controlled, leased, subject to
an option to lease or purchased or operated by the Company or any of the
Subsidiaries, now or in the past, or (b) circumstances forming the basis of any
violation or alleged violation of any Environmental Law (collectively,
"Environmental Claims"), pending or threatened against the Company or any of the
Subsidiaries or, to the best knowledge of the Company, against any person or
entity whose liability for any Environmental Claim the Company or any of the
Subsidiaries has retained or assumed either contractually or by operation of
law, except as set forth in the Prospectus or as would not result in a Material
Adverse Effect. There are no actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the release, emission,
discharge, presence or disposal of any Material of Environmental Concern, that
could result in a violation of any Environmental Law or form the basis of any
potential Environmental Claim against the Company or any of the Subsidiaries or
against any person or entity whose liability for any Environmental Claim the
Company or any of the Subsidiaries has retained or assumed either contractually
or by operation of law.
(ff) None of the Company or any of the Subsidiaries has violated any
Federal, state or local law relating to discrimination in the hiring, promotion
or pay of employees, any applicable wage or hour laws, or any provisions of the
Employee Retirement Income Security Act of 1974
11
("ERISA"), or the rules and regulations promulgated thereunder. There is (i) no
significant unfair labor practice complaint pending against the Company or any
of the Subsidiaries or, to the best knowledge of the Company, threatened against
any of them, before the National Labor Relations Board or any state or local
labor relations board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against the Company or any of the Subsidiaries and, to the best
knowledge of the Company, threatened against any of them, (ii) no labor dispute
in which the Company or any of the Subsidiaries is involved nor, to the best
knowledge of the Company, is any labor dispute imminent, other than routine
disciplinary and grievance matters; the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its principal customers or
vendors and (iii) no union representation question existing with respect to the
employees of the Company or any of the Subsidiaries and, to the best knowledge
of the Company, no union organizing activities are taking place, except (with
respect to any matter specified in clause (i), (ii) or (iii) above, singly or in
the aggregate) such as would not have a Material Adverse Effect.
Any certificate signed by any officer of the Company and delivered to you
or to your counsel shall be deemed a representation and warranty by the Company
to you as to the matters covered thereby. Any certificate delivered by the
Company to its counsel for purposes of enabling such counsel to render the
opinions referred to in Section 6(c) will also be furnished to the Underwriter
and its counsel and shall be deemed to be additional representations and
warranties by the Company to the Underwriter as to the matters covered thereby
and the Underwriter and its counsel are entitled to rely thereon.
3. Representations and Warranties of the Underwriter. You represent and
-------------------------------------------------
warrant to the Company as of the date hereof that the information set forth in
the Prospectus (i) on the cover page of the Prospectus with respect to price,
underwriting discounts and commissions and terms of the Offering, (ii) on the
inside cover page with respect to stabilization and (iii) under the caption
"Underwriting of Public Offering" in the Prospectus was furnished to the Company
by you and on your behalf for use in connection with the preparation of the
Registration Statement and the Prospectus and is complete and correct in all
material respects.
4. Covenants of the Company. The Company covenants and agrees that:
------------------------
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereto, if not effective at the time and date that
this Agreement is executed and delivered by the parties hereto, to become
effective. If the Registration Statement has become or becomes effective
pursuant to Rule 430A of the Rules and Regulations, or the filing of the
Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations,
the Company will file the Prospectus, properly completed, pursuant to the
applicable paragraph of Rule 424(b) of the Rules and Regulations within the time
period prescribed and will provide evidence satisfactory to you of such timely
filing. The Company will promptly advise you in writing (i) of the receipt of
any comments of the Commission, (ii) of any request of the Commission for
amendment of or supplement to the Registration Statement (either before or after
it becomes effective), any
12
Preliminary Prospectus or the Prospectus or for additional information, (iii)
when the Registration Statement shall have become effective and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution of any proceedings for that
purpose. If the Commission shall enter any such stop order at any time, the
Company will use its best efforts to obtain the lifting of such order at the
earliest possible moment. The Company will not file any amendment or supplement
to the Registration Statement (either before or after it becomes effective), any
Preliminary Prospectus or the Prospectus of which you have not first been
furnished with a copy a reasonable time prior to such filing or to which you
reasonably object or which is not in compliance with the Act or the Rules and
Regulations.
(b) The Company will prepare and file with the Commission, promptly upon
your request, any amendments or supplements to the Registration Statement or the
Prospectus which in your reasonable judgment may be necessary or advisable to
enable you to continue the distribution of the Common Shares and will use its
best efforts to cause the same to become effective as promptly as possible. The
Company will fully and completely comply with the provisions of Rule 430A of the
Rules and Regulations with respect to information omitted from the Registration
Statement in reliance upon such Rule.
(c) The Company will, if requested by you, prepare a Term Sheet that
complies with the requirements of Rule 434 under the Rules and Regulations, and
the Company will provide you with copies of such Term Sheet and the form of
Prospectus used in reliance on Rule 434, in such number as you may reasonably
request. The Company will timely file the Term Sheet, if any, with the
Commission pursuant to and in accordance with subparagraph (7) of Rule 424(b).
