EXHIBIT 1
$.,000,000
First Republic Preferred Capital Corporation
1,000,000 Shares
.% Noncumulative Series B Preferred Stock
FORM OF UNDERWRITING AGREEMENT
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___________,2001
Xxxxx Fargo Xxx Xxxxxx, LLC
Xxxx, Xxxx & Co.
c/o Wells Fargo Xxx Xxxxxx, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
First Republic Preferred Capital Corporation, a Nevada corporation (the
"Company") and First Republic Bank (the "Bank"), a Federal Deposit Insurance
Corporation ("FDIC") insured Nevada chartered commercial bark, confirm their
agreement (the "Agreement") with Xxxxx Fargo Xxx Xxxxxx, LLC ("Xxxxx Fargo") and
Xxxx, Xxxx & Co. ("Xxxx, Xxxx" and together with Xxxxx Fargo, the
"Underwriters", which terms shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), with respect to the issue and sale
by the Company and the purchase by the Underwriters, acting severally and not
jointly, of the respective number set forth in Schedule A of the Company's .%
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Noncumulative Series B Preferred Stock (the "Series B Preferred Shares"), and
with respect to the grant by the Company to the Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase all
or any part of 180,000 additional shares of the Company's .% Noncumulative
Series B Preferred Stock to cover over-allotments, if any. The aforesaid
1,000,000 Series B Preferred Shares to be purchased by the Underwriters (the
"Initial Securities") and any part of the 180,000 shares of the Company's .%
Noncumulative Series B Preferred Stock subject to the option described in
Section 2(b) hereof (the "Option Securities") are hereinafter called,
collectively, the "Securities." Each of the Securities is exchangeable, on the
terms set forth in the Certificate of Designations of the Company for the Series
B Preferred Shares (the "Certificate of Designations"), into 1/40 of a share of
the Bank's .% Noncumulative Series B Preferred Stock (the "Bank Preferred
Shares"), which such Bank Preferred Shares are described in and subject to the
conditions set forth in the Certificate of Designations of the Bank (the "Bank
Certificate of Designations"). The Securities issued in book-entry form will be
issued to Cede & Co. as nominee of The Depository Trust Company ("DTC") pursuant
to an additional or supplemental letter agreement
(the "DTC Agreement"), to be dated on or prior to the Closing Time (as defined
in below), between the Company and DTC.
The Company and the Bank understand that the Underwriters propose to
make a public offering of the Securities as soon as the Underwriters deem
advisable after this Agreement has been executed and delivered.
The Company and the Bank have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-11 (No.
333-72510) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto and schedules thereto at the time it became effective and including the
Rule 430A Information and the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus in the form first furnished to the Underwriters for use in connection
with the offering of the Securities is herein called the "Prospectus." If Rule
434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated _____, 2001 together with the Term Sheet and all references in
this Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any Term Sheet or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included," "disclosed" or "stated"
in the Prospectus (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which are incorporated by reference in the Prospectus.
SECTION 1. Representations and Warranties.
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(a) Each of the Company and the Bank, jointly and severally,
represents and warrants to each of the Underwriters as of the date hereof and as
of the Closing Time, and agree with each of the Underwriters as follows:
(i) Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued
and at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434 and
the Prospectus shall not be "materially different", as such term is
used in Rule 434, from the prospectus included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Xxxxx Fargo expressly for
use in the Registration Statement or Prospectus.
(ii) The Company and the Bank have not distributed and,
prior to the later to occur of (i) the Closing Date and (ii) completion
of the distribution of the Securities, they will not distribute any
offering materials in connection with the offering and sale of the
Securities other than the Registration Statement, the Preliminary
Prospectus, the Prospectus or other materials, if any, permitted by the
1933 Act and the 1933 Act Regulations.
(iii) The financial statements of the Bank included in the
Prospectus and the Registration Statement present fairly in all
material respects the financial position of the Bank and its
consolidated subsidiaries as of the dates indicated and the
consolidated results of operations and consolidated changes in
financial position of such entities for the periods specified; such
financial statements comply as to form with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and
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have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis. The balance sheet of
the Company included in the Prospectus and the Registration Statement
presents fairly in all material respects the financial position of the
Company as of the date indicated; such balance sheet complies as to
form with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations and has been prepared in conformity with GAAP
applied on a consistent basis. The selected financial data included in
the Prospectus and Registration Statement present fairly in all
material respects the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements
included in therein.