The Company will advise you promptly of any such filing pursuant to Rule 424(b)
and shall provide evidence satisfactory to you of such timely filing.
(d) If, at any time during the nine-month period referred to in Section
10(a)(3) of the Act during which a prospectus relating to the Common Shares is
required to be delivered under the Act, any event occurs, as a result of which
the Prospectus, including any amendments or supplements, would include an untrue
statement of a material fact, or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances then existing, not misleading, or if it is necessary at any time
to amend the Prospectus, including any amendments or supplements, to comply with
the Act or the Rules and Regulations, the Company will promptly advise you
thereof and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement or
omission or an amendment or supplement which will effect such compliance and
will use its best efforts to cause the same to become effective as soon as
possible; and, in case you are required to deliver a Prospectus after such nine-
month period, the Company upon request, but at your expense, will promptly
prepare such amendment or amendments to the Registration Statement and such
Prospectus or Prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act.
13
(e) As soon as practicable, but not later than 45 days after the end of the
first quarter ending after one year following the "effective date of the
Registration Statement" (as defined in Rule 158(c) of the Rules and
Regulations), the Company will make generally available to its security holders
an earnings statement (which need not be audited) covering a period of 12
consecutive months beginning after the effective date of the Registration
Statement which will satisfy the provisions of the last paragraph of Section
11(a) of the Act.
(f) During such period as a Prospectus is required by law to be delivered
in connection with sales by an Underwriter or dealer, the Company, at its
expense, but only for the nine-month period referred to in Section 10(a)(3) of
the Act, will furnish to you or mail to your order copies of the Registration
Statement, the Prospectus, the Preliminary Prospectus and all amendments and
supplements to any such documents in each case as soon as available and in such
reasonable quantities as you may request, for the purposes contemplated by the
Act.
(g) The Company shall cooperate with you and your counsel to qualify or
register the Common Shares for sale under (or obtain exemptions from the
application of) the Blue Sky laws of such jurisdictions as you designate, will
comply with such laws and will continue such qualifications, registrations and
exemptions in effect so long as reasonably required for the distribution of the
Common Shares. The Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such
jurisdiction where it is not presently qualified or where it would be subject to
taxation as a foreign corporation. The Company will advise you promptly of the
suspension of the qualification or registration of (or any such exemption
relating to) the Common Shares for offering, sale or trading in any jurisdiction
or any initiation or threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such qualification, registration
or exemption, the Company, with your cooperation, will use its best efforts to
obtain the withdrawal thereof.
(h) The Company shall promptly prepare and file with the Commission, from
time to time, such reports as may be required to be filed by the Act and the
Exchange Act including, without limitation, reports with respect to the sale of
the Common Shares and the application of the proceeds thereof as may be required
in accordance with Rule 463 under the Act.
(i) During the period of five years after the date of this Agreement, the
Company will furnish to you: (i) at the same time as such are furnished to its
stockholders, copies of the Annual Report of the Company containing the
consolidated balance sheet of the Company and Subsidiaries as of the close of
such fiscal year and consolidated statements of income, stockholders' equity and
cash flows for the year then ended and the opinion thereon of the Company's
independent public accountants; (ii) as soon as practicable after the filing
thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, Current Report on Form 8-K or other report filed by the
Company with the Commission, the NASD or any securities exchange; (iii) as soon
as available, copies of any report or communication of the Company mailed
generally to holders of its Common Stock; (iv) as soon as practicable after the
filing thereof, of each non-confidential report or other statement or document
filed by the Company with the Commission,
14
or with any national securities exchange or quotation system on which any
securities of the Company may be listed or quoted; and (v) from time to time,
such other non-confidential information concerning the Company as the
Underwriter may reasonably request.
(j) During the period of 180 days after the first date that any of the
Common Shares are released by you for sale to the public, the Company will not,
without your prior written consent (which consent may be withheld at your sole
discretion), issue, offer, sell, grant options to purchase or otherwise dispose
of any of the Company's equity securities or any other securities convertible
into or exchangeable with its Common Stock or other equity security, other than
options or other awards granted under the Company's ______ Stock Option Plan,
Employee Savings Plan or ___________.
(k) The Company will apply the net proceeds of the sale of the Common
Shares sold by it substantially in accordance with its statements under the
caption "Use of Proceeds" in the Prospectus.
(l) To the extent required by law, or applicable rules and regulations,
the Company will promptly take all steps necessary to register its Common Stock
under Section 12(g) of the Exchange Act.
(m) The Company will use its best efforts to list, subject to notice of
issuance, the Common Shares as a National Market System security on the Nasdaq
Stock Market.
(n) The Company will use its best efforts to ensure that the Bank will
maintain a system of internal accounting controls as required under applicable
law and the rules and regulations of the OTS and FDIC.