(iv) To the knowledge of the Company and the Bank, the
accountants who certified the financial statements and supporting
schedules of the Company and the Bank and its consolidated subsidiaries
included in or incorporated by reference in the Prospectus and the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(v) Since the respective dates as of which information is
given in the Prospectus and the Registration Statement, except as may
otherwise be stated in, or referred to therein: (A) there has not been
any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs, business prospects or operations
of (i) the Company, whether of not arising in the ordinary course of
business (a "Company Material Adverse Effect") or (ii) the Bank and its
subsidiaries, whether or not arising in the ordinary course of business
(a "Bank Material Adverse Effect" and, together with a Company Material
Adverse Effect, a "Material Adverse Effect"), (B) there have been no
transactions entered into by: (i) the Company or (ii) the Bank or any
of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company or the Bank
and its subsidiaries, as the case may be, and (C) except as disclosed
in the Prospectus and the Registration Statement, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its stock.
(vi) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Nevada and has full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus and the Registration Statement and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be in
good standing would not result in a Company Material Adverse Effect.
(vii) The Bank has been duly organized and is validly
existing as a Nevada banking corporation with full power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and the Registration Statement and to enter
into its obligations under this Agreement; the Bank is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to
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so qualify or be in good standing would not result in a Bank Material
Adverse Effect. The Bank's deposit accounts are insured by the FDIC to
the fullest extent provided under applicable law, and no proceedings
for the termination or revocation of such insurance are pending or to
the knowledge of the Bank, threatened.
(viii) The Company has no subsidiaries.
(ix) Each subsidiary of the Bank (other than the Company)
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has full power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus and the
Registration Statement (or, if not so described, as presently
conducted), and is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property of the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a
Bank Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Bank has been duly authorized and
validly issued and is fully paid and nonassessable and is owned,
directly or through other subsidiaries of the Bank, by the Bank; and
all of the capital stock of each subsidiary of the Bank that is owned
by the Bank, directly or through other subsidiaries of the Bank, is
owned free and clear of any pledge, lien, encumbrance, claim or equity.
(x) The Company and the Bank and its subsidiaries have good
and marketable title to all properties (real and personal) owned by the
Company and the Bank and its subsidiaries, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectus and the Registration Statement or (b) do not, singly or in
the aggregate, have a Material Adverse Effect.
(xi) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus and the Registration
Statement in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
this Agreement and redemptions contemplated in the Prospectus and the
Registration Statement). The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable. None of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive
or other similar rights of any security holder of the Company. Except
as set forth in the Prospectus and the Registration Statement, all of
the outstanding shares of common stock, par value $0.01 per share (the
"Common Stock"), are owned by the Bank free and clear of any liens,
charges or encumbrances.
(xii) All of the outstanding shares of common stock of
the Bank have been duly authorized and validly issued, are fully paid
and nonassessable. The authorized, issued and outstanding capital stock
and any outstanding short-term debt, long-term debt and capital lease
obligations of the Bank at September 30, 2001 are as set forth in the
consolidated financial statements of the Bank included in the
Prospectus and the Registration Statement, and any subsequent
borrowings and issuances have been made in the ordinary course of
business.
(xiii) This Agreement has been duly authorized, executed
and delivered
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by each of the Company and the Bank.
(xiv) The Securities have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable; the Securities conform in all material respects to the
statements relating thereto contained in the Prospectus and the
Registration Statement and such description conforms in all material
respects to the provisions of the Certificate of Designations; the relative
rights, preferences, interests and powers of the Securities are as set
forth in the Certificate of Designations relating thereto; and the issuance
of the Securities is not subject to the preemptive or other similar rights
of any security holder of the Company.