(o) The Company will not, directly or indirectly, distribute prior to the
First Closing Date any offering material in connection with the offering and
sale of the Common Shares other than the Preliminary Prospectus, the Prospectus,
the Registration Statement and the other materials permitted by the Act.
(p) The Company will not take, directly or indirectly, any action designed
to cause or result in, or which will or might be expected to constitute, the
stabilization or manipulation of the price of the Common Stock to facilitate the
sale or resale of the Common Shares.
(q) The Company will not rely upon you or your legal counsel for any
legal, tax or accounting advice in connection with the Offering, except with
respect to the qualification of the Common Shares for offering and sale under
the securities laws of certain states.
You may, in your sole discretion, waive in writing the performance by the
Company of any one or more of the foregoing covenants or extend the time for
their performance.
15
5. Payment of Expenses
-------------------
(a) Whether or not the transactions contemplated hereunder are consummated
or this Agreement remains effective or is terminated, the Company agrees to pay
all costs, fees and expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions contemplated
hereby, including without limiting the generality of the foregoing, (i) all
expenses incident to the issuance and delivery of the Common Shares (including
all printing and engraving costs), (ii) all fees and expenses of the registrar
and transfer agent of the Common Stock, (iii) all necessary issue, transfer and
other stamp taxes in connection with the issuance and sale of the Common Shares,
(iv) all fees and expenses of the Company's counsel and the Company's
independent accountants, (v) all costs and expenses incurred in connection with
the preparation, printing, filing, shipping and distribution of the Registration
Statement, each Preliminary Prospectus and the Prospectus (including all
exhibits and financial statements) and all amendments and supplements provided
for herein, (vi) where applicable, all filing fees, attorney's fees and
expenses incurred by the Company or the Underwriter in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Common Shares for offer and sale under
the Blue Sky laws (vii) the filing fee of the National Association of Securities
Dealers, Inc., (viii) all the costs and expenses incurred by the Company in
making road show presentations with respect to the Offering, (ix) all costs of
preparing, printing and distributing bound volumes of the transaction documents
for the Underwriter and its counsel, and (x) all other fees, costs and expenses
referred to in Item 13 of the Registration Statement. Except as provided in
this Section 5, and Section 8 hereof, the Underwriter shall pay all of its own
expenses, including the fees and disbursements of its own counsel (excluding
those relating to qualification, registration or exemption under the Blue Sky
laws and the Blue Sky memorandum referred to above).
(b) Whether or not the transactions contemplated hereunder are consummated
or this Agreement remains effective or is terminated, in addition to payment of
the expenses set forth in Section 5(a), the Company agrees to reimburse you for
your reasonable out-of pocket expenses in connection with the performance of
your activities under this Agreement, including, but not limited to, costs
relating to printing, facsimile, courier service, direct computer expenses,
accommodations, travel, reasonable fees and expenses of your outside legal
counsel and any other advisors, accountants, appraisers, or the like, blue sky
fees and expenses, including reasonable fees and disbursements of counsel, and
your road show related costs and expenses. Such reimbursed expenses shall not
exceed $_______ without the prior written permission of the Company. You shall
submit a detailed statement of your actual expenses to the Company at the First
Closing Date or from time-to-time before or within 30 days after the First
Closing Date, and the Company shall reimburse you therefor in full within 14
days of receipt of such statement or statements. For purposes of this Section 5,
you shall be deemed to have incurred expenses when they are billed, regardless
of whether such expenses have been paid. Nothing contained in this Section 5
shall affect or limit your right to receive all expenses (including counsel fees
and expenses) pursuant to the indemnification provisions of this Agreement.
16
6. Conditions to the Obligations of the Underwriter. Your obligations to
------------------------------------------------
purchase and pay for the Firm Common Shares on the First Closing Date and the
Optional Common Shares on the Second Closing Date shall be subject to the
accuracy in all material respects of the representations and warranties on the
part of the Company herein set forth as of the date hereof and as of the First
Closing Date or the Second Closing Date, as the case may be, to the accuracy in
all material respects of the statements of Company officers made pursuant to the
provisions hereof, to the performance in all material respects by the Company of
its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later than
5:00 p.m., Washington, D.C. Time, on the date of this Agreement, or at such
later time as shall have been consented to by you; if the filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of
the Rules and Regulations, the Prospectus shall have been filed in the manner
and within the time period required by Rule 424(b) of the Rules and Regulations;
and prior to such closing date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or shall be pending or, to the knowledge of
the Company or you, shall be contemplated by the Commission; and any request of
the Commission for inclusion of additional information in the Registration
Statement, or otherwise, shall have been complied with to your reasonable
satisfaction.
(b) You shall be reasonably satisfied that since the respective dates as of
which information is given in the Registration Statement and Prospectus, (i)
there shall not have been any change in the capital stock of the Company, except
as contemplated in the Prospectus for the Reorganization, or any material change
in the consolidated indebtedness (other than as disclosed in the Prospectus) of
the Company, (ii) except as set forth or contemplated by the Registration
Statement or the Prospectus, no material verbal or written agreement or other
transaction shall have been entered into by the Company, which is not in the
ordinary course of business and which could result in a material reduction in
the future earnings of the Company, (iii) no loss or damage (whether or not
insured) to the property of the Company shall have been sustained which
materially and adversely affects the condition (financial or otherwise),
business, results of operations or prospects of the Company, (iv) no legal or
governmental action, suit or proceeding affecting the Company which is material
to the Company or which affects or may affect the transactions contemplated by
this Agreement shall have been instituted or threatened, (v) no enforcement
proceeding, whether formal or informal, shall have been commenced against the
Company or any of the Subsidiaries by the FDIC, the OTS or any other
governmental agency, nor shall any such proceeding have been instituted,
threatened or recommended, except for _____________ as disclosed in the
Prospectus, and (vi) there shall not have been any material change in the
condition (financial or otherwise), business, management, results of operations
or prospects of the Company which makes it impractical or inadvisable in the
judgment of the Underwriter to proceed with the public offering or purchase the
Common Shares as contemplated hereby.
(c) There shall have been furnished to you, in form and substance
satisfactory to you except as otherwise expressly provided below:
17
(i) The favorable opinion of Xxxxxxx, Xxxxxx & Xxxxxxxx, counsel for the
Company, addressed to the Underwriter and dated as of the First Closing Date or
the Second Closing Date, as the case may be, and in form and substance
satisfactory to counsel for the Underwriter, to the effect that:
(1) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(2) The Company and each of the Subsidiaries have full corporate
power and authority to own their respective properties and to conduct their
businesses as described in the Registration Statement and Prospectus, and the
Company has full corporate power and authority to enter into and perform its
obligations under this Agreement.
(3) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of California and in each
jurisdiction in which the failure to so qualify would have a material adverse
effect upon the financial condition, results of operations or business of the
Company and the Subsidiaries, taken as a whole.
(4) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization."
(5) The Common Shares have been duly and validly authorized for
issuance and sale and, when issued and delivered by the Company against payment,
will be duly and validly issued, fully paid and nonassessable.
(6) The issuance of the Common Shares is not subject to preemptive or
other similar rights arising by operation of law or, to the best of such
counsel's knowledge, otherwise.
(7) (A) The Bank has been duly chartered, and at all times since the
date hereof and at the First Closing Date or Second Closing Date, as the case
may be, validly existing and in good standing under the laws of the United
States of America as a federal savings bank with full corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus; and (B) each of
the other Subsidiaries has been duly incorporated and at all times since the
date hereof and at the First Closing Date or Second Closing Date, as the case
may be, validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation or organization, as applicable, with full
corporate power and authority to own, lease and operate its
18
properties and to conduct its business as described in the Registration
Statement and the Prospectus.
(8) Each of the Subsidiaries is duly qualified as a foreign corporation to
transact business in each jurisdiction in which the failure to so qualify would
have a material adverse effect upon its financial condition, results of
operations or business.
(9) The deposit accounts of the Bank are insured by the FDIC up to the
applicable limits.
(10) The activities of the Bank are permissible activities of federal
savings banks under federal law and the rules, regulations, resolutions and
practices of the OTS.
(11) All of the issued and outstanding shares of capital stock of each of
the Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable, and upon completion of the Reorganization, all such capital stock
will be owned of record and beneficially by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, or legal or equitable
claim, except for _____________.
(12) The execution and delivery of this Agreement, the issuance of the
Common Shares by the Company and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action of the Company; the consummation of the transactions described
in the Prospectus as constituting the "Reorganization" have been duly and
validly authorized by all necessary actions of the Company and the Bank; the
Bank and the Company have received all approvals, authorizations, consents or
other orders of governmental bodies (including the OTS where applicable)
necessary to consummate the Reorganization; this Agreement constitutes the
legal, valid and binding agreement of the Company, enforceable in accordance
with its terms, except as rights to indemnity and contribution hereunder may be
limited under applicable law (it being understood that such counsel may avail
itself of customary exceptions concerning the effect of bankruptcy, insolvency
or similar laws and the availability of equitable remedies); and, to the best of
such counsel's knowledge, the execution and delivery of this Agreement, the
incurrence of the obligations herein set forth and the consummation of the
transactions contemplated herein will not conflict with or constitute a breach
of, or default under, and no event has occurred which, with notice or lapse of
time or both, would constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance that, individually or in the
19
aggregate, would have a material adverse effect upon the financial condition,
results of operations or business of the Company pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which it may be bound,
or to which any of the property or assets of the Company or any of the
Subsidiaries is subject, nor will such execution or delivery result in any
violation of the provisions of the Certificate of Incorporation, Articles of
Incorporation, Bylaws or other organizational document, as the case may be, of
the Company or any of the Subsidiaries.
(13) The Registration Statement is effective under the Act and, to the best
of such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act or proceedings therefor
initiated or threatened by the Commission.