(xv) The Bank Preferred Shares have been duly authorized and, when
issued upon an Exchange Event (as defined in the Prospectus and the
Registration Statement), will have been validly issued and fully paid and
non-assessable; the Bank Preferred Shares conform in all material respects
to the statements relating thereto contained in the Prospectus and the
Registration Statement and such description conforms in all material
respects to the provisions of the Bank Certificate of Designations and the
resolutions of the Bank relating thereto (the "Bank Resolutions"); the
relative rights, preferences, interests and powers of the Bank Preferred
Shares are as set forth in the Bank Certificate of Designations and the
Bank Resolutions relating thereto; and the issuance of the Bank Preferred
Shares is not subject to the preemptive or other similar rights of any
security holder of the Bank.
(xvi) None of the Bank, the Company or any of the Company's
subsidiaries is in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Bank, the Company or any of the Company's subsidiaries is a party
or by which it or any of them may be bound, or to which any of the property
or assets of the Bank, the Company or any of the Company's subsidiaries is
subject except for such defaults that would not result in a Material
Adverse Effect. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein and in the
Prospectus and the Registration Statement, (including the issuance and sale
of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus and the Registration Statement
under the caption "Use of Proceeds") and compliance by the Company and the
Bank with their respective obligations hereunder have been duly authorized
by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
result in a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of their respective property or assets pursuant to
their respective articles of incorporation, charter or by-laws or any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which it is a party or by which it may be bound,
or to which any of its property or assets is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material
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Adverse Effect), nor will such action result in any violation of the
provisions of their respective articles of incorporation, charter or
by-laws or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over them or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or the Bank, as applicable.
(xvii) Except as disclosed in the Prospectus and the Registration
Statement , the Company and the Bank and its subsidiaries are conducting
their respective businesses in compliance in all material respects with all
laws, rules, regulations, decisions, directives and orders (including,
without limitation, all regulations and orders of, or agreements with, the
FDIC and the Commissioner, Department of Business and Industry, Financial
Institutions Division, State of Nevada) applicable to them. There is no
action, suit, investigation or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or,
to the knowledge of the Company or the Bank, threatened against or
affecting the Bank or any of its subsidiaries (A) that is required to be
disclosed in the Prospectus and the Registration Statement and not
disclosed therein, (B) that could result in a Company Material Adverse
Effect or a Bank Material Adverse Effect or (C) that could adversely affect
the consummation of the transactions contemplated in this Agreement.
(xviii) Each of the agreements listed in Schedule B hereto has been
duly authorized, executed and delivered by the Company or the Bank, as the
case may be, and constitutes a valid and legally binding obligation of the
Company or the Bank, as the case may be, enforceable in accordance with its
terns, subject to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights.
(xix) At the Closing Time, the Bank will be the beneficial owner of
at least 90% of the outstanding common stock of the Company.
(xx) There are no contracts or documents which are required to be
described in the Prospectus and the Registration Statement or to be filed
as exhibits thereto which have not been so described and filed as required.
(xxi) The Company is organized and carries on its business so as to
qualify as "real estate investment trust" (a "REIT") under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Code"),
and no transaction or other event has occurred which would cause the
Company to fail to qualify as a REIT for its current taxable year or for
future taxable years.
(xxii) The Bank and the Company and its subsidiaries own or possess,
or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names
or other intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and none of the
Bank, the Company or any of the Company's subsidiaries has received any
notice or is otherwise
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aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Bank, the Company or any of
the Company's subsidiaries therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in
a Material Adverse Effect.
(xxiii) Neither the Company nor the Bank is, and upon the issuance
and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus and the
Registration Statement, neither the Company nor the Bank will be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xxiv) The Company (i) is the sole owner of the Mortgage Loans (as
defined in the Prospectus and the Registration Statement) and such
ownership is free and clear of any lien, security interest or other
encumbrance, (ii) has not granted, and will not grant, any participation or
other interest or assignment, other option or rights to the Mortgage Loans,
and (iii) has not pledged, collaterally assigned or otherwise hypothecated
any interest therein.
(xxv) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Company or the Bank of their respective obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder
or the consummation of the transactions contemplated by this Agreement,
except (i) such as have been already obtained or as may be required under
the 1933 Act or the 1933 Act Regulations or state securities laws, the
filing of the Certificate of Designations, and the Bank Certificate of
Designations with the appropriate authority in the State of Nevada and (ii)
those which would not have a Material Adverse Effect.
(xxvi) The Company and the Bank and its subsidiaries have filed all
federal, state, local and foreign tax returns that are required to be filed
or have duly requested extensions thereof and have paid all taxes required
to be paid by any of them and any related assessments, fines or penalties,
except for any such tax, assessment, fine or penalty that is being
contested in good faith anal by appropriate proceedings, except where the
failure to do so would not have a Material Adverse Effect; and adequate
charges, accruals and reserves have been provided for in the financial
statements referred to in Section 1(a)(iv) above in respect of all federal,
state, local and foreign taxes for all periods as to which the tax
liability of the Company or the Bank or its subsidiaries has not been
finally determined or remains open to examination by applicable taxing
authorities, except where the failure to do so would not have a Material
Adverse Effect.
(xxvii) The Company and the Bank and its subsidiaries carry or are
entitled to the benefits of insurance in such amounts and covering such
risks as is generally maintained by companies of established repute engaged
in the same or similar business and of the same or similar size and
complexity, and all such insurance is in full force and effect.
(xxviii) The Company and the Bank and its subsidiaries possess all
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material permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by each of them
or proposed to be operated by them as described in the Prospectus and
the Registration Statement; the Company and the Bank and its
subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure to so comply
would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor the Bank has received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate would result in a Material Adverse
Effect.
(xxix) No labor dispute with the employees of the Company or the
Bank or any subsidiary exists or, to the knowledge of the Company or the
Bank, is imminent, which may reasonably be expected to result in a Material
Adverse Effect.
(xxx) Neither the Company nor the Bank has taken nor will take,
directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Securities.
(xxxi) Within the period of the preceding six months prior to the
date hereof, neither the Company or the Bank nor any other person acting on
behalf of the Company or the Bank has offered or sold to any person any
Securities, or any securities of the same or a similar class as the
Securities, other than the Securities offered or sold to the Underwriters.
(xxxii) The Bank Preferred Shares are exempt securities under Section
3(a)(5) of the 1933 Act, and registration of the Bank Preferred Shares
under the 1933 Act, is not required in connection with the offer, sale,
issuance or delivery of the Bank Preferred Shares as contemplated herein.
(xxxiii) Prior to the Closing Time, the Bank shall have filed a dated
copy of the Certificate of Designations and the Bank Certificate of
Designations, duly authorized and adopted by the Bank, with the applicable
regulatory body providing for the issuance of the Bank Preferred Shares.
(xxxiv) The representations and warranties of the Company or the Bank
contained in the agreements listed on Schedule B attached hereto are, as of
the date hereof and will be as of Closing Time, true and correct.
(xxxv) Except as described in the Registration Statement and except
as would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in violation
of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
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contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) there are no events
or circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxxvi) Except as described in the Registration Statement and the
Prospectus there are no persons with registration rights or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 0000 Xxx.
(b) Any certificate signed by any duly authorized officer of the Company
or the Bank and delivered to you or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company or the Bank, as the case may
be, to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Each Underwriter; Closing.
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(a) Initial Securities. On the basis of the representations and
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warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at a price of $. per Initial Security, the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter, plus
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any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
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and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 180,000 shares of the Company's
.% Noncumulative Series B Preferred Stock at a price of $. per Option Security.