(14) No further approval, authorization, consent or other order of any
federal or state board or body is required in connection with the execution and
delivery of this Agreement or the issuance of the Common Shares, except as may
be required under the securities or Blue Sky laws of various jurisdictions, as
to which no opinion need be rendered.
(15) At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements and statistical and
financial data included therein, as to which no opinion need be rendered)
complied as to form in all material respects with the requirements of the Act
and the Rules and Regulations.
(16) The Common Stock conforms to the description thereof contained in the
Prospectus, and the form of certificate used to evidence the Common Stock is in
due and proper form and complies with all applicable statutory requirements.
(17) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened against or affecting the Company
or any of the Subsidiaries which are required, individually or in the aggregate,
to be disclosed in the Registration Statement or Prospectus, other than those
disclosed therein.
(18) The information contained in the Prospectus under "Risk Factors,"
"Supervision and Regulation," "Description of Capital Stock," "______ Stock
Option Plan," "____________," "____________" and "____________," to the extent
that such information constitutes matters of
20
law, summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(19) To the best of such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or
Prospectus or to be filed as exhibits thereto, other than those described or
referred to therein or filed as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(20) To the best of such counsel's knowledge, the Company and each of
the Subsidiaries hold all licenses, permits and other governmental
authorizations currently required for the conduct of their respective
businesses under the federal laws of the United States, the laws of the
State of California and the Delaware General Corporation Law, as described
in the Registration Statement and Prospectus, except for such licenses,
approvals or authorizations the failure of which to hold would not result in
a material adverse change in the financial condition, results of operations
or the business of the Company and the Subsidiaries, taken as a whole; all
such licenses, permits and other governmental authorizations are in full
force and effect, and the Company and the Subsidiaries operate their
respective businesses in all material respects in compliance therewith.
(ii) Such opinion of Manatt, Xxxxxx & Xxxxxxxx, LLP, counsel for the
Underwriter, dated the First Closing Date or the Second Closing Date, as the
case may be, with respect to the incorporation of the Company, the sufficiency
of all corporate proceedings and other legal matters relating to this Agreement,
the validity of the Common Shares, the Registration Statement and the Prospectus
and other related matters as you may reasonably require, and such counsel shall
have received such documents and shall have exhibited to them such papers and
records as they may reasonably request for the purpose of enabling them to pass
upon such matters. In connection with such opinion, such counsel may also rely
as to certain matters on the opinion of Xxxxxxx, Xxxxxx & Xxxxxxxx and on
representations or certificates of officers of the Company and governmental
officials.
(iii) A certificate of the Company executed by the Chairman of the Board or
President and the Chief Financial or Accounting Officer, dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect that:
(1) The representations and warranties of the Company set forth in
Section 2 of this Agreement are true and correct in all material respects
and the Company has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be performed
21
or satisfied on or prior to such Closing Date.
(2) The Commission has not issued any order preventing or suspending
the use of the Prospectus or any Preliminary Prospectus filed as a part of
the Registration Statement or any amendment thereto; no stop order
suspending the effectiveness of the Registration Statement has been issued;
and to the best of the knowledge of the respective signers, no proceedings
for that purpose have been instituted or are pending or contemplated under
the Act.
(3) Neither the Registration Statement nor the Prospectus nor any
amendment or supplement thereto includes any untrue statement of a material
fact or omits to state any material fact required to be stated therein, or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(4) Since the initial date on which the Registration Statement was
filed with the Commission, no agreement, written or oral, transaction or
event has occurred which should have been set forth in an amendment to the
Registration Statement or in a supplement to or amendment of any prospectus,
which has not been disclosed in such a supplement or amendment.
(5) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus and except as disclosed in or
contemplated by the Prospectus, the Company has not sustained a material
loss or damage by strike, fire, flood, windstorm, earthquake, accident or
other calamity (whether or not insured).
(iv) At the time of the execution of this Agreement, a letter dated as of
the date hereof from Xxxxx Xxxxxxxx, LLP, Deloitte & Touche, LLP and Price
Waterhouse LLP, independent accountants, in form and substance satisfactory to
you, to the effect that (1) they are independent certified public accountants
with respect to the Company within the meaning of the Act and the Rules and
Regulations; (2) it is their opinion that the consolidated financial statements
and supporting schedules included in the Registration Statement and covered by
their opinions therein comply as to form in all material respects with the
applicable accounting requirements of the Act and the Rules and Regulations; (3)
based upon limited procedures as agreed upon by you and them and set forth in
detail in such letter, nothing has come to their attention which causes them to
believe that (A) the unaudited financial statements and supporting schedules of
the Company (or its predecessor) and the Subsidiaries included in the
Registration Statement, if any, do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the Rules
and Regulations or are not presented in conformity with generally accepted
accounting principles
22
applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement and the
Prospectus, (B) at a specified date not more than five days prior to the date
of this Agreement, there has been any increase in the consolidated long-term
or short-term debt, or any decrease in consolidated total assets, allowance
for loan losses, total deposits or net worth of the Company and the
Subsidiaries, in each case as compared with the amounts shown in the
financial statements included in the Registration Statement or, (C) during
the period from December 31, 1996 to a date not more than five days prior to
the date of this Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in net interest income, net
interest income after provision for loan losses, or net income of the Bank,
except in all instances for increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (4) in
addition to the examination referred to in their opinions and the limited
procedures referred to in clause (3) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in the
Registration Statement and Prospectus and which are specified by you, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company and the Subsidiaries identified in such letter.