The option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Underwriters to the
Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a "Date
of Delivery") shall be determined by the Underwriters, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities set
10
forth in Schedule A opposite the name of such Underwriter bears to the total
----------
number of Initial Securities, subject in each case to such adjustments as the
Underwriters in their discretion shall make to eliminate any sales or purchases
of fractional shares.
(c) Deliveries of certificates for the Initial Securities shall be made at
the office of the Underwriters in New York (or at the offices of Sidley Xxxxxx
Xxxxx & Xxxx LLP specified below in the case of Securities registered in the
name of Cede & Co.), and payment of the purchase price for the Initial
Securities shall be made by Xxxxx Fargo on behalf of the Underwriters to the
Company by wire transfer of immediately available funds contemporaneous with
closing at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxxxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, at 10:00 A.M., PST, on _________, 2001, or such
other time as may be agreed upon by Xxxxx Fargo and the Company and the Bank
(such time and date of payment and delivery being herein called the "Closing
Time").
Payment for the Initial Securities purchased by the Underwriters shall be
made to the Company by wire transfer of immediately available funds, against
delivery for the account of the Underwriters of certificates for the Initial
Securities. Certificates for the Initial Securities shall be in such
denominations and registered in such names as the Underwriters may request in
writing at least one business day before the Closing Time.
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Xxxxx Fargo and
the Company, on each Date of Delivery as specified in the notice from the
Underwriters to the Company.
It is understood that each of the Underwriters has authorized Xxxxx Fargo
for its account to accept delivery of, receipt for and make payment of the
purchase price for the Securities which it has agreed to purchase. Xxxxx Fargo,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
Certificates for the Initial Securities and the Option Securities, if any,
shall be in such denominations and registered in such names as the Underwriters
may request in writing at least one full business day before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the
Initial Securities and the Option Securities, if any, will be made available for
examination and packaging by the Underwriters in The City of New York not later
than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Bank. The Company and the Bank,
-------------------------------------
jointly and severally covenant with each of the Underwriters as follows:
(a) The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Underwriters immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for
11
additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus,
or of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) The Company will give the Underwriters notice of its intention to
file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b)), any Term Sheet or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, will furnish the
Underwriters with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the Underwriters or counsel for the
Underwriters shall object.
(c) The Company has furnished or will deliver to the Underwriters and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein)
and signed copies of all consents and certificates of experts, and will
also deliver to the Underwriters, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the Securities Exchange Act
of 1934 (the "1934 Act"), such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) The Company will comply with the 1933 Act and the 1933 Act
Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for the Underwriters or for the Company, to amend the Registration
Statement or amend or
12
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Underwriters may designate and to maintain such qualifications in effect
for a period of not less than one year from the later of the effective date
of the Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) The Company will timely file such reports pursuant to the 1934 Act
as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) The Company will use its best efforts to effect and maintain the
quotation of the Securities on the Nasdaq National Market and will file
with the Nasdaq National Market all documents and notices required by the
Nasdaq National Market of companies that have securities that are traded in
the over-the-counter market and quotations for which are reported by the
Nasdaq National Market.
(i) The Company will not without the prior written consent of Xxxxx
Fargo, offer, sell, contract to sell, pledge, or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with the
Company or any affiliate of the Company), directly or indirectly, including
the filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, with respect to any
securities with characteristics and terms similar to or convertible into,
or exercisable, or exchangeable for, Securities or Bank Preferred Shares;
or publicly announce an intention to effect any such transaction, for a
period of 30 days after the date of the Underwriting Agreement.
13
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within
the time periods required by the 1934 Act and the rules and regulations of
the Commission thereunder.
(k) The Company will advise the Underwriters promptly, and if
requested by Underwriters, will confirm such advice in writing, so long as
delivery of a prospectus relating to the Securities by an underwriter or
dealer may be required under the 1933 Act or the 1933 Act Regulations, of
(i) any material change in the Company's or the Bank's condition (financial
or otherwise), prospects, earnings, business or properties or (ii) any new
material information relating to the Company or the Bank or relating to any
matter stated in the Prospectus or the Registration Statement which comes
to the attention of the Company.