(v) On the First Closing Date and the Second Closing Date (in the event of
a second closing), a letter addressed to you, from Xxxxx Xxxxxxxx, LLP,
Deloitte & Touche, LLP and Price Waterhouse LLP, independent accountants, the
first one to be dated the First Closing Date and the second one (in the event
of a second closing) to be dated the Second Closing Date, to the effect that
they reaffirm their statements made in the letter furnished to you pursuant
to Section 6(c)(iv) of this Agreement.
(vi) On or before the First Closing Date, letters from each director and
executive officer of the Company, in form and substance satisfactory to you,
confirming that for a period of one hundred and eighty (180) days after the
first date that any of the Common Shares are released by you for sale to the
public, such person will not directly or indirectly sell, offer to sell,
contract to sell or otherwise dispose of any shares of Common Stock or any
right to acquire such shares without the prior written consent of the
Representative, which consent may be withheld at the sole discretion of the
Representative.
(d) As of the First Closing Date and the Second Closing Date, as the case
may be, the Common Stock shall have been approved for quotation on the Nasdaq
National Market upon notice of issuance.
(e) As of the First Closing Date and the Second Closing Date, as the case
may be, (i) there shall not have occurred any material adverse change in the
financial markets in the United States or elsewhere or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effects of
which, in the judgment of the Representative, are so material and adverse as to
make it impracticable to market the Common Shares or to enforce contracts,
including subscriptions or
23
orders, for the sale of the Common Shares, and (ii) trading generally on
either the American Stock Exchange or the New York Stock Exchange shall not have
been suspended, and minimum or maximum prices for trading shall not have been
fixed, or maximum ranges for prices for securities have been required, by either
of said Exchanges or by order of the Commission or any other governmental
authority, and a banking moratorium shall not have been declared by either
Federal or New York State authorities.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Manatt, Xxxxxx & Xxxxxxxx, LLP, counsel for the Representative.
The Company shall furnish you with such manually signed or conformed copies of
such opinions, certificates, letters and documents as you reasonably request.
If any condition to the Underwriter's obligations hereunder to be satisfied
prior to or at the First Closing Date is not so satisfied, this Agreement at
your election will terminate upon written notification by you as Representative
to the Company without liability on the part of any Underwriter or the Company,
except for the expenses to be paid or reimbursed by the Company pursuant to
Section 5 hereof and except to the extent provided in Section 8 hereof.
7. Effectiveness of Registration Statement. Each party to this Agreement
---------------------------------------
will use its best efforts to cause the Registration Statement to become
effective, to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
8. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter, as the case may be, within
the meaning of the Act against any losses, claims, damages, liabilities or
expenses, joint or several, to which the Underwriter or such controlling person
may become subject, under the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or other federal or state law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company), insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof
as contemplated below) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or based upon written information supplied by the Company
filed in any state or jurisdiction to register or qualify any or all of the
Common Shares or to claim an exemption therefrom, or provided to any state or
jurisdiction to exempt the Company as a broker-dealer or its officers, directors
and employees as broker-dealers or agents under the securities laws thereof
(collectively, the "Blue Sky Application"), or arise out of or are based upon
the omission or alleged omission to state in any of them a material fact
required to be stated therein or necessary to make the statements in any of them
not misleading, or arise from any theory of liability whatsoever relating to or
arising from or based upon the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or
24
supplement thereto, or arise out of or are based in whole or in part upon any
inaccuracy in the representations and warranties of the Company contained herein
or any failure of the Company to perform its obligations hereunder or under law;
and will reimburse the Underwriter and each such controlling person for any
legal and other expenses as such expenses are reasonably incurred by the
Underwriter or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with the
information furnished to the Company pursuant to Section 3 hereof; provided,
further, that the foregoing indemnity with respect to any Preliminary Prospectus
shall not inure to the benefit of the Underwriter from whom the person asserting
any such loss, claim, damage or liability purchased the Common Shares that are
the subject thereof if such person did not receive a copy of the Prospectus (or
the Prospectus as supplemented) at or prior to the confirmation of the sale to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as supplemented).
In addition to its other obligations under this Section 8(a), the Company agrees
that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, or any inaccuracy
in the representations and warranties of the Company herein or failure to
perform its obligations hereunder, all as described in this Section 8(a), it
will reimburse the Underwriter (and, to the extent applicable, each controlling
person) on a monthly basis for all reasonable legal or other expenses incurred
in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Company's
obligation to reimburse the Underwriter (and, to the extent applicable each
controlling person) for such expenses and the possibility that such payments
might later be held to have been improper by a court of competent jurisdiction.