(l) The Company will cooperate with the Underwriters and use their
reasonable best efforts to permit the Securities, other than in
certificated form, to be eligible for clearance and settlement through the
facilities of DTC.
(m) The Company will use the proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(n) The Company and the Bank will each continue to use its best
efforts to qualify as a REIT under the Code
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the performance
--------
of its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectus and any amendments or supplements thereto, (vii)
the preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (viii) the fees and expenses of any
transfer agent or registrar for the Securities, (ix) any fees charged by
securities rating services for rating the Securities and (x) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Securities
and the fees and expenses incurred in connection with the inclusion of the
Securities in the Nasdaq National Market.
(b) Termination of Agreement. If this Agreement is terminated by the
------------------------
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i),
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees
14
and disbursements of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters. It is understood, however, that except as provided in this Section
4, the Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel and any advertising expenses connected with any
resales.
SECTION 5. Conditions of the Underwriters' Obligations. The obligations of
-------------------------------------------
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company and the Bank contained in Section 1 hereof or in
certificates of officer of the Company or the Bank or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
and the Bank of their obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
---------------------------------------
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A)
or, if the Company has elected to rely upon Rule 434, a Term Sheet shall
have been filed with the Commission in accordance with Rule 424(b).
(b) Opinions of Counsel for the Company and the Bank. At the Closing
------------------------------------------------
Time, the Underwriters shall have received favorable opinions in form and
substance satisfactory to counsel for the Underwriters, dated as of the
Closing Time, of each of Xxxxxxxx Chance Xxxxxx & Xxxxx, LLP, special
counsel to the Company and the Bank, Xxxxxxxx Chance Xxxxxx & Xxxxx, LLP,
special tax counsel to the Company, Lionel, Xxxxxx & Xxxxxxx, special
Nevada counsel to the Company and the Bank and Xxxxxx X. Xxxxxxxxx, Senior
Vice President and General Counsel of the Bank, each of which is attached
hereto as Exhibits A, B, C and D, respectively.
(c) Opinion of Counsel for Underwriters. At the Closing Time, the
-----------------------------------
Underwriters shall have received the favorable opinion, dated and legal
existence of the Company, the Securities, this Agreement, the Registration
Statement and the Prospectus and other related matters as the Underwriters
may require. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and the Bank and its
subsidiaries and certificates of public officials. In giving such opinion
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of California, the State of
New York and the federal law of the United States upon the opinion by
counsel satisfactory to the Underwriters.
(d) Certificates. At the Closing Time, there shall not have been,
------------
since the date hereof or since the respective dates as of which information
is given in the Prospectus, any Material Adverse Effect, and the
Underwriters shall have received a certificate of the Chief Executive
Officer, the President or any Executive Vice President or Senior Vice
15
President of each of the Company and the Bank and of the chief financial
officer or the chief accounting officer of each of the Company and the
Bank, dated as of the Closing Time, to the effect that, to his or her
knowledge, (i) there has been no such Material Adverse Effect, (ii) the
representations and warranties in Section 1 hereof were true and correct
when made and are true and correct in all material respects with the same
force and effect as though expressly made at and as of the Closing Time,
(iii) the Company or Bank, as the case may be, have complied in all
material respects with all agreements and satisfied all conditions on their
part to be performed or satisfied at or prior to the Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or
are pending or are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of execution of this
---------------------------
Agreement, the Underwriters shall have received from KPMG LLP a letter
dated such date, in form and substance satisfactory to the Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the Underwriters
-------------------------
shall have received from KPMG LLP a letter, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section.
(g) Maintenance of Rating. At the Closing Time, the Securities shall be
---------------------
rated at least "BB" by Standard & Poor's Rating Services, a division of
McGraw Hill, Inc., "BB+" by Duff and Xxxxxx Rating Co. and "BB+" by Fitch
IBCA, Inc. and the Bank shall have delivered to the Underwriters a letter
dated the Closing Time, from each such rating agency, or other evidence
satisfactory to the Underwriters, confirming that the Securities have such
ratings; and between the date of this Agreement and the Closing Time, there
shall not have occurred a downgrading in the rating assigned to the
Securities or any of the Company's or the Bank's debt securities by any
nationally recognized statistical rating organization, and no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, or that it otherwise has a
negative outlook with respect to, its rating of any of the Securities or
any of the Bank's other securities.
(h) No Objection. The NASD has confirmed that it has not raised any
------------
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) Approval of Listing. At Closing Time, the Securities shall have
-------------------
been approved for inclusion in the Nasdaq National Market, subject only to
official notice of issuance.
(j) Additional Documents. At the Closing Time, counsel for the
--------------------
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties of the
Company and the Banks, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company and the Banks in
connection
16
with the issuance and sale of the Securities as herein contemplated shall
be reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(k) Conditions to Purchase of Option Securities. In the event that the
-------------------------------------------
Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any subsidiary of the Company
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Underwriters shall have received:
(i) Certificates. A certificate, dated such Date of Delivery, of
------------
the Chief Executive Officer, the President or any Executive Vice President
or Senior Vice President of each of the Company and the Bank and of the
chief financial officer or the chief accounting officer of each of the
Company and the Bank confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(ii) Opinion of Counsel for Company and the Bank. The favorable
-------------------------------------------
opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx, LLP, special counsel to the
Company and the Bank, Xxxxxxxx Chance Xxxxxx & Xxxxx, LLP, special tax
counsel to the Company, Lionel, Xxxxxx & Xxxxxxx, special Nevada counsel to
the Company and the Bank and Xxxxxx X. Xxxxxxxxx, Senior Vice President and
General Counsel of the Bank, each in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable opinion of
-----------------------------------
Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion required
by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from KPMG LLP, in form
-------------------------
and substance satisfactory to the Underwriters and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to the Underwriters pursuant to Section 5(f) hereof, except that
the "specified date" in the letter furnished pursuant to this paragraph
shall be a date not more than five days prior to such Date of Delivery.
(v) No Downgrading. Subsequent to the date of this Agreement, no
--------------
downgrading shall have occurred in the rating accorded the Securities or of
any of the Company's other securities by any of the rating agencies listed
in paragraph 5(g) hereof, and no such organization shall have publicly
announced that it has under surveillance or review its ratings of any of
the Company's securities.
(l) Termination of Agreement. If any condition specified in this
------------------------
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Underwriters by written notice to
the Company and the Bank at any time at or prior to the Closing Time, and
such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 6, 7 and 8 shall
survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. Each of the Company and the Bank
-------------------------------
agree to jointly and severally indemnify and hold harmless each Underwriter and
each person, if any, who
17
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(c) below) any such settlement is effected with the written consent of the
Company and the Bank; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to the third sentence of Section 6(c) hereof, the fees
and disbursements of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
-------- -------
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company or the Bank by any Underwriter through Xxxxx Fargo expressly
for use in the Prospectus (or any amendment thereto).
(b) Indemnification of the Company and the Bank, Directors and Officers.
-------------------------------------------------------------------
Each Underwriter agrees, severally, to indemnify and hold harmless the Company
and the Bank, their directors and officers, and each person, if any, who
controls the Company or the Bank within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Prospectus in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Xxxxx Fargo expressly for use in the
Prospectus.