To the extent that any such interim reimbursement payment is so held to have
been improper, the Underwriter (and, to the extent applicable each controlling
person) shall promptly return it to the Company together with interest,
compounded daily, determined on the basis of the prime rate (or other commercial
lending rate for borrowers of the highest credit standing) announced from time
to time by Bank of America NT&SA, San Francisco, California (the "Prime Rate").
Any such interim reimbursement payments which are not made to the Underwriter
within 30 days of a request for reimbursement shall bear interest at the Prime
Rate from the date of such request. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) You will indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of the Act, against any losses,
claims, damages, liabilities or expenses to which the Company or any such
director, officer, or controlling person may become subject, under the Act, the
Exchange Act, or other federal or state statutory law or regulation, or at
common law or
25
otherwise (including in settlement of any litigation, if such settlement is
effected with your written consent), insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated below)
arise out of or are based upon any untrue or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each such case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, in reliance upon and in
conformity with the information furnished to the Company pursuant to Section 3
hereof; and will reimburse the Company or any such director, officer, or
controlling person for any legal and other expense reasonably incurred by the
Company or any such director, officer, or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. In addition to the other obligations under
this Section 8(b), you agree that, as an interim measure during the pendency of
any claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 8(b) which relates to information furnished to the
Company pursuant to Section 3 hereof, it will reimburse the Company (and, to the
extent applicable, each officer, director, controlling person) on a monthly
basis for all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of your obligation to reimburse the Company
(and, to the extent applicable, each officer, director, controlling person) for
such expenses and the possibility that such payments might later be held to have
been improper by a court of competent jurisdiction. To the extent that any such
interim reimbursement payment is so held to have been improper, the Company
(and, to the extent applicable, each officer, director or controlling person)
shall promptly return it to you together with interest, compounded daily,
determined on the basis of the Prime Rate. Any such interim reimbursement
payments which are not made to the Company within 30 days of a request for
reimbursement, shall bear interest at the Prime Rate from the date of such
request. This indemnity agreement will be in addition to any liability which you
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party for indemnity,
contribution or otherwise except to the extent the indemnifying party is
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it may wish, jointly
with all other indemnifying parties similarly notified, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party
26
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be a conflict between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the next preceding sentence or (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action, in each of which cases the fees and expenses of counsel shall be at
the expense of the indemnifying party (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel representing the indemnified parties who are parties to such
action; provided, however, if an indemnified party in any such action shall have
concluded that there may be legal defenses or rights available to it which are
different from, in actual or potential conflict with, or additional to those
available to other indemnified parties, such party shall have the right to
select an additional law firm to act as its separate counsel).
(d) If the indemnification provided for in this Section 8 is required by
its terms but is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party under subsections (a), (b) or
(c) of this Section 8 in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of any losses, claims, damages, liabilities or expenses referred to herein (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and you from the offering of the Common Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
you in connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and you, on the other hand, shall be deemed to be in the same respective
proportions as the total proceeds (net of underwriting commissions, but before
deducting expenses) from the offering of the Common Stock received by the
Company and the total underwriting commissions received by you to the aggregate
public offering price of the Common Stock. The relative fault of the Company and
you 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 or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by the Company or
you and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
27
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in subsection (c) of this Section
8, any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The provisions
set forth in subsection (c) of this Section 8 with respect to notice of
commencement of any action shall apply if a claim for contribution is to be made
under this subsection (d); provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under
subsection (c) for purposes of indemnification. The Company and you agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined solely by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this paragraph. Notwithstanding the provisions of this Section 8, you
shall not be required to contribute any amount in excess of the amount of the
total underwriting discounts and commissions received by you in connection with
the Common Shares underwritten by you and distributed to the public. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
fraudulent misrepresentation.
(e) It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in Sections 8(a) and 8(b) hereof,
including the amounts of any requested reimbursement payments and the method of
determining such amounts, shall be settled by arbitration conducted pursuant to
the Code of Arbitration Procedure of the NASD. Any such arbitration must be
commenced by service of a written demand for arbitration or written notice of
intention to arbitrate, therein electing the arbitration tribunal. In the event
the party demanding arbitration does not make such designation of an arbitration
tribunal in such demand or notice, then the party responding to said demand or
notice is authorized to do so. Such an arbitration would be limited to the
operation of the interim reimbursement provisions contained in Sections 8(a) and
8(b) hereof and would not resolve the ultimate propriety or enforceability of
the obligation to reimburse expenses which is created by the provisions of such
Sections 8(a) and 8(b) hereof.
9. Effective Date. This Agreement shall become effective immediately as
--------------
to Sections 5, 8, 10 and 11 and, as to all other provisions, (i) if at the time
of execution of this Agreement the Registration Statement has not become
effective, at 4:30 p.m., California Time, on the first full business day
following the effectiveness of the Registration Statement, or (ii) if at the
time of execution of this Agreement the Registration Statement has been declared
effective, at 4:30 p.m., California Time, on the first full business day
following the date of execution of this Agreement; but this Agreement shall
nevertheless become effective at such earlier time after the Registration
Statement becomes effective as you may determine as indicated by notice to the
Company or by release of any of the Common Shares for sale to the public. For
the purposes of this Section 9, the Common Shares shall be deemed to have been
so released upon the release for publication of any newspaper advertisement
relating to the Common Shares or upon the release by you of telegrams offering
the Common Shares for sale to securities dealers, whichever may occur first.