(c) Actions against Parties; Notification. Each indemnified party shall
-------------------------------------
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action; or, if it so elects within a reasonable time after
receipt of such notice, to assume the defense of any suit brought to enforce any
such claim; but if it so elects to assume the defense, such defense shall be
18
conducted by counsel chosen by it and approved by the indemnified parties or any
person or persons controlling the respective indemnified parties, defendant or
defendants in any suit so brought, which approval shall not be unreasonably
withheld. In the event that an indemnifying party elects to assume the defense
of any such suit and retain such counsel, the indemnified party or parties or
such controlling person or persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel thereafter retained by such
indemnified party or parties or controlling person; provided, however, that the
indemnified party or parties shall have the right to employ counsel (in addition
to local counsel) to represent the indemnified party or parties or any such
controlling person who may be subject to liability arising out of any action in
respect of which indemnity may be sought against the indemnifying party if, in
the reasonable judgment of counsel for the indemnified party or parties, there
may be a conflict of interest such that multiple representation would violate
the Code of Professional Responsibility or like governing rules, in which event
the fees and expenses of appropriate separate counsel shall be borne by the
indemnifying party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification could be sought under this Section 6 (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability ox a failure to act by or on behalf of any
indemnified party.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnification provided for in
Section 6 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Bank, on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) 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 the Bank, on the one
hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Bank, on the one
hand, and the Underwriters, on the other hand, in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total discount or commission received by the Underwriters,
bear to the aggregate initial offering price of the Securities.
19
The relative fault of the Company and the Bank, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and the Bank or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Bank and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities purchased by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each officer and director of the Company and the Bank, and each person, if any,
who controls the Company or the Bank within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company and the Bank. The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to the number of
Securities set forth opposite their respective names in Schedule A hereto and
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not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
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All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or the Bank submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company or the Bank, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
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(a) The Underwriters may terminate this Agreement, by notice to the Company
or the Bank, at any time at or prior to Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus, any Material Adverse Effect, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or elsewhere, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change
20
in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Underwriters, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Bank has been suspended or limited by the Commission, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the over-the-counter market has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority or if a material
disruption in commercial banking or securities settlement, or clearance services
in the Untied States occurs, or (iv) if a banking moratorium has been declared
by either federal, New York or Nevada authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other xxxxx except as
provided in Section 4 hereof, and provided further that Sections 1, 6 and 7
shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at the Closing Time to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Underwriters shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the nondefaulting Underwriters, or any
other Underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such arrangements
within such 24-hour period, then this Agreement shall terminate without
liability on the part of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Underwriters or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Prospectus or in any other documents or
arrangements, provided that in no event may the Closing Time be postponed after
_______,2001. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
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be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters c/o Wells Fargo Xxx Xxxxxx,
LLP at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx: ., with a copy to Sidley
Xxxxxx Xxxxx & Xxxx LLP, Attention: Xxxxxx X. XxXxxxxx, Esq.; notices to the
Company and the Bank shall be directed to First Republic Bank, 000 Xxxx Xxxxxx,
Xxx Xxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx, Xx., Senior Vice President
and Chief Financial Officer; with a copy to Xxxxxxxx Chance Xxxxxx & Xxxxx, LLP,
Xxx Xxxxxxx Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Xxxx X. Xxxxx, Esq.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
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binding upon the Underwriters and the Company and the Bank and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and the Bank and their
21
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. Except as provided in the last sentence of
this Section 12, this Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and the
Company and the Bank and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
SECTION 14. Effect of Headings. The Article and Section headings herein are
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for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
each Underwriter and the Company and the Bank in accordance with its terms. The
execution and delivery of this Agreement by the Company and the Bank and its
acceptance, execution and delivery by or on behalf of the Underwriters may be
evidenced by an exchange of telecopied or other written communications.
Very truly yours,
FIRST REPUBLIC PREFERRED CAPITAL CORPORATION
By ____________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President of Operations and
Reporting
FIRST REPUBLIC BANK
By ____________________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President and General
Counsel
CONFIRMED AND ACCEPTED,
as of the date first above written:
Xxxxx Fargo Xxx Xxxxxx, LLC
Xxxx, Xxxx & Co.
22
By: Xxxxx Fargo Xxx Xxxxxx, LLC
By
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Name: Xxxxx Xxxxx
Title: Managing Director
23