28
10. Termination. Without limiting the right to terminate this Agreement
-----------
pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice to you, or by
you by notice to the Company, at any time prior to the time this Agreement shall
become effective as to all of its provisions, and any such termination shall be
without liability on the part of the Company to you (except for the expenses to
be paid or reimbursed by the Company pursuant to Section 5 hereof and except to
the extent provided in Section 8 hereof) or of you to the Company (except to the
extent provided in Section 8 hereof).
(b) This Agreement may also be terminated by you prior to the First
Closing Date by notice to the Company (i) if trading in the Company's Common
Stock or other securities shall have been suspended by the Commission or any
securities exchange or market or additional material governmental restrictions,
not in force and effect on the date hereof, shall have been imposed upon trading
in securities generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange or on the American Stock Exchange or
in the over-the-counter market by the NASD, or trading in securities generally
shall have been suspended on either such exchange or market, or a general
banking moratorium shall have been established by federal, New York or
California authorities, (ii) if an outbreak of major hostilities or other
national or international calamity or any substantial change in political,
financial or economic conditions shall have occurred or shall have accelerated
or escalated to such an extent, as, in your judgment, to affect materially and
adversely the marketability of the Common Shares, (iii) if any adverse event
shall have occurred or shall exist which makes untrue or incorrect in any
material respect any statement or information contained in the Registration
Statement or Prospectus or which is not reflected in the Registration Statement
or Prospectus but should be reflected therein in order to make the statements or
information contained therein in light of the circumstances under which they
were made, not misleading in any material respect, or (iv) if there shall be any
action, suit or proceeding pending or threatened, or there shall have been any
development or prospective development involving particularly the business or
properties or securities of the Company or the transactions contemplated therein
which, in your reasonable judgment, is reasonably likely to materially and
adversely affect the Company's business or earnings and makes it impracticable
or inadvisable to offer or sell the Common Shares. Any termination pursuant to
this subsection (b) shall be without liability on your part to the Company or on
the part of the Company to you, except for expenses to be paid or reimbursed by
the Company pursuant to Section 5 hereof (which shall not be required to be paid
upon termination pursuant to clause (i) or (ii) above) and except to the extent
provided in Section 8 hereof.
11. Representations and Indemnities to Survive Delivery. The respective
---------------------------------------------------
indemnities, agreements, representations, warranties and other statements of the
parties hereto and of their respective officers set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on your behalf, the Company or any of your or their
respective partners, officers or directors or any controlling person, as the
case may be, and will
29
survive delivery of and payment for the Common Shares sold hereunder and any
termination of this Agreement.
12. Notices. All communications hereunder shall be in writing and, if
-------
sent to you shall be mailed, delivered or telegraphed and confirmed to you at
Friedman, Billings, Xxxxxx & Co., Inc., Lakeshore Towers, 00000 Xxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxx X. Xxxxxxxxx, with
a copy to Manatt, Xxxxxx & Xxxxxxxx, LLP, 00000 Xxxx Xxxxxxx Xxxxxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Esq.; and if sent to the
Company shall be mailed, delivered or telegraphed and confirmed to the Company
at _____________________________ Attention: ____________, President, with a copy
to Xxxxxxx, Xxxxxx & Xxxxxxxx, _________________________, Attention: Xxxx
Xxxxxxxx, Esq. The Company or you may change the address for receipt of
communications hereunder by giving notice to the other.
13. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto, and to the benefit of the officers and directors and
controlling persons referred to in Section 8, and in each case their respective
successors, personal representatives and assigns, and no other person will have
any right or obligation hereunder. Notwithstanding the foregoing, this
Agreement shall not be assignable by the parties. The term "successors" shall
not include any purchaser of the Common Shares from you as such, merely by
reason of such purchase.
14. Partial Unenforceability. The invalidity or unenforceability of any
------------------------
section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other section, paragraph or provision hereof. If any
section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make the remainder of
this Agreement valid and enforceable.
15. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the internal laws (and not the laws pertaining to conflicts of
laws) of the State of California.
16. General. This Agreement constitutes the entire agreement of the
-------
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in several
counterparts, each one of which shall be an original, and all of which shall
constitute one and the same document.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and you.
30
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed copies hereof, whereupon it will
become a binding agreement between the Company and you, all in accordance with
its terms.
Very truly yours,
LIFE FINANCIAL CORP.
By:_____________________________________
Name: Xxxxxx X. Perl
Title: President and Chief Executive Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted by us
in Irvine, California as of the date
first above written.
XXXXXXXX, BILLING, XXXXXX & CO., INC.
By:_____________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
31
